Friday, November 26, 2010

The rights of smokers etc.....

The other day I was invited to do an interview by a local television broadcaster to be broadcast on their digital service. I was representing the Ontario Libertarian Party (OLP) and I was on together with the president of, a group that OLP had supported financially in a legal challenge.
In May 2006 the Smoke-Free Ontario Act (SFOA) came into effect which essentially prohibits smoking in all enclosed public areas except your home, your hotel room (if allowed), and your car (if there are no children present).
I have never smoked and I find it a repugnant habit so I don't like to be around smokers, nor does the OLP advocate smoking. That of course does not preclude my support (along with the OLP) of anyone else from smoking if they wish, as long as they do not offend those nearby. In fact my attitude is, that smoking is a voluntary choice as ill advised as it is, and it's a personal preference not an issue that needs to be regulated in law. Certainly enclosed areas, workplaces, public buildings, transit facilities and so on, can and should be designated as non-smoking areas and smokers (if they have any sense) should realize that their habit is obnoxious to many and they should seek permission before lighting up. Voluntary restraint is the best option and that is best done for each local situation. A smokers right to smoke stops where it threatens the right of another to breath clean air, at this point all smokers should be aware of that without the use of coercive force by law.

Unfortunately this law (SFOA) is quite draconian, with very broad implications, which is where the Smokers Choice group gets involved.

The group is centred in the Ottawa area, and they attempted to establish an exclusive smokers club, with signed membership who consented to be within an enclosed room for the purpose of socializing, smoking, whatever. The SFOA is written so broadly that forming such a club in any premises is prohibited. The point of law in question is: what constitutes a public place? Is a public place anywhere that members of the public gather? If that is true than even your home filled with invited guests, is considered a public place because once an individual leaves their home they become a member of the public. Your private party isn't private at all, because members of the public are invited.  That was the interpretation applied to the Smokers Choice case, and after one trial and one appeal, the next higher court refused to even hear the case with no reason given.  The broad implication is that police can come to your home if you are having guests over, when there is complaint or for whatever reason, enter without a warrant because they have probable cause, and charge guests for smoking in a public place (if indeed they are smoking, otherwise the police can be embarrassed).  
Canada has a Charter of Rights and Freedoms, and there are several parts of the Charter that could be used to defend Smokers Choice, but of course the process was halted when the case was refused to be heard.
As it stands that's the end of this issue until someone else raises a challenge.
The second century Roman Senator Tacitus said it best, when he pointed out that "....laws were most numerous when the commonwealth was most corrupt."  Simply put, the more numerous the laws, the more corrupt the state. In Ontario as laws that regulate behaviour have proliferated, those who are normally law abiding citizens are given more opportunity to break laws, making us all criminals and eventually undermining respect for ALL laws.        


  1. Undoubtedly Western nations have the most numerous laws in the history of civilization but I'd hardly classify them as the most corrupt. Tacitus was mistaken. Maybe the number of laws is not the problem but how they are administered?

    As for the Smokers Choice group establishing an exclusive smokers club, there isn't a problem doing so as long as they gather on private property. If they were to rent a Community Hall they would not be allowed to smoke for a number of reasons including:

    - lingering smell and toxic effects of cigarette smoke on future patrons and
    - employees of the Hall have a right to not be exposed to smoke on their workplace

  2. Well, the results aren't all in as yet as far as Tacitus is concerned. But you're right, China, Cuba, North Korea, most Arab states etc. They make the West look wonderful, of course in the main it still is.
    Check the SFOA, there is no such thing as private property. That is exactly why the Smokers Choice group tried and lost at. Nor does the Charter really protect private property.
    The smoking issue is a wedge to the broader issue of police powers vs. individual rights, which is why the OLP supports the Smokers, but the optics for us are bad, though the cause is right.


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