Lawyer: Smoke by law pot free
By: Zen Ruryk, Toronto Sun, 04/18/03
If marijuana was legalized, Toronto's current anti-smoking bylaw would not apply to tokers, according to the city's top lawyer.
City solicitor Anna Kinastowski said the Ontario Municipal Act only gives cities the right to restrict the smoking of tobacco.
That has Councillor Peter Milczyn wondering whether pot smokers will some day be free to light up in restaurants -- locations where smoking tobacco is outlawed unless the eatery contains a separate, ventilated room.
"I'm not a smoker, but if I go into a restaurant and I smell smoke, it may be unpleasant, it may be unhealthy for me," said Milczyn, who added he hasn't tried dope since high school.
"But if I go into a restaurant and I'm not smoking pot, but I'm getting a whiff of it, well I'm getting high when I don't want to get high. So in a way, it would be worse -- or better, I guess, (depending) on your perspective."
PHASE OUT SMOKING ROOMS
Meanwhile, council this week put off making a decision on whether to approve the health board's call to eliminate smoking rooms. Councillors decided they wanted to give representatives of the restaurant industry an opportunity to comment on how to phase out the refuge for nicotine-dependent diners.
Milczyn, who opposes the health board's efforts, said he sees the attempt to eliminate smoking rooms as an initiative sparked by council's left wing.
"At the same time, I think you would find on the left wing of council a lot of people that would be certainly inclined to (support) the legalization of marijuana -- and I just see a bit of hypocrisy," he said.
Councillor Joe Mihevc, health board chairman, said he doesn't foresee the day coming when restaurant patrons can't smoke tobacco but are free to light up a joint.
Mihevc said he favours decriminalization of weed and wants to deal with it as a public health matter.
Some Excerpts from the Ontario Municipal Act:
Municipal Act, 2001
S.O. 2001, CHAPTER 25
Notice of Currency:* All amendments have been incorporated into this document.
A proclamation has been issued naming January 1, 2004 as the day on which the amendments made by 2002, c. 24, Sched. B, ss. 25, 42 come into force.
*This notice is usually current to within two business days of accessing this document. For more current amendment information, see the Table of Public Statutes (Legislative History).
Amended by: 2002, c. 8, Sched. I, s. 17; 2002, c. 17, Sched. A; 2002, c. 22, ss. 151-161; 2002, c. 24, Sched. B, ss. 25, 42; 2002, c. 33, s. 145; 2003, c. 4, s. 12.
115. (1) A municipality may prohibit or regulate the smoking of tobacco in public places and workplaces. 2001, c. 25, s. 115 (1).
(2) A by-law under this section binds the Crown. 2001, c. 25, s. 115
(3) A by-law under this section shall not apply to a highway but may apply to public transportation vehicles and taxicabs on a highway. 2001, c. 25, s. 115 (3).
Scope of by-law
(4) A by-law under this section may,
(a) define "public place" for the purpose of the by-law;
(b) require a person who owns, occupies or operates a place to which the by-law applies to post signs setting out such information relating to the smoking of tobacco as is required by the by-law;
(c) establish the form and content of signs referred to in clause (b) and the place and manner in which the signs shall be posted;
(d) permit persons who own, occupy or operate a place to which the by-law applies to set aside an area that meets criteria set out in the by-law for the smoking of tobacco within the place;
(e) establish criteria applicable to smoking areas in clause (d), including the standards for the ventilation of such areas;
(f) require areas set aside for the smoking of tobacco in places to which the by-law applies to be identified as an area where the smoking of tobacco is permitted; and
(g) require the owner or occupier of a public place, the employer of a workplace, other than a public transportation vehicle and a taxicab, or the owner or operator of a public transportation vehicle or a taxicab to ensure compliance with the by-law. 2001, c. 25, s. 115 (4).
(5) A by-law passed by an upper-tier municipality under this section shall not come into force unless,
(a) a majority of all votes on the council of the upper-tier municipality are cast in its favour;
(b) after the by-law is passed, a majority of the councils of all its lower-tier municipalities have passed resolutions giving their consent to the by-law; and
(c) the total number of electors in the lower-tier municipalities that pass resolutions under clause (b) form a majority of all the electors in the upper-tier municipality. 2001, c. 25, s. 115 (5).
(6) A by-law passed by an upper-tier municipality under this section is repealed if,
(a) after the by-law comes into force, a majority of its lower-tier municipalities rescind their resolutions under clause (5) (b) giving their consent to the by-law; and
(b) the total number of electors in the lower-tier municipalities that have rescinded resolutions form a majority of all electors in the upper-tier municipality. 2001, c. 25, s. 115 (6).
Power of entry
(7) A municipality may, at any reasonable time, enter any public place or workplace to which a by-law under this section applies to determine whether the by-law is being complied with and for this purpose may make such examinations, investigations and inquiries as are necessary. 2001, c. 25, s. 115 (7).
(8) A judge or justice of the peace may, upon application by a municipality, issue a warrant authorizing the municipality to enter, examine, investigate or make inquiries with respect to a public place or workplace if he or she is satisfied by evidence under oath that,
(a) the entry, examination, investigation or inquiry is reasonably necessary to determine whether the by-law under this section is being complied with; and
(b) the municipality has been prevented or is likely to be prevented from exercising any of its powers under this section. 2001, c. 25, s. 115 (8).
(9) If there is a conflict between a by-law passed by a lower-tier municipality under this section and a by-law passed by an upper-tier municipality under this section, the by-law that is the most restrictive of the smoking of tobacco prevails. 2001, c. 25, s. 115 (9).
(10) Despite section 14, if there is a conflict between a provision of any Act or regulation and a provision of a by-law passed by a municipality under this section, the provision that is the most restrictive of the smoking of tobacco prevails. 2001, c. 25, s. 115 (10).
(11) In this section,
"elector" means a person whose name appears on the voters' list, as amended up until the close of voting on voting day, for the last regular election preceding the coming into force of a by-law under subsection (1) or the repeal of a by-law under subsection (6), as the case may be; ("électeur")
"smoking of tobacco" includes the holding of lighted tobacco; ("usage du tabac")
"workplace" includes a public transportation vehicle and a taxicab. ("lieu de travail") 2001, c. 25, s. 115 (11).
Toronto's No Smoking By-law:
Toronto Municipal Code, Chapter 709 - Smoking
CLASS “E” PUBLIC PLACE — An enclosed building or an enclosed portion of a
building used for the sale and service of food and drink to the public for
consumption on the premises which is licensed under the Liquor Licence Act3 and
where no patron under the age of 19 years of age is admitted to the premises at any
time. A class “E” public place includes a bar, an entertainment lounge and a nightclub.
A class “E” public place does not include a premises otherwise defined in this
PRIVATE CLUB — A not-for-profit corporate establishment that operates solely
for the benefit and pleasure of its members, that directs its publicity and advertisements to its members and has passed by-laws regulating the admission of persons and the conditions of membership, the fees and dues of members, the issue of membership cards, the suspension and termination of memberships, the qualification of and the remuneration of the directors, the time for and the manner of electing directors and the time, place and notice to be given for the holding of
meetings of the members and of the board of directors.
SMOKE or SMOKING — Includes the carrying of a lighted cigar or cigarette, pipe
or any other lighted smoking equipment.
§ 709-2. Applicability to public places and private clubs.
A. Where a workplace is also a public place, the provisions of this chapter respecting
public places shall prevail.
B. Where a workplace is also a private club, the provisions of this chapter do not
§ 709-6. Smoking regulations in public places.
A. No person shall smoke in a public place.
G. Despite Subsection A, a proprietor of a class “E” public place may establish and
designate an unenclosed smoking area no greater in size than 25% of the occupiable
public space in the premises. The designated smoking area must be contiguous and
B. Section 709-6E, F, G and H of this chapter are repealed on June 1, 2004.
C. Despite Subsections A and B, this chapter, as it read before § 709-6C, D, E, F, G
and H were repealed, continues to apply to proceedings in respect of offences that
occurred before § 709-6C, D, E, F, G and H were repealed.
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