By LAURA WIKSTON
Recently, two high-profile news stories raise the issue of rights and responsibilities of drinking and serving alcohol.
The first instance involves two lawyers challenging new federal legislation against the so-called two-beer defence, in the Superior Court of Justice in Toronto. Under Prime Minister Stephen Harper’s Tackling Violent Crime Act, people accused of impaired driving after failing a breathalyzer test can no longer argue they had consumed just two beers or argue they drank their last beer not long before the breath test, thus skewing the test’s results. Instead, they must prove the breathalyzer machine malfunctioned or was improperly used.
Prior to the legislation, some accused people challenged an impaired charge by providing evidence about their drinking patterns and level of tolerance to alcohol.
The second instance involves 34 charges laid by the Ontario Provincial Police (OPP) against 16 employees of the Lake Joseph Club in Port Carling, Ont. Also charged was Clublink, the corporation that owns the golf course.
The charges stem from a horrific car crash last July that killed three young Toronto area men. The Ontario Alcohol and Gaming Commission (ACGO) and the OPP laid the charges under the Liquor Licence Act (LLA) after a joint investigation concluded the accident occurred after the club’s employees served alcohol to obviously intoxicated people.
Liz Roy is a consultant at the Niagara College Job Centre at the Maid of the Mist campus in Niagara Falls. The job centre offers free training to receive Smart Serve training. Roy says provincial law mandates that Smart Serve certification be held by anyone who serves alcohol.
The training provides information about the LLA, the legal responsibilities of serving alcohol and tools on how to deal with intoxicated persons.
Under section 29 of the LLA, it states: No person shall sell liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.
The three Lake Joseph Club employees charged served the Toronto men alcohol. The 13 executives of ClubLink Corporation who were charged weren’t at the club when the men were served.
Critics claim the multiple charges laid against the executives are unprecedented.
Mike Kershaw, a Niagara College Police Foundations program professor and former police officer, disagrees.
“This is not new,” Kershaw said. “A lot of different factors came into play with the Lake Joseph incident, but when violations of the LLA are found, charges are laid against the names that appear on the liquor licence application.”
In the Lake Joseph Club incident, ClubLink and the 13 executives were charged because their names appear on the liquor licence. Charges against two of the executives, who are no longer with the club, have since been dropped.
Alan Young and Joseph Neuberger, the lawyers challenging the abolishment of the two-beer defence on behalf of three clients, claim the Crown and the manufacturer shroud the particulars of breathalyzer machines in secrecy.
Kershaw disagrees with this claim too.
He says the police officers who operate the machines take a “very intense” course to qualify as a breathalyzer technician.
“Calibration and maintenance of the machines is done regularly. Pre-testing of a machine and the testing of an accused impaired driver are recorded on DVD.”
Cathy Cook of Welland is a community leader and victim services volunteer for Mothers Against Drinking and Driving (MADD). She represents all the municipalities in the Niagara Region except for St. Catharines. She says MADD was “hugely involved” with pushing for changes to the two-beer defence.
Cook hasn’t personally experienced the devastation caused by impaired drivers who kill and injure innocent people, but, she says, she has heard too many stories from victims and their families.
“Impaired driving is the No. 1 cause of criminal death in Canada. An average of four people a day are killed because of it,” Cook says.
Cook finds it “extremely frustrating” that impaired drivers get behind the wheel.
“It’s so selfish. People don’t get it. They think they are invincible and can handle drinking and driving.”
She says she wonders why impaired drivers take the risk of possibly killing others because of their choice to drive.
“They need to understand that dead is dead.”
She believes the multiple charges at the Lake Joseph Club are warranted.
“If the customers were visibly drunk, they shouldn’t have been served alcohol.”
Carolyn Swinson is co-president of the Toronto chapter of MADD and chairperson for MADD Canada. She does know first-hand the devastation to families when a loved one is killed by an impaired driver.
On Feb. 13, 1981, an impaired driver killed her father while he was walking home at night. The driver fled the scene. Scot Buxton’s leg was broken, severing the femoral artery and he bled to death.
On Feb. 12, 1993, an impaired driver killed her son Rob. Rob was driving home after buying his girlfriend a Valentine’s gift. A 32-year-old impaired woman lost control of her car. The car fishtailed and “wiped Rob’s car off the road.” The driver was eventually acquitted because of a technicality.
Swinson deals with the tragedies by speaking to high school students and convicted impaired-driving offenders about her loss.
Swinson says the offenders she speaks to are usually first-time offenders serving time in jail on weekends.
“I can tell by body language that some of them are not thrilled about talking with me. I treat them differently than the students. I get more personal and give them more details.”
Swinson says some offenders’ biggest concern is the financial loss they have incurred because of their convictions.
“I rarely talk about my own financial losses, but sometimes I tell them how after Rob’s death, it took me a year to pay off loans I had co-signed for him.”
Swinson says when she speaks to students she usually finishes with a powerful message: “There’s not one of your parents who would change places with me.”
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