听说过酒吧客人醉酒出事，酒吧老板有罪吗？

Analysis: Bar owners and their responsibility for our drunkenness
Shannon Kari, National Post (Canada)
Published: Tuesday, January 13, 2009


The liquor license charges stemming from a high-profile fatal crash in Ontario cottage country have raised questions about the obligations imposed on bar owners and employees. Simply put, how drunk is too drunk?

Put another way, sellers of alcohol are engaged in a legal activity when they provide drinks to patrons. But somewhere in the course of an evening, that legal action can become illegal. Determing the tipping point can be an uncertain business.

The Ontario Liquor Licence Act, which is similar to the provisions in other provinces, is awash with rules for bar owners, such as a minimum price for beer or rules on serving food. There was even a special regulation included to permit beer service for spectators at the recent World Junior Hockey Championships in Ottawa, because most of the hockey players in the tournament were under the age of 19.

The regulatory scheme is increasingly trying to turn bar owners into "babysitters" for their customers, suggested Toronto defence lawyer Todd White, who successfully defended a bar owner who was charged criminally in 1999 when an alcoholic customer fell down and died.

"In this politically correct society we have got now, what is never on the table is a voluntary assumption of risk. It is the government pointing fingers at people," said Mr. White.

Not only are bars not permitted to serve drunk customers, the regulations impose a positive duty to remove the patrons if they are intoxicated, with a reasonable amount of force, he noted. They could also be liable for a civil lawsuit if the customer does not get home safely.

And while there is an accepted level of alcohol in the blood that detemines whether someone is "impaired" for the purposes of operating a vehicle under the law, there is no such standard for "intoxicated."

"Intoxicated is not simply impaired," said Toronto defence lawyer Greg Lafontaine. "Intoxication requires you to be in a state where you are unable to care for yourself," he said.

The definition of intoxicated became pertinent again when Ontario Provincial Police announced on Monday that 16 individuals and ClubLink, the company that owns the Lake Joseph Golf club, have been charged under the Liquor Licence Act.

Three employees and each of the company's officers and directors have been charged with permitting "drunkenness" on a licensed premise and also of
violating a section that makes it an offence to serve someone who is intoxicated or appears to be intoxicated.

The charges were announced nearly six months after three Toronto men died when their car flipped over on the highway and ended up in the Joseph River.

An Ontario judge noted that to be legally intoxicated, someone must be "very drunk", in a 2004 decision that referred to principles explained by an Alberta court.

The Ontario Divisional Court noted last year that intoxicated and "drunkenness" are similar concepts.

If the Crown proves that the customers were legally intoxicated, a bar has a "positive obligation to ensure it is not serving drunk people," said Mr. Lafontaine, who is not acting in the ClubLink case.

The courts have conceded that the legal test is not easily defined, which may make it harder for bars to comply with the law.

"What constitutes drunkenness is very much a subjective assessment," the Ontario Divisional Court said in another case last year involving liquor licence charges against a bar.

While it is not uncommon for the Alcohol and Gaming Commission of Ontario to issue a complaint that could lead to a fine or suspension of a liquor license at a bar, the Lake Joseph Club case is unusual in that it is rare for police to lay charges against so many individuals in a company for alleged liquor act infractions on a single day.

It is also one of the most high-profile liquor act prosecutions in Ontario, in an area where offences normally result in a quiet plea bargain in provincial court, usually resulting in a fine.

"It is unusual," conceded Constable Maureen Tilson, a spokeswoman for the OPP detachment in Bracebridge. "It is because the accident was horrendous.

Three young people were killed," said Const. Tilson.

The charges are not criminal, but provincial offences. They still carry a maximum penalty of fines of up to $250,000 or a jail term of 12 months.

As a result, the provincial Crown must first prove beyond a reasonable doubt that the three men and their female friend were either intoxicated or appeared to be intoxicated.

Mr. White suggested the Club Link charges, especially those against the directors of the company, was an example of "over-reaching" by police.

"It is about disorderly conduct," said Mr. White, who explained that the relevant section of the liquor act also requires bars to prevent "riotous" and "quarrelsome" conduct, as well as drunkenness.

A spokeswoman for the Alcohol and Gaming commission said yesterday there is an "ongoing" investigation of the events at the Lake Joseph club last summer and it could lead to a licensing hearing.

"We are doing an investigation for what we do," said Lisa Murray, who added that the club has not faced any previous sanction by the commission.

The ClubLink defendants make their first appearance in court on Jan. 27.