Monday, August 11, 2008

Even private is public when it comes to SHS

On March 8, 2007, Mike Kennedy of Smith Falls, Ontario was convicted of offenses under the Smoke Free Ontario Act .

Mr. Kennedy was charged with 5 counts of violations under the Smoke Free Ontario Act. These violations included having ashtrays on the tables, allowing people to smoke and obstructing the smoke police . . . er, health inspectors by refusing to allow them into his establishment.

Mr. Kennedy stipulated to all arguments made by the prosecution, save one. He argued that his establishment was a private member’s club and not a public place, and the general public were neither invited nor permitted into the club.

Justice of the Peace Bartraw, who heard the case in the lower court, noted that: “The only question that is to be determined here today on the evidence is as to whether or not this is a public place or a private club which Mr. Kennedy feels because it is a private members only club that it is exempt from this legislation”.

He went on to speculate that, because members of private clubs were also members of the public, they were to be protected under the Smoke Free Ontario legislation, whether they wanted that protection or not. By this dubious leap in logic, even privately owned businesses were considered, by Bartraw, to be public places.

“It may very well be that you are a member of an organization but that does not stop you from being a member of the public of the Province of Ontario and the legislature’s intent was to protect members of the public of the Province of Ontario from secondhand smoke and smoke and that is why they have made these laws”.

The circular logic of JP Bartraw suggests that, since we’re all members of the public, there is no such thing as private property. Presumably, this means that the only place that is private in Ontario is your home. All other places, whether or not privately owned or used, are now public.

“There are exemptions, in a private dwelling where you are allowed to smoke in your own private dwelling. I don’t know why anyone would, but that is an exemption or any other prescribed place”, said Bartraw. His personal distaste for smoking is clearly evident and would seem to preclude an objective, unbiased opinion in the matter before the court. It is much more than an extraneous comment.

And, even your home may not be considered a private place. Bartraw's determination was based on the fact that private places are not mentioned in the provincial law. Following this insane logic, your home, which is not specifically exempted in the public places section of the Smoke Free Ontario Act, could be invaded at will.

In his written opinion, Bartraw notes that the intent of the legislation was to save lives, claiming: “Court can take judicial notice that smoking and secondhand smoke does, in fact, kill and cause medical issues for a number of people otherwise they wouldn’t be making this law”.

That claim sets a dangerous precedent. There was no evidence provided at trial that secondhand smoke killed or compromised the health of anyone. The JP was clearly expressing a personal opinion in attributing any health hazards to secondhand smoke. And, once again it raised the question of bias and objectivity.

Numerous scientific studies have failed to associate secondhand smoke with any health hazard to any significant degree. Why whould a Justice of the Peace express personal opinions from the bench, on medical matters, as if they were fact? Bias is clearly evident in some of the statements made by Bartraw.

Mr. Kennedy was found in violation of the Smoke Free Ontario Act. He was convicted on all five counts and fined $3,530.00. His subsequent appeal to the Ontario Court of Justice, heard by Justice Stephen March, was dismissed. But, he has been granted leave to appeal.

He notes on his new website, “we need you to fight, not for your freedom to smoke, but your freedom to enjoy private property and socialize with whoever you choose”. You can read all about Mike Kennedy’s run-in with ‘the law’ on his new website. And, yes. He’s accepting donations.

Mike’s website: Smokers Choice.Org

1 comment:

Michael said...

Excellent article as usual Rambler! :)

And kudos to Mike Kennedy for putting up a fight! The judge's ruling is sad in both its quality and in what it bodes for the future.

Michael J. McFadden
Author of "Dissecting Antismokers' Brains"