what about the victim?

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Childs v. Desormeaux, 2006 SCC 18 (per McLachlin CJ for a unanimous Court):

"Social hosts of parties where alcohol is served do not owe a duty of care to public users of highways. The proximity necessary to meet the first stage of the Anns test has not been established. First, the injury to Childs was not reasonably foreseeable on the facts established in this case. There was no finding by the trial judge that the hosts knew, or ought to have known, that Desormeaux, who was leaving the party driving, was impaired. Also, although the hosts knew that Desormeax had gotten drunk in the past and driven, a history of alcohol consumption and impaired driving does not make impaired driving, and the consequent risk to other motorists, reasonably foreseeable.

Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. No duty to monitor guests’ drinking or to prevent them from driving can be imposed having regard to the relevant legal principles. A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk. Short of active implication, a host is entitled to respect the autonomy of a guest. The consumption of alcohol, and the assumption of the risks of impaired judgment, is in almost all cases a personal choice and an inherently personal activity. Absent the special considerations that may apply in the commercial context, when such a choice is made by an adult, there is no reason why others should be made to bear its costs.

Lastly, with respect to the factor of reasonable reliance, there is no evidence that anyone relied on the hosts in this case to monitor guests’ intake of alcohol or prevent intoxicated guests from driving. While, in the commercial context, it is reasonable to expect that the provider will act to protect the public interest, the same cannot be said of the social host, who neither undertakes nor is expected to monitor the conduct of guests on behalf of the public."

I have no problem seeing this decision as "correct" in "law" -- as we've seen before, law and equity aren't always co-extensive. What makes this decision particularly unpalatable is the idea that Zoe Childs, on top of being rendered a paraplegic, having her fiancé killed, and being loaded with medical bills, will now have to incur the costs of the appeal.

Chief Justice McLachlin refers to the example of "a hostess who confiscated all guests’ car keys and froze them in ice as people arrived at her party, releasing them only as she deemed appropriate" and, although commending this conduct as "exemplary", demurs that "the law of tort, however, has not yet gone so far." Of course, little mention is made that the "law" of tort is judge-made law and thus, if the Court had the courage this time around, they could have very well moved the law "so far." Unfortunately, it will take another (or perhaps many other) tragic accident like this before drastic steps are taken to deter drunk driving.

Yes, drinking and driving is a personal choice -- one which carries legal and moral responsibilities. Likewise, doing nothing -- taking no action to prevent harm -- is a choice. In so doing and chosing, social hosts who let drunken party guests take the wheel are irresponsible and negligent.

Some may be saying the same about this decision of the Supreme Court.

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