) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - v. - ), 2011 MBPC 78

2011 MBPC 78 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - and - ) ) ALLAN DALE KOSTUR AND ) Roy Dawson MARY-ANNE DIANNE KOSTUR ) for the Accused Accused. ) ) ) Judgment Delivered: ) November 29, 2011 HARAPIAK, P.J. [ 1 ] Mary-Anne and Allan Kostur have both pleaded guilty to permitting drunkenness in their home, contrary to

section 122(

a) of The Liquor Control Act of Manitoba. [ 2 ] That

section reads that “no person shall permit drunkenness to take place in any house, building, or premises of which he is the owner, tenant, or occupant.” [ 3 ] The maximum penalty for this offence is a $5,000.00 fine, imprisonment for no more than three months, or both. [ 4 ] On February 13, 2009 at least two people became drunk in the Kosturs’ home.

Tragically, one of these people, 15-year-old Tamara Aller, did not make it safely home afterwards and died alone in a parking lot, from hypothermia. [ 5 ] It is important to try and learn from the death of Tamara Aller, and take steps to ensure our young people remain safe in the future. To the Aller family, almost three years later, this loss is still fresh and painful. Both Tamara Aller’s mother and father described the ongoing process of trying to cope with the death of a child and, for their other children, the loss of a sibling. It has been a terrible and senseless tragedy for this family.

A careful review of the facts is critical in this case to ensure the rest of the community is made aware of what occurred the night Tamara Aller died. THE FACTS [ 6 ] The events that led to today’s sentencing were innocent enough to start. Kendall Kostur was about to turn 18. Kendall, as teenagers often do, wanted to have a party. His parents agreed to allow a celebration at their home. On February 13, 2009 they purchased a 24 case of Labatt’s Lite beer and placed it downstairs in the family rec room. About 20 young people attended the party –

16 of them under the age of 18. The party ended up lasting about 4.5 hours. [ 7 ] More alcohol was brought into the home that night by the guests. There were at least two fifteen packs of beer, the 24 of Labatt’s Lite, liqueur, vodka and coolers. Fifteen-year-old Tamara Aller was a guest at the party – she brought a bottle of amaretto liqueur as a birthday gift for Kendall. [ 8 ] According to his statement, throughout the evening Alan Kostur went downstairs to check on the gathering.

At some juncture he stayed downstairs for a period of time, where he consumed alcohol and “joined the party.” There are several photos of Tamara Aller with a Labatt’s Lite beer in her hand. In one she is hugging Mr. Kostur. Witnesses indicated that she was drinking beer and shots of amaretto. All witnesses, but for the Kosturs, described Tamara as slurring her words, stumbling and being drunk. [ 9 ] Seventeen-year-old R. F. was another young person at the party that night. He arrived with no alcohol and consumed 12 beer he obtained in the Kosturs’ rec room.

He left the party on foot and recalls, at one point, his pants falling down and then falling down himself, into a snow bank. He was discovered by a passing dog walker and taken to the Dauphin Hospital, where he remained overnight to be treated for exposure to the cold. [ 10 ] Tamara Aller and a male friend were the last to leave the party. Tamara had trouble putting her shoes on and tried to put on a gym bag as her jacket. Although Tamara had arrived at the party wearing a winter jacket, with her house keys in the pocket, she did not put it on when she left.

She was wearing a thin nylon Clippers sports jacket, and had her cell phone with her. [ 11 ] Environment Canada records indicate that, with the wind chill, it was – 31 degrees Celsius that night when Allan Kostur offered to drive the last two guests home. When Kostur neared the downtown Coop Gas Bar the male youth jumped out. Tamara was speaking to a friend in Winnipeg on her cell phone at this point. Kostur says that, although his intention was to drive her home, Tamara got out at the corner of her block and said she’d walk from there.

He drove away without ensuring she got into her home. [ 12 ] Tamara’s movements after getting out of the car have been pieced together from various sources. The friend on the cell phone was speaking to Tamara when she discovered she had left her keys at the party. She told him that she was drunk and he noted that she seemed to be not quite there. He said that she pounded and kicked on the door. She told her friend she thought her brother was in the house, which was not the case. It must have been at this point she attracted the attention of some girls who lived across the back lane from her.

They came over to try to help her, but were unable to get her into the house. The father of one of the girls yelled at them to come home as he seemed to feel they were causing a disturbance and they did, leaving Tamara on the doorstep alone. [ 13 ] A couple of adults walked by and saw Tamara with the two girls at the backdoor, assumed she was okay, and kept walking. [ 14 ] The friend in Winnipeg said Tamara started to cry, that the crying eventually led to moaning, which then led to silence. He tried calling her back, got her on the phone and then was disconnected.

He then, to his credit, tried calling a number of other people, trying to find someone to pick Tamara up. He was eventually reassured by a cousin of Tamara’s, who thought someone had likely played a prank on her and she was probably in the house already and not answering her phone. [ 15 ] At this point it appears that Tamara gave up her attempts to get into her house, walked through the backyard, stumbled and fell a few times and then walked in the direction of what was then the Skyliner Convenience Store and Restaurant.

She crossed that parking lot and fell to her knees in the parking lot of a local carpenter. [ 16 ] Tamara Aller’s blood alcohol content, at time of death, was .159. A Forensic Toxicologist report, filed by consent, indicated that this blood alcohol content would have resulted in outward signs of intoxication including difficulty with speech, balance, coordination, judgment, comprehension, decision-making and reaction time. The fact that it was so bitterly cold outside only made the situation worse.

The Toxicologist advised that “the combination of the impairing effects of alcohol and hypothermia on the central nervous system are expected to cause greater impairment than either alone.” Tamara eventually succumbed to the cold. [ 17 ] Mrs. Aller arrived home after her daughter left, and stayed up to wait for her. She sent her son out to look for his sister, and he eventually knocked on the Kosturs’ door, waking them up. They told him they thought she should have been home as she had been let out at a nearby intersection hours before.

Tamara Aller’s body was not discovered until the following morning when the business owner arrived at work. CASELAW

[18] Both counsel and the court had difficulty finding caselaw on point. I was provided with two cases from defence counsel whichwere of some assistance. [19] Ed Bulley Ventures Ltd. v. British Columbia, [2001] B.C.L.I. No. 5, is a BC Liquor Appeal Board permit drunkennessdecision.

The Board, on the meaning of “permits drunkenness” found that “a licensee may be said to permit something where thelicensee does not exercise as high a degree of diligence as it should have in the circumstances, or where the licensee shuts its eyes to theobvious or allows something to go on, not caring whether an offence is committed or not.” [20] The second case provided, R. v. Sage Well Services Ltd. 2000 SKQB 259 , [2000] 11 W.W.R. 559, (SKQB) was aCrown appeal of a fine assessed against an employer after an oil field accident resulted in death.

In that case the deceased worker, andothers, failed to comply with safety measures they had been trained in. The court, in dismissing the appeal, noted that “the objective ofthe fine imposed for a breach of occupational health and safety regulations is deterrence not retribution. No matter how high the finemay be, it can never replace the life that has been lost or the injury that has been suffered.

Nor will it benefit the injured worker or thefamilies of the deceased worker.” The court went on to remark that even in strict liability cases “the degree of culpability of the offenderis still a very significant factor from a sentencing perspective that it is not replaced by the deterrence factor alone.” I have carefullyconsidered this case in determining appropriate dispositions, and this consideration is primarily reflected in the different sentences theco-accused will receive. ANALYSIS [21] Tamara Aller made some mistakes that night. She should not have been drinking and she did, to excess.

This case, however, isnot about Tamara Aller’s mistakes. Tamara Aller was a 15-year-old girl. We expect, as a community, that teenagers will take risks andtest boundaries. This case is about the responsibility of homeowners to not permit drunkenness on their premises. [22] The Crown was careful and fair, during submissions, to label the Kosturs as good people, and to remark that the casualapproach they took to underage consumption of alcohol that night is not unique among parents in this community and others.

Defencecounsel made similar comments about underage drinking being a routine occurrence. [23] This should be a cautionary tale for all “good people” who permit underage drinking in their homes. There are laws againstproviding alcohol to minors, with very limited exceptions for parents, and laws against permitting drunkenness. These laws are there fora reason. As a society we have decided that the risks of allowing those under the age of 18 to consume alcohol are too great and thestakes too high.

The regulatory caselaw reveals many instances in permit drunkenness cases where individuals left locations drunk and,due to their state of impairment, later died from various causes. Although many otherwise law-abiding people see underage drinking as aharmless activity this case illustrates the catastrophic results that can stem from drunkenness, particularly with teenagers, and highlightsthe reason that drinking alcohol must be a tightly controlled activity. [24] The Kosturs have accepted responsibility for permitting drunkenness in their home.

They knew or should have known thatcertain individuals were drinking to the point of intoxication. It is an aggravating factor that most of the guests were underage. [25] The evidence that the Kosturs knew or should have known that R. F. was intoxicated is scant. The inference is there to bemade, though. He drank 12 beer in two and a half hours and passed out in a snow bank shortly after leaving their home. His impairmentmust have been obvious before he left the house. The evidence that was presented to me concerning drunkenness primarily focused onTamara Aller.

Most of the witnesses at the party remember Tamara Aller being drunk. She is shown drinking in several photos, she puton the wrong shoes when leaving, tried to put on a friend’s gym bag as her coat, and walked out without her winter coat in bitterly coldweather. Her blood alcohol content at time of death indicates, and the agreed statement of facts confirms, that she left the Kostur homeintoxicated. [26] The statements filed by defence and the agreed statement of facts conflict on whether Mary-Anne Kostur went downstairsduring the evening.

I am accepting the agreed statement of facts which indicates she stayed upstairs. As such, Mary-Anne Kostur didnot have the same level of contact with the party-goers and, other than providing 24 beer to a party which was predominantly attended byunderage teenagers, and not going down to assess the situation as the evening wore on, is less culpable in “shutting her eyes to theobvious” (Ed Bulley Ventures Ltd. v. BC (supra)) than her co-accused spouse. [27] The Crown has asked that I consider an incarceratory term for Mr.

Kostur in light of his greater role in supervising (andjoining) the party and as the driver who did not see Tamara Aller safely home. He submitted that, due to the pervasiveness of underagedrinking I should take this as an opportunity to send a message to the community at large. [28] The purpose and principles of sentencing are multiple.

Discouraging others from permitting underage drunkenness is a validand perhaps central goal here, but a jail sentence is not the only tool available to the court that could achieve that end. “All availablesanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” (s. 718.2(

e) Criminal

Code ) [ 29 ] Specifically deterring the Kosturs from permitting drunkenness in the future is not necessary. I accept their assertions that they would never do this again, Mr. Kostur’s comments that he feels “ashamed” and “changed forever” and the report writer’s opinion that they are both a very low risk to re-offend and require no counseling or supervision in the community. DECISION [ 30 ] The Crown described this as the worst offence. Averting the trouble that seriously intoxicated individuals can get into or cause is surely the goal of this section.

The fact that two teenagers ended up unconscious outdoors in dangerously cold winter conditions and unable to care for themselves after attending this party does make this one of the worst examples of this offence. [ 31 ] Having said that, the Kosturs are not the worst offenders. They have clear records, this type of party was apparently not a routine occurrence, the party was over by 11:30 and Mr. Kostur did attempt to drive some of the guests home. The maximum punishment is reserved for the worst case, and the worst offender.

The maximum punishment, in this case, is a $5,000.00 fine and 3 months incarceration. [ 32 ] General deterrence is the key sentencing principle I have considered in this case. People have to be made aware that the provisions of the Liquor Control Act have purpose and meaning and will be enforced.

If you knowingly permit underage teenagers to become drunk in your home or shut your eyes to the obvious and then fail to ensure the young people are either secure at your home or returned safely to theirs you will be assessed significant penalties by the court. [ 33 ] Alan Kostur is sentenced to pay a $4,000.00 fine, inclusive of costs. [ 34 ] Mary-Anne Kostur is sentenced to pay a $500.00 fine, inclusive of costs. _______________________ Harapiak, P.J.