ANNA MEHLER PAPERNY
From Saturday's Globe and Mail Published on Saturday, Nov. 07, 2009 12:00AM EST Last updated on Saturday, Nov. 14, 2009 3:16AM EST
There's no way the Crown could have proved that 11 senior executives at a major golf-club company were directly responsible for serving too much alcohol to a group of young people, three of whom ultimately died in a car accident that rocked cottage country last summer, a veteran lawyer says.
"They must have got the corporate profile and got all the directors and charged them all without knowing whether any of them had any real involvement with that restaurant," Randall Barrs said.
With that in mind, he said, it's no surprise the Crown attorney withdrew the charges in a Bracebridge courtroom Thursday, citing "no reasonable prospect of conviction."
On July 3 last year, 20-year-old Tyler Mulcahy left the deluxe Water's Edge restaurant at Lake Joseph Club with his girlfriend Inez Elzinga, 19, and two other friends. Minutes later, Mr. Mulcahy's Audi smashed through a roadside barrier at high speed and plunged into the Joseph River. Mr. Mulcahy, Cory Mintz, 20, and Kourosh Totonchian, 19, all died.
The Crown shocked legal observers in January by charging the company and a total of 16 individuals - including the president and CEO, chief financial officer and three vice-presidents of ClubLink, the prominent company that owns Lake Joseph along with 33 other golf clubs in Ontario and Quebec - with serving too much alcohol to the four that night. Two of the 16 individuals had their charges withdrawn in January. Neither was working for ClubLink at the time of the crash.
The remaining charges of over-serving are against Ian Colterjohn, James Flegg and Walter Moon, all servers at the club, and ClubLink Corp. itself. The accused will be in court March 12 for a pretrial hearing.
Mr. Barrs said the precedent-setting charges could have been a bid to send a tough message after the harrowing crash, but the Crown's case is far more viable now: In theory, it's difficult to tie executives to the actions of staff at a club they may never have dealt with, but relatively easier to attach liability to servers and to a corporation as a whole.
Tim Mulcahy, Tyler Mulcahy's father, says he only learned about the withdrawn charges when apprised by a reporter.
After his son's death, Mr. Mulcahy fought hard to change Ontario's laws for young drivers, and ultimately succeeded. He says he's hopeful those tighter rules will save lives. But for him, the latest charges don't change a thing.
"If the servers over-served, they knew they were over-serving and they allowed Tyler and the boys to get into the car inebriated. This is something that, regardless of whatever the outcome is, they have to live with karmically for the rest of their lives. ... It's something I've got to live with for the rest of my life and I continue to think of what I could have done differently."
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