BY KEITH LACEY
Just over one month after Sudbury?s new bylaw prohibiting smoking in bars was implemented, bar owner Dave Horton was in court Wednesday asking the controversial bylaw be deemed illegal.
After hearing a full day of arguments by lawyer Michael Hennessy, who was representing Horton, the owner of Tommyknockers Pub in New Sudbury, and City of Greater Sudbury lawyer Steven Vrbanac, Justice Lawrence Kozak is expected to take several weeks to render a decision.
If he rules in favour of Horton, it would set a provincial and perhaps national precedent as there hasn?t been a single successful court challenge against municipalities introducing smoking bylaws in Ontario.
Hennessy, who is an active member of the Sudbury-based Citizens Advocating Bylaw Reform (CABR), to which Horton is also a member, argued the province has every right to introduce legislation prohibiting smoking in public and workplaces.
However, the Sudbury bylaw that went into effect June 1 is illegal and should be quashed, said Hennessy.
?Mr. Horton brings forward a motion asking you to call this city bylaw illegal?and in effect asking you to overturn this bylaw,? said Hennessy in his opening remarks to Kozak, a veteran judge from Sault Ste. Marie who is semi-retired.
The key issue, according to the complainant and other bars owners in and around this community, is a provision in the bylaw which states employers must ?adopt and implement? the language, common sense and law that comes part and parcel with the bylaw, said Hennessy.
?The city doesn?t have the power to enact a bylaw that requires him (Horton), as an employer, to adopt on his own, a non-smoking policy,? said Hennessy.
There?s no argument provincial legislation gives municipalities and municipal politicians the powers to enact and incorporate bylaws, but forcing employers to write up those policies, enforce provisions of the bylaws and ?basically be told what to think? is far beyond the scope of the legislation, said Hennessy.
Wednesday?s hearing wasn?t about any city?s right to prohibit smoking in workplaces or about the city engaging in proper consultation with members of the public before passing the bylaw, said Hennessy.
There?s also no question smoking in public places caused a health hazard to smokers and those who don?t smoke and there?s no argument to be made about whether municipal officials are able to compel employers to comply with smoking bylaws, he said.
The complainant?s main argument focuses on forcing employers to adopt the thinking, logic and ideology behind the bylaw .
?The crux of the matter?is his concern being required as an employer to adopt this policy voluntarily?embracing it as his own,? said Hennessy. The notions of choice and compulsion are complete opposites.?
No city should be allowed to introduce policies that force employers against their will ?and tell them what to do?to tell employers what to think,? said Hennessy.
?We?ll be darned if the city is going to tell us what to think.?
Vrbanac agreed the Ontario Court of Appeal and Supreme Court of Canada have repeatedly ruled municipalities do have the authority to pass and enforce bylaws for the public good.
?This kind of legislation is not new,? he said. ?Hundreds of similar laws have been passed and there have been numerous challenges.?
Citizen challenges to smoking bylaws have been raised in numerous Ontario cities, including Waterloo, Ottawa, Chatham and Kingston and all have failed to overturn the existing legislation, said Vrbanac.
Asking employers to adopt and implement bylaws isn?t a method of telling individual employers what to think, but rather a method of ensuring compliance of bylaws enacted in good faith to make for better and healthier communities, he said.
Judicial intervention to overturn bylaws or judge them illegal must only be enforced in the rarest of occasions and this court proceeding doesn?t meet that test, said Vrbanac.
?It requires something overwhelming?the applicant must prove something beyond overwhelming,? he said. ?I urge the court to find this has not been accomplished in this case.?
Several other higher court rulings ruled if bylaws are passed to protect or improve the public good, health and welfare of its citizens, they should not be overturned, he said.
?The courts should not interfere?elected councils do have the powers to represent the best interests of its citizens,? he said.
The single-most important aspect of this particular bylaw is a public health issue and this must be considered in any ruling, he said.
