It’s hard to prosecute bar servers in drunk-driving cases: experts

OTTAWA — Legal experts say criminal charges such as those laid against a former bar server in connection with a drunk-driving crash that killed two Ottawa-area teens are rare and difficult to prove.

Ann Senack, 62, of Greater Madawaska Township, was charged in March with two counts each of criminal negligence causing death and criminal negligence causing bodily harm in a 2017 crash in Calabogie, Ont.

Two young men, Brandon Hanniman and Alexander Paquette, were killed and two others were injured when their car veered off the road and plowed into a rock cut.

Police said the group had been drinking at a local establishment and alcohol contributed to the crash. The case is expected to return before the court today.

While bartenders and bars might face lawsuits related to serving drunk drivers, legal experts said they are not aware of a case in Ontario where someone has been found criminally responsible.

The threshold for criminal negligence is higher than for civil negligence.

“To extend criminal liability in these circumstances is very, very uncommon,” said Michael Lacy, a Toronto lawyer and the president of the Criminal Lawyers’ Association.

“If someone were held criminally culpable in these circumstances, I’d say that would be a precedent-setting decision,” said Lacy, who is not involved in the case.

Toronto defence lawyer Daniel Brown said that to obtain a conviction for criminal negligence, the Crown would have to prove beyond a reasonable doubt that there was a “marked and substantial” departure from the standard of care owed by a server.

Prosecutors would have to show a bartender knew the person they were serving was clearly underage, and knew the person was driving home and was impaired to such degree that it would be a danger to them and to others, he said. The Crown would also have to show a direct link between the alcohol served to the person and the injuries caused, he said.

In comparison, a civil negligence case must prove it’s more likely than not that there was a departure from the standard of care, which is a much lower bar, Brown said.