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Bartender, pub owner escape criminal charges in customer's death

Tammy Kobylka was celebrating a big deal in her young life - a $4-an-hour pay raise as a labourer at a hot tub company - when she went to a popular bar in her small northern Alberta town on Oct. 6, 2007.

Less than 24 hours later, the 22-year-old was found dead in her trailer home in Calmar, about 50 kilometres southwest of Edmonton.

An autopsy later revealed the five-foot, 132-lb. woman had died of "acute ethanol toxicity," also known as alcohol poisoning. Her blood-alcohol level was five times higher than the legal limit for driving.

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In a rare move in Canada, the tavern, Skip's Sports Bar, its owner and a bartender, were charged after a lengthy RCMP investigation with criminal offences, including manslaughter, in connection with Ms. Kobylka's death.

However, the high-profile case fell apart in a Leduc, Alta., courtroom Monday when the Crown dropped the criminal charges in exchange for a guilty plea by bartender Derek Allen Tithecott, 34, on a lesser alcohol-related offence under Alberta's Gaming and Liquor Act.

Crown prosecutor John Laluk told the judge there wasn't enough evidence to pursue the criminal charges at a trial.

Mr. Tithecott was ordered to pay a $6,000 fine for serving alcohol to a person already "apparently intoxicated." The maximum penalty was $10,000.

Bar operator SBH Enterprises Inc., owner Brian Cameron Bromley, 62, and Mr. Tithecott had been facing charges of criminal negligence causing death. Mr. Tithecott had also been charged with manslaughter. The preliminary inquiry into the case was set to begin yesterday, but was cancelled after the surprise deal was announced.

Lynne Kobylka, Tammy's mother, delivered an emotional victim impact statement after the guilty plea was entered.

"The almighty dollar was more important than a life. … They ruined our lives," Mrs. Kobylka said, as she looked directly at Mr. Bromley and Mr. Tithecott. "You've never apologized. … This all could have been avoided if you had picked up the phone."

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Outside of the courthouse, Mrs. Kobylka told The Globe and Mail she was upset the Crown didn't proceed with the criminal charges. "A case like this would have sent a strong message to bars," she said.

She was also upset that Mr. Bromley, a family friend, wasn't punished. "We knew Derek was going to be thrown under the bus. We wanted [Mr. Bromley]"

A few hours later, Mrs. Kobylka called her local MLA to beg for help in the case. At the very least, she wants Skip's Sports Bar closed permanently.

Mrs. Kobylka recently filed a $175,000 civil lawsuit against Mr. Bromley and two Skip's bar employees.

During Monday's court proceeding, Mr. Laluk said that before Ms. Kobylka arrived at Skip's, she had already consumed between six to nine beers and was "under the influence," but not yet intoxicated. While Ms. Kobylka drank a number of shooters at the bar, he said it's not clear whether she continued drinking after leaving the establishment later than evening.

Therefore, he said it would be difficult to "prove beyond a reasonable doubt" that the alcohol she consumed at Skip's contributed to her death.

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Brian Beresh, Mr. Tithecott's lawyer, agreed evidence was lacking in this case, and added many witnesses were unreliable "because of the amount of alcohol consumed by everyone involved."

Mr. Tithecott, who still works at Skip's, said in an interview that Ms. Kobylka's death has changed his life. "It's been very hard," he said. "Everything I do at work now is different."

Sanjeev Anand, a criminal law professor at the University of Alberta, said the fact the Crown even laid criminal charges in this case should still serve as an important "warning" to bar owners and staff that they need to take their legal obligations seriously and "ensure the safety of their patrons."

He said the case has also brought much-needed attention to this legal issue. "Charging these individuals has started a public debate, and sends, I hope, a message to those individuals who might be inclined to say: 'We are going to let the patron decide when he's had enough'" Mr. Anand said. "Clearly, that's not going to fly in terms of potential criminal liability."

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