On January 3, 2008, Mike Kennedy and David Lindsay appeared in the Ontario Superior Court of Justice to defend property rights. Jean-Serge Brisson, Donald Crawford, Paolo Fabrizio and Jim McIntosh attended as spectators. Three inspectors from the Health Unit which originally charged Mike were also in attendance. To skip to Jim McIntosh's (unofficial) summary of the proceedings, click here.
In April, 2008 Judge March upheld the charges against Mike. In June, Mike was given leave to appeal his case in Superior Court. His appeal is scheduled for September in Toronto. For the latest in his case, visit http://smokerschoice.org/.
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The Ontario Libertarian Party paid $678.40 for a copy of the Transcript of the trial so that Mike Kennedy and David Lindsay could prepare their appeal. We also paid $802.78 for David's airfare on WestJet from Kelowna to Toronto and back. (David is not charging for his time.) We need your help to cover these costs. (NOTE: You will receive a tax credit for any donation you make to the Party.)
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Click here for a draft version of Mike Kennedy's argument (in PDF format).
Here is the story in a nut shell.
Mike Kennedy has been fighting smoking bans for several years. When Ontario introduced the Smoke Free Ontario Act, it did not included private clubs. So Mike decided to establish a private club for smokers known as “Smokers Choice/Non Smokers Choice” in a pub that was going out of business thanks to the Act.
Mike went to great lengths to ensure his club qualified as a "private" club. He established a Charter consisting of a set of mandatory rules, regulations and constitution that specified things like how members would elect a board of directors There are no employees, only volunteers. Members must pay monthly dues, not a fee per visit. A Doorman ensures that only registered members are allowed into the club. Mike was in the process of establishing a computer system with photos of members to help ensure only members are admitted. Members must sign an agreement that they are prepared to accept the hazards of second hand smoke and keep an eye on the entrance to ensure no one but members enters, among a few other things. Advertising for the club was directed at smokers and not to the general public. "Guests" are not allowed.
On September 8, 2006 two inspectors from the Health Unit of the Ontario Government arrived at the club to investigate a complaint that the club was permitting smoking on site. Mike allowed them to enter the club for observation, and they observed ashtrays. Mike assured him this was a private club and in compliance with all regulations. One of the inspectors returned on September 13, 2006 to obtain more information. He asked Mike to post No Smoking signs, but Mike refused. Mike explained the membership requirements and fees, but the inspector would not agree to the rules of the club, especially the one were he would have to agree not to jeopardize the enjoyment of other members. Mike refused to allow him entry, since he was not a member. He returned again on the occasion of the grand opening three days later and was again refused entry. He returned once more on September 20 and took photographs, and was once more refused entry.
In spite of all of the above, Mike Kennedy was charged under the Smoke Free Ontario Act. Justice of the Peace Bartraw, after hearing all of the above and more, convicted Mike of allowing smoking in an enclosed public place!
In his Appeal Mike concedes his club is an enclosed place, but he argues it is not a public place under the meaning of the Act. Alternatively, if it is "public," then the definition in the Act is general, vague, ambiguous and/or uncertain in its scope and application. He is also appealing on the grounds that there was a reasonable apprehension of bias on the part of JP Bartraw. Batraw gave no reason for declaring the club to be public, other than to note that members of the club were also members of the public. If this club is public, then the only private property (so far) is your home!
It is important that we fight this attack on private property. It appears that the JPs that Mike has encountered in this and previous smoking cases are determined to go beyond the Smoke Free Ontario Act and ban smoking even in private places. Smitherman and other MPPs might have wanted to go further, but they knew the voters wouldn't let them get away with it. The next step will be to ban smoking in cars, then maybe the public will be ready to accept even more draconian measures and infringements of their rights.
THE APPEAL - JANUARY 3, 2008
Judge March presiding.
Dave Lindsay raised an issue about the transcription of the original hearing. They had received permission to listen to a section of the recording in which they believed the Justice of the Peace had said, "Sure, sure, you are a private club and you can have sex but you can't smoke after," or words to that effect. They didn't hear these words, and wanted to listen to more of the recording. They were able to locate the transcript of the session during which they listened to the tape and it confirms that the tape is reflected in the hearing transcript. However, they thought they heard a click and muffled voices and suggested that an expert should analyse the tape to confirm no one had tampered with it. The Judge pointed out that if there was any question about the accuracy of the transcript, they would need to postpone the appeal, since it depended on the transcript being an accurate record of the trial. Dave agreed, reluctantly, that they should proceed on the basis that the transcript was accurate.
The Prosecutor, Mr. O'Shaunasey, asked if the Judge accepted David Lindsay as Mike Kennedy's representative, pointing out that Dave is not a lawyer in Ontario. Dave agreed he was not a lawyer and had not been to law school, but he has been accepted many times by Ontario and other courts. When the judge asked, Mike replied that he was eminently satisfied to have Mr. Lindsay represent him.
Dave Lindsay reviewed many of the arguments in Mike's Factum. The essence of his argument was that Mike had done everything possible to establish a club that would not qualify as a "public" enclosure (as indicated above). He pointed out that the JP in his decision had repeated all of Mike's arguments about the club being private and then convicted him of allowing smoking in a public place. He did not explain why he considered the club to be public.
The Prosecutor argued that the members of the club were also and always members of the public. The Smoke Free Ontario Act defines a "public" place as anywhere the public is invited or permitted to enter. Since members of the club are also members of the public who are permitted to enter the place, the club is therefore a public place. A private dwelling is specifically exempted in the Act. The Prosecutor pointed out that this is the only place in the act where the term "private" is used. There is no mention of any other type of private building.
Dave Lindsay expressed concern that this definition was overly broad. If the Act applies to "public" buildings, then by inference there must be "private" buildings which are outside the jurisdiction of the act. (He did not point out that, according to the Prosecutor's interpretation, even if only one person is permitted to enter a building, then the building is "public" since that person is a member of the public. One would than ask why the qualifier of "public" was used if there is no such thing as a private building.) The judge seemed to be challenging the prosecutor’s arguments with comments such as, “When we restrict rights of the individual, we must do so in the narrowest fashion.” It seemed that Mike had a good chance.
The Judge declared he would need a month to make a decision. Since there was some difficulty determining a date suitable for the Judge, Prosecutor and Dave Lindsay, the Judge agreed to provide a written decision by February 21, 2008. The court encountered "a number of problems" and the transcript of the hearing was delayed. As a result, the judge's decision was not delivered until April 10, 2008.
The first half of the decision seemed to support Mike's arguments. But the second part of the decision ended with the judge ruling against Mike Kennedy. Mike is now appealing to the next level of the legal process and should be heard around September in Toronto.
The following is a video (1 minute, 48 seconds) taken after the Appeal was heard.