A number of recently-passed smoke-free bylaws in Ontario define restaurants and bars based on whether permission to enter is giving to persons of all ages, or only those 19 years of age or older. There are distinct pros and cons involved in using this age-based approach which are summarized below. (Please be advised that since publication of this memo, the City of Hamilton passed a new public place and workplace smoking bylaw that removed age restrictions. The bylaw took effect June 1, 2002).
Toronto, Windsor, Peel and Hamilton have passed smoking control bylaws that permit smoking in a portion of premises (ratio is set out in the bylaw) where entry to the premises is restricted to persons 19 years of age and over. All of these bylaws also permit smoking in other premises but only where such smoking is in a designated smoking room (DSR).
The Toronto, Windsor and Peel bylaws have not been challenged (note: the Toronto bylaw was challenged in a previous version before the age restriction was introduced in the bylaw).
The Hamilton bylaw is now subject to an application challenging the validity of the bylaw. The application claims that the bylaw is void for uncertainty in that it results in certain proprietors and businesses being subject to discriminatory and unequal treatment. However the application has been deferred indefinitely pending the reopening of the bylaw for housekeeping amendments.
- To date no bylaw with an age restriction has been struck down.
- There are other laws that have age restrictions based on age, e.g. the Tobacco Control Act restricts sales of tobacco to persons over 19 years of age and over. The sales and service of alcohol is restricted to persons 19 years of age and over.
- Subsection 213 (2) of the Municipal Act clearly permits premises to be regulated according to the class of premises.
- A bylaw that permits smoking based on an age restriction is easier to enforce than a bylaw that permits smoking based on a food/liquor ratio. It is often difficult to accurately determine what is the "true" ratio i.e. books are not kept in a consistent format or the premises keeps two sets of books.
- A public health argument can easily be made that second hand smoke is more harmful to youth rather than adults.
- An argument can be made that premises that utilize an age restriction cater to a much different type of clientele than premises that serve all ages.
- The courts will not entertain a Human Rights Code challenge. A challenge based on the Ontario Human Rights Code must be brought the person denied the right to smoke and not the proprietor and must be brought under the Code and not by an application before the Court. Such an application would be costly and time consuming for the applicant.
- The Court to date has upheld smoking bylaws as being constitutional.
- The outstanding Hamilton bylaw challenge casts some doubt on the validity of such bylaws.
- Bylaws based on age restrictions may offend the Charter of Rights and Freedoms, however to date the Court has upheld smoking bylaws as being constitutional.
- A person denied the right to smoke based on age could challenge the bylaw under the Ontario Human Rights Code however such a challenge would be costly and time consuming for the applicant.
An ideal smoking control bylaw would prohibit smoking in all licensed premises. However there are many good legal arguments that can be made for passing, as an interim measure to going totally smoke free, a smoking control bylaw that permits limited smoking in premises where entry to the premises is limited to persons 19 years of age and over.