The Shotgun Blog
Tuesday, May 09, 2006
Good decision; no solution
It would have been insane for the Supreme Court to rule other than as it did on the matter of a party host's liability for his guests' actions (which isn't to say it couldn't have happened). But my cycnical side suspects that Colby Cosh overstates the case when he says (subscribers only) that "Any poll would be likely to show ferocious public opposition to the concept of imposing a duty of care on hosts for their guests' behaviour after a party."
I don't think you would find ferocious public opposition to anything that would tangibly benefit a crippled young victim of a drunk driver and hypothetically decrease the incidence of such tragedies in the future. MADD is feverishly in support of imposing a duty of care on party hosts, and they raised nearly $11 million in donations in 2005. I suspect that you'd find roughly a 50/50 split on the question "Should a host be liable for his guests' actions," when posed in the context of Zoe Childs and Desmond Desormeaux, with "ferocious opposition" reserved for the question "Should you be liable for your guests' actions."
Cosh's larger point — that the distinction between bars and private homes seems arbitrary, and that the ideal state of affairs would make drunk driving the sole responsibility of the drunk driver — is very well taken:
[Chief Justice Beverly] McLachlin argues in her ruling that monitoring patrons for drunkenness is "relatively easy" for a bar serving hundreds of patrons. The curious implication is that doing so would be more difficult for a host serving five party guests. Publicans can be required to monitor their customers, she insists, because they possess "special knowledge about intoxication" that is not available to party hosts. The nature of this knowledge is not outlined -- but the reference must have been antagonizing to Childs' lawyers, since the entire point of their case was that Desmond Desormeaux's hosts did have "special knowledge" of his status as an alcoholic and chronic drunk driver.
For killing Derek Dupre and crippling Childs, his third drunk driving offence, Desormeaux served two years of a landmark ten-year sentence — this was then the harshest penalty ever handed out in Canada for impaired driving. Theoretically, he could have gotten life. I have no idea whether harsh sentencing would deter people like Desormeaux from driving drunk. I suspect they can't be deterred from much with ten or twelve rounds in. But I do know that there's nothing except his own easily medicated conscience to stop Desormeaux from doing this all over again to someone else, and that this state of affairs exists in clear violation of the spirit of the Criminal Code.
The crime is "impaired driving causing death." Inebriation isn't an excuse; it's a prerequisite. It makes a mockery of the law to impose penalties on repeat offenders that are so much more lenient than what its creators intended, and it endangers us all.
(Cross-posted to Tart Cider.)
Posted by Chris Selley on May 9, 2006 | Permalink
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Um...what is $11 million in fundraising supposed to prove, exactly? Prohibitionists have been with us for the better part of two centuries. That MADD maintains a fanatical core of support is no more significant now than a hundred years ago, when those nanny-statists would have belonged to the Women's Christian Temperance Union. I think you overestimate support for their particular brand of moral panic.
Posted by: Paul Denton | 2006-05-09 3:25:18 PM
The more things I hear from chief justice Bev Maclachlin the more I become convinced that intelligence is not a prerequisite to getting on the supreme court.
As to mad saying that they would like to see a "duty of care" imposed on party hosts. They have long ago outed themselves as nothing but a bunch of lunatics who use their loss as a political tool to impose their own social agenda, specificaly the ridiculous idea that it is a reasonable use of the coercive powers of law in an attempt to force people to become more virtuous.
Posted by: WinnipegLibertarian | 2006-05-09 3:32:02 PM
Notwithstanding that I agree with the basis of your latter point (albeit not the intensity -- they're no more "lunatics" than anyone else in Canadian politics), you're whistling in the wind. You're highly unlikely to find a warm reception for your views amongst a community where "the ridiculous idea that it is a reasonable use of the coercive powers of law in an attempt to force people to become more virtuous" is taken as received wisdom.
Yes, I'm talking about the Shotgun.
Posted by: Jim in Toronto | 2006-05-09 3:49:02 PM
Oh (sigh) I know. Everyone hates collectivism, unless of course its their ideas that are being imposed upon everyone.
Posted by: WinnipegLibertarian | 2006-05-09 3:56:37 PM
If an individual can hold the host responsible for their drinking and driving then why can't the host hold MADD responsible for not doing a better job of educating people about the dangers of drinking and driving?
Posted by: Paul in Poco | 2006-05-09 4:17:22 PM
No even better lets blame society. I mean its already the reason for murder, drug abuse, rape, spousal assault, etc. Why not drunk-driving too.
Posted by: WinnipegLibertarian | 2006-05-09 4:35:39 PM
The horrific cases that fuel popular support for organizations like MADD are almost always the result of people driving who are blind drunk. Yet, we are reluctant to put in place serious consequences for those who drive in such a state and constitute an obvious hazard to the public. We seem almost incapable of increasing those penalties for repeat offenders. Instead, we focus our attention on campaigns to re-define drunk driving as driving at some point after having had a drink and punishing everyone from the party host to the distillery except for the drunk who caused the accident.
Posted by: Roseberry | 2006-05-09 5:46:28 PM
"But my cycnical side suspects that Colby Cosh overstates the case when he says (subscribers only) that 'Any poll would be likely to show ferocious public opposition to the concept of imposing a duty of care on hosts for their guests' behaviour after a party.' I don't think you would find ferocious public opposition to anything that would tangibly benefit a crippled young victim of a drunk driver and hypothetically decrease the incidence of such tragedies in the future."
Interestingly, you BOTH might be right. Psychological research into people's ideas of responsibility shows that if the question is put to them in the abstract (e.g.; "Do you think a host should be held responsible if his guests drink and drive causing an accident") they are more likely to say "no", but if the question is put to them in the context of a particular case (e.g.; "John is hosting a party. Steve is a guest at his party. Steve gets drunk, then drives away. On his way home, Steve hits Jane, who is paralysed as a result. Steve is very poor, but John is not. Should John be legally required to pay compensation to Jane?"). What this REALLY means is that people generally recognize that it is wrong to require the host to pay, but faced with the injustice of what happened to woman who was injured, our desire to see her compensated can override our sense of justice.
This, of course, is one reason why we should want judges, not juries, to make these important decisions. Juries are usually ordinary folks dealing with the specifics of the one case before them. Judges have broader experiences with cases and are better able to separate sympathy for the victim from the idea that the host is responsible. Justices, as the name implies, are typically better at administering justice. They did so in this case.
Posted by: Mark Logan | 2006-05-09 6:13:03 PM
There is a real problem here that the SCC decision leaves open.
The situation: not a "party" but a friend visiting one on one who arrives by vehicle slightly done. I am drinking and he joins me. I realize after say three or four beers on his part that it would be wiser that he not drive home.
I tell him this and he says "no problem, I'm fine". My friend, when I give every sort of advice and alternative (stay here, I'll give you money for a cab, etc.) for not driving home, insists nonetheless on doing so.
What am I to do? Physically restrain him? I can't. Call the cops and effectively end a friendship?
To put it simply: I know that allowing my friend to drive away is a real risk. Yet anything effectual I might do to prevent this risks ending an important and long friendship.
I honestly think that I might reasonably be held liable for letting my friend leave if an accident ensued (and I think the SCC decision leaves this conclusion still legally possible).
But how to stop the friend leaving and maintain the friendship?
Posted by: Mark Collins | 2006-05-09 6:17:38 PM
"It makes as much sense to hold a server - any server - of liquor responsible for the actions of the drinker as it does to hold responsible the last stranger who bumped into him on the street."
Not quite. The reason that bar employees CAN be held responsible for drunk drivers is that they have a financial interest in getting their patrons drunk. So, in effect, they can profit from causing people to be a risk to the well-being of others. It is the same rationale that goes into making "incitement" to commit a crime also a criminal act.
Now, you can, of course, argue that these things should not be crimes - neither the bartender nor the "inciter's" reckless indifference to the well-being of others - but it is not the same as saying that party hosts or passing strangers have the same burden of care. There are relevant differences here.
Posted by: Mark Logan | 2006-05-09 6:20:24 PM
If your friend really is the kind of guy who would end a friendship with you because you used force to stop him from drinking and driving and if you value a friendship with this guy more than saving the life he might end, then you deserve to be held responsible for anyone he injures.
Would you make the same argument if the friend were sober and telling you he was about to go out and commit a murder? "What am I to do? Physically restrain him? I can't. Call the cops and effectively end a friendship?" Ummm ... YES! Some friends are not worth having. Some are just dead weight. Friends who plot murers are among those. Friends who would hold it against you if you forcibly restrained them from driving drunk are also among them. Because if, when he is sober again, he does not thank you, then he is saying he does not care about who he might have killed. That kind of selfishness is not worth supporting. A person that selfish deserves to have the cops called on him.
Posted by: Mark Logan | 2006-05-09 6:29:14 PM
Drinking/Driving covers such a large scope that perhaps it needs to be defined before any real meaningful dialogue can draw conclusions that aptly contribute to a solution.
I feel it would be safe to venture the guess that alcohol has been mankind's drug of choice far longer than anything else ....In fact it has stood the test of time quite admirably.
Alcohol is a catylist of sorts...by this I mean that although it makes one drunk and impairs one's judgement,it does this in a way that is directly linked to the individual's emotional being or mental makeup if you will... Hence everybody has their own reasons for drinking.
So knowing this, how does one successfully put limitations on others? We all have a different "tolerance threshold" ,some more than others and some just plain stupid as Desormeaux obviously shows himself to be.
The next obvious question of course pertains to the said host...What is their tolerance level?and by this I don't mean booze. Do they want to ply drinks on their company because they don't want the party to end?...or
Perhaps they don't want to be thought poorly of by their company....then again perhaps they want to "pick up" one of their guests and a few extra drinks appears to be the ticket.....Maybe they themselves have a drinking problem and don't see it or just don't care.
With so many variables it would take a very wise person to come up with a one size fits all solution to this nagging problem that has plagued us for so long...One can see why the Supreme Court doesn't relish poking this old dog for fear of it rearing up and biting them in the face. Better to let it lie and hope it just goes away.
However the real question being asked is about driving while being drunk and that one is easily answered; it is plain and simply a no....akin to playing with a loaded gun and should have severe penalties up to and including lifetime jail terms for motor manslaughter,with mandatory loss of license on an escalating scale for lesser and repeat offenders etc.
As for the host?
Well unless one can prove that they purposely forced alcohol on their guest then there isn't much to be said for after all we aren't our brother's keeper.
Beverly McLachlin made the only decision that could be logically made.
Posted by: in ques t | 2006-05-09 6:49:34 PM
I'll drink to that!
Posted by: Set you free | 2006-05-09 7:24:15 PM
It's easy to see where the leftists are coming from on this issue. The host of the party is the government. The guest is the citizen of a nanny state. Drunk drivers are being aboriginalized. And if the property owners aren't willing to play Ministry of Indian and Northern Affairs then dammit, the real government is just going to have to make them.
BTW which is the most heinous act: Jane gets drunk, and on the way home from the party crosses over the white line and kills someone. Joe is perfectly sober, and on the way to the party drives 150kph, crosses over the white line and kills someone. I know where MADD is on this issue, but how about the rest of you? Is punishing a stupid and careless person more satisfying when you can whip yourself up into a moral frenzy over it?
Posted by: Justzumgai | 2006-05-09 7:40:25 PM
I'll drink to that!
Posted by: Set you free | 2006-05-09 8:01:58 PM
I agree with in ques t because he or she has stated exactly what I think is the answer to the dring/drug driving problem. Catch a person ONCE and that person loses his driver's licience for life - if someone is killed because of a drunk/drugged driver's stupidity it's 50 years - no exceptions. These rules would end the problem. People would not drink and drive.
The bars should not be allowed to serve intoxicating beverages, liququer is harmful to people's health. No drinking and no smoking, most people do not go out to drink if they are barred from cigarette smoking anyway so the problem is half solved now, keep those drinkers and smokers at home and we will all be a lot safer.
Posted by: jema54j | 2006-05-09 8:20:07 PM
Earth calling jema54j!
Earth calling jema54j!
Catch a person making a pro-totalitarian statement and send them to retraining for life.
If somebody is killed by the pro-totalitarian statement, send them for retraining for 50 years.
Earth calling jema54j!
Posted by: Set you free | 2006-05-09 8:27:38 PM
Hey jema, right on ! Sharia law for everyone.
Posted by: Howard Roark | 2006-05-09 8:37:24 PM
Think about one of the nicest countries in the world, oh ye alarmists, Switzerland. In that democratic country a person can smoke and drink liququer almost anywhere in the land - if there are restrictions, the restrictions have been voted on democratically by the Swiss citizens. If a Swiss person wants to drink and move around though, they take the train, ride a horse, take a cab or walk home because nobody wants to lose their driver's licience for life or risk their life liberty for a few drinks. Switzerland has citizen soldiers - all males are trained and armed, funny I never realized it had Sheria Law and was a Totalitarian state. Silly me.
Posted by: jema54j | 2006-05-10 12:06:46 AM
As you've hinted, in Switzerland it is compulsory to own a firearm.
Although that would horrify Canadian feminists, I have no problem with the concept.
I've been there and even though the scenery rivals that of the Alberta Rockies, I'm kinda glad the Alberta government trusts its populace enough to not encroach into many aspects of its citizens' personal lives.
I pay that trust back by acting responsibly ... most of the time.
What Albertans really don't want and don't need is a Nanny State of do-gooders that populate provinces like the Peoples' Republics of Saskatchewan and the City-State of Trawna the Pure.
I assume you're from one of those places. If you're not, you should be. That way we can keep better watch on you and your intolerant ilk.
Posted by: Set you free | 2006-05-10 12:25:38 AM
Nope, set you free, I am NOT from any of those places, I am from the Cypress Hills (I am a rancher's kid). I guess you thought I was serious about the bars not serving beer. Alta is the only civilized chunk of Canada re: smoking cigarettes and I am highly critical of other hinterlands because banning smoking is bankrupting businesses. Bars and resturants have seen their profits go down the drain because of Hitler type anti smoking legislation. The junk science promoting alcohol and prescription drugs but making criminals out of tobacco smokers is radical and alarming to me. I do not believe drunken/drugged out drivers should get away with murder - a vehicle is a BIG weapon - I should know as I was hit by one once and the driver 'ran away'. I was a bloody broken mess and I resented the 'inconvenience' (understatement) to myself and my family. I don't know why the wild driver ran away after robbing me and leaving me on the road to bleed to death but maybe he/she was drunk/doped and feared the consequences (not harsh in this country). I am a bit biased because I am a victim of a coward. I suspect the coward might have had a personal reason for running away from his/her 'accident'. No, I am not from toranna, I am from God's country, the beautiful Cypress Hills and I believe in Freedom in the true sense of the word; such as Property Rights. When you pay the taxes you choose what legal activities will be permitted on the property you OWN. Banning cigarette smoking is an infringement on property rights - that little act IS nanny state IMO.
Posted by: jema54j | 2006-05-10 1:55:00 AM
Yes, as per Mark Logan, it is a well-established legal principle that people engaged in a business enterprise have a higher duty of care to their customers than in situations where money is not changing hands.
Posted by: Joan Tintor | 2006-05-10 7:25:24 AM
Power to you, fellow Albertan! Sure hope you're still able to walk.
My car got sideswiped by a big semi – 6600 bucks damage – about a year ago.
The driver just kept going. We managed to track him down because my wife happened to be more observant than I am.
In 1989, I was headed into Cranbrook on a snowy day. A half-ton coming onto the highway from a subdivision went through the stop sign and right in front of me. I was doing about 100 clicks, hit the binders and totalled that car.
No broken bones and fortunately, no bleeding.
Now, I could have developed bitterness or fear from those two icidents. But I would never think of calling for the banning of semis or snow.
BTW, I love the Cypress Hills Provincial Park ... on the Saskatchewan side. Every bit as nice as the Rockies campsites. I wave to the pronghorns as I pass through southern Alberta.
Posted by: Set you free | 2006-05-10 8:43:47 AM
I'll drink to that!
Posted by: Set you free | 2006-05-10 12:50:45 PM
Quick! Someone grab SYF's carkeys!
Posted by: cricket | 2006-05-10 2:34:16 PM
You'll have to catch me first.
Posted by: Set you free | 2006-05-10 2:51:02 PM
Set you Free - do not minimalize the plight of victims of stupid cowards - you were in a car, I was walking. I see no reason why a person who can afford to drink or smoke dope cannot afford a cab or bus fare. No one can blame the person who pours the drinks, the person who drinks the drinks is responsible for his/her own actions. The loss of a driver's licence for life is a serious thing for most people. I believe a lot more people would not drink/dope-up if this was the penality. I believe in banning 'get out of responsibility for your own actions.' We have an adult running the country as PM now, the citizens need to grow up too.
Posted by: jema54j | 2006-05-10 11:27:36 PM
When the movie Jaws first came out, nobody went to beaches along the Atlantic Ocean for months.
You are not alone. I’m sure everybody out there has been through some type of trauma in their lives. My late father-in-law remembered the name of the kid who bullied him in Grade 3.
Not everybody insists everybody else suffer along with their own personal trauma.
During wars of all kinds, soldiers had bullets whizzing over their heads and they witnesses their buddies being shot dead right beside them.
At some point, we have to forgive and move on.
Otherwise, we become victims, not survivors.
And, instead of dealing with our pain, we spread it out to everybody else.
Posted by: Set you free | 2006-05-11 1:29:33 AM
Perhaps the point is that drinking/doping drivers SHOULD share the pain.
Driving is a privilege, and as such can be (and should be) denied to those undeserving by virtue of their refusal to follow the rules.
Posted by: lwestin | 2006-05-11 8:18:55 AM
Thanks Iwestin - you stated my point exactly. Set you free - Freedom is not free, I hope that you already know this and that your attempt to classify victims of crime as whiners is just an attempt to promote debate.
Posted by: jema54j | 2006-05-11 11:02:17 AM
Although I understand the pain you are going through, in all good conscience you cannot deem an entire group guilty or possibly guilty of an act they have not committed.
My late father use to get absolutely shit-faced, then wail on my mom and, sometimes on me.
I've experienced the pain alcohol can cause at the end of my father's hand ... or a piece of wood ... or a belt.
Not just in one isolated incident, but many times.
That's why I jumped for joy so high that I banged my head on the door frame when he left. I was eight years old at the time.
Yet, I carry no long-term biterness toward my father.
Even though I remember, he has long been forgiven and I have carried on with my life ... a survivor.
Should I have become a man-hating feminist, whose series of bad experiences with one man leads to the conclusion that all men should be banned because sooner or later, they'll have a drink and start wailing on you?
That idea is totally absurd, of course ... just like the draconian suggestion that drinking should be banned.
Of course, my parents came to this country with not much more than a suitcase and some hope for a better life.
You know what. I'd be willing to bet everybody else on this thread has had a similar experience of some type of traumatic experience.
How do I know? Because we are a country of victims, with no shortage of ‘the government should do something about this' special interest groups thinking money will somehow ease their pain.
Does't work that way. Each individual is responsible for their own misery or their happiness in the long run.
I will pray for you to find a way to throw away the misery you'd like everybody else to share. I will pray that you will find the strength to become a survivor.
I know you have the inner strength to not allow one incident in you long life consume all your happiness.
Posted by: Set you free | 2006-05-11 11:22:04 AM
set you free; Did I say I know who the driver was? No, I suspect the driver was drugged up or drunk because there would be no other reason for running away. Do you support banning cigarette smoking in public places? Why? My question was, specifically, why are alchol and drugs supported by society whilst smoking cigarettes is a crime? You support freedom or you don't. Please give me your thoughts on this without preaching to me aboout forgivness etc. I am not in the same situation as you are - I don't hate drinking - I just don't think people should drink and drive!
Posted by: jema54j | 2006-05-11 2:28:56 PM
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