Legal cannabis enters into debate about where Canadians can smoke

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Cigarettes on the ground. Image: christie yunhwa/Flickr

Most people recognize that people have a right to live their lives so long as they don't negatively affect their neighbours. But let's face it -- many things that people do have the potential to bug others: too loud music, intense cooking smells, children running around, dogs pooping in the wrong place, too many visitors, too much loud arguing, the list goes on.

Nothing, however, has the potential to irritate neighbours quite as much as cigarette and cannabis smoke. At least that's our recent observation from our work helping housing providers deal with behaviours that don't conform to providers' standards. Add the fact that many people have medical conditions that are worsened by smoke and you've got a recipe for neighbourhood conflict. 

Even grudgingly, most people will admit that their right to make excessive noise, smoke, or have a badly behaved dog is limited by others' rights to be free from these things. Indeed, in our relationship with government, we enshrine this principle in section 1 of the Constitution which says "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Four decades ago, the drafters of the Constitution recognized that for a society to function, the rights of individuals must be limited to some extent by the rights of others. Seventeenth-century English author John Donne said "No man is an island," and while dated in his exclusionary language, he summarised what people even 400 years ago recognised as the reality: we all rely on one another and indeed have an impact on one another. 

Why then is it that some smokers defend their right to smoke behind closed doors? And more interesting, what is it that makes some non-smokers agree with them? Perhaps they are emboldened by the legalisation of cannabis, which bucks a very long trend of ever-increasing restrictions.

As early as August 1957, a cinema in south London, U.K. banned cigarette smoking a couple of nights a week. Move into more recent times and we see in the last 30 years a significant reduction of public space where people can smoke legally in Canada. On December 30, 1989, it became illegal for Canadians to smoke on commercial flights between Canadian cities. In 1994, this was extended to all flights for all Canadian carriers. In the early 2000s, most Canadian cities instituted bans on tobacco smoking in restaurants, bars, bingo halls, and the like. Now, in most places, this ban is extended to public patios. No one could imagine smoking in a workplace these days, although 30 years ago I remember doing so myself. (Full disclosure, I smoked my last cigarette on March 31, 2001.) Smoking bans now cover outdoor public spaces in many parts of the country. For example, on January 1, 2018, all hospital grounds in Ontario became smoke-free, despite the many smoking patients and health care professionals.

These spaces, however, are all public. In 2009, on the annual day dedicated to encouraging smokers to quit or at least quit for the day, Ontario instituted a much different kind of ban: the province banned smoking in private vehicles if a child under 16 was present. This regulation a turning point, and one that opens the door to more proactive legislation aimed to protect non-smokers from second-hand smoke.  

Granted, as pointed out by the NDP in 2008, Ontario's ban was among the "fluff bills" that the provincial Liberal government of the day introduced. Then-premier McGuinty was first opposed to the bill, arguing it was an invasion of personal privacy. By the time the government introduced its bill, he'd come round to a more collective viewpoint: "You've got to continue to look to ensure you are striking an appropriate balance between the rights of individuals, the right to exercise personal freedoms and liberties, and our collective responsibility as a society to protect the interests of our most vulnerable," he said. 

Interestingly, the 2009 legislation, which passed with all-party support, did not ban smoking medicinal cannabis in a car with a child. The ban was limited to tobacco, a criticism lodged by the opposition in the debates.

Common spaces in multi-residential housing have been smoke-free areas for many years and for some, newly instituted bans within units or on exclusively used outdoor spaces (like balconies) are now in place. These developments are more like the 2009 ban on smoking in cars with youths present, and bring with them contentious debates and, in some cases, legal challenges. To what end?

A recent Ontario Superior Court decision reviewed the right of a condo board to ban smoking on an owner's balcony. In 2009, the Silberbergs began renting a condo in Guelph. Three years later, they purchased it. The condo's declaration provided for a collectively owned, but exclusively used balcony attached to their unit. From the time they moved in as renters, the Silberbergs smoked on their balcony. The condo board, in step with many other multi-residential buildings, proposed a ban on all smoking – including vaping – in any commonly owned space, including exclusively used balconies. The rule was passed by the owners although the Silberbergs voted against it. They ignored the new rule and eventually the condo board was left with no choice but to turn to the courts for an order to make the Silberbergs stop.

Although the court addressed some other issues that related to this particular condo building, the issue that is of most interest to other multi-residential buildings is the court's view on the question of whether such a rule is reasonable for the condo board to impose. Justice Lemay concluded that it was, noting, among other things, that "Given the broader public context that the Rule was promulgated in, it is reasonable in and of itself." Read the decision for yourself here

This supports my view that given the decades-long history of limiting places where smokers can smoke, we are unlikely to see a reversal of that now, despite the legalisation of cannabis. While medical cannabis users clearly have a right to take their medication, does that right extend to smoking it in spaces where others – especially ones with their own health issues -- are affected? I don't think so. Arguments that tobacco smokers are addicts and therefore entitled under human rights legislation to satisfy their addiction at will are also out of step with the historical public policy direction.

Celia Chandler joined Iler Campbell LLP, a law firm specializing in co-op, non-profit, and charitable law, in 2005, and was called to the bar in 2006. Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Image: christie yunhwa/Flickr

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