Injustice in Canada

Author: Robert Prasker
Article Published: 2010/04/19

The Supreme Court of Canada has refused to hear the appeal of Smoker's Choice Club owner Mike Kennedy. As a result, Mr. Kennedy will have to pay a fine of $3500.

What law did Mike Kennedy break? He didn't break any law. Kennedy, acting within the parameters of the law, opened a private club where members paid dues to eat and drink in an environment where they could smoke. Mr. Kennedy did not have any employees; volunteers did the serving. People had to show a membership card at the door in order to gain entry.

Unfortunately, in today's atmosphere of engineered anti-smoking zeitgeist, complying with the law is now somehow perceived as "getting around" the law. The wording of the Smoke Free Ontario Act is In the sidebar of the story from CBC News, and it's clear that private clubs aren't mentioned.

As Ayn Rand wrote: "...when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws... But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers."

Mr. Kennedy's case goes even beyond Rand's prescient words, because Mr. Kennedy is not a "law-breaker". The Vancouver Sun states that Mr. Kennedy "defied Ontario's anti-smoking laws by opening a private club for smokers." Really? How so?

When smoking bans first gained footing in North America anti-smoking advocates claimed that the intent was to protect workers, and that they weren't trying to keep people from smoking. "Just step outside. That's all we're asking," they said. Of course, they were lying, and It didn't take a great deal of foresight to know that smoking bans were going to be a giant slip down the slope that has now led to forcing people in hospital gowns to tote their IV drips into the street to smoke.

The inference underlying the idea that Mr. Kennedy "defied the law" is that, despite any lip-service to the contrary, the overall intent of smoking bans is to push tobacco users and business owners around, and they should just get used to it. To Hell with what the law says.
If the law says that people can't ride bicycles unless they are wearing a helmet, and people begin wearing helmets when bicycling, would anyone be surprised?  Mr. Kennedy's crime wasn't that he "defied Ontario's anti-smoking laws", anymore than someone  wearing a bicycle helmet is defying a law that is ostensibly put in place for safety reasons. Unless, of course, it is later admitted that such a  helmet law is part of a larger movement to ban and discourage bicycling. In reality, though, we know that a law requiring bicyclists to wear helmets isn't meant to prevent people from riding bicycles. The same can't be said for smoking bans, though. Acting within the law isn't doing enough for anti-smoking; one must also demonstrate that they are willing to conform to to anti-smoking's agenda. UK pub owner Nick Hogan knows this well, because he was jailed for refusing to actively enforce the UK's smoking ban.

Mr. Kennedy's real "crime" was  that his private club was perceived to be an act of defiance for which the state decided he had to be punished.  Mr. Kennedy's actions essentially amount to nothing more than an  expression of protest,  and for that reason, he has been found guilty of what amounts to crimethink. The issue isn't whether  Mr. Kennedy broke any law. Rather, the issue is that he dared to disagree with the broader intentions of the public health establishment.

Public health official Yves Decoste told the CBC that Kennedy  "had set a former bar and it was not a private residence" and that Kennedy "was inviting members of the join him.”

Is there a requirement that clubs be set up in private residences? If so, are the residences forbidden from having a bar? If private clubs are forbidden from soliciting membership, then what would be the point of establishing a club in the first place?

The Vancouver Sun further reports that the Smoke-free Ontario Act defines a public place as a place "which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry."

However, Kennedy wasn't collecting a door charge, but a monthly membership fee. Also, establishing private membership, by definition, would seem to preclude any conception of the club's members acting solely as members of the general public.  Kennedy required all members to sign a document stating that they accepted any risks associated with being exposed to smoke. This, if nothing else, should establish that club members exhibited a common desire that isn't necessarily shared by any random person. Especially these days.  

Quite tellingly, Canada's Supreme Court did not provide an explanation as to why it would not hear Kennedy's case. If it had, it seems difficult to see how the court could rule against Kennedy given that Ontario's anti-smoking laws appear to say nothing about private clubs. Also, there seem to be no allegations that Mr. Kennedy had failed to enforce the conditions of private membership. Instead, it seems the court took the "see no evil, hear no evil" approach. Rather than uphold the law and the rights of Mr. Kennedy and his club's members, it appears that Canada's Supreme Court simply copped out for the sake of preserving credence for public health's anti-smoking crusade.

Laws form the foundation of government and society. In order for government to have any meaningful purpose, laws should say what they mean and be interpreted with exactitude. It's bad enough that elected officials use their power to capriciously create laws which are unnecessary or, as is the case with anti-smoking laws, are used as a cudgel to browbeat people regarding their lifestyle choices. What's even more frightening than the  indiscriminate creation of laws, and perhaps a symptom of that tendency, is the increasing willingness of government to ignore the law entirely when it stands in the way of public health crusaders. What's happened to Mike Kennedy is not the first example in the evolution of this dangerous precedent.

The most consipicuous example would be the failure of the 46 States Attorney Generals, the U.S. Congress, and, so far, the courts to recognize that the Master Settlement Agreement (MSA) is explicitly forbidden by Article I, section 10 ("The Compact Clause") of the U.S. Constitution, which reads: "No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State." In addition, The U.S. Supreme Court has refused to hear, without comment, an appeal from smaller tobacco manufacturers regarding anti-trust implications of the MSA.

In Ohio, it appears that the Attorney General is turning a blind eye to allegations of multiple instances of ballot fraud and misconduct on the part of Ohio's Secretary of State.

In general, not only has government failed to protect people from the hostile and divisive influence of zealous anti-smoking interests who would be glad to see all tobacco users thrown into jail, government has been complicit in empowering such interests.

The near-sighted view is that accomodations should be made when the law stands in the way of the larger cause of a public health crusade, and interpretation of the law can be tweaked when it comes to dealing with violators. Put another way, this means that anyone claiming to act under the banner of "the public good" is above the law. In reality, the implications of selectively interpreting or simply ignoring the law are much farther reaching than the considerations of any "good cause". If the law is going to be regarded as an inconvenience when it comes to the rights of tobacco users and business owners, the precedent has been set for the law to offer no protection to anyone except for zealous special interests.  

The late Gian Turci's interview with Mike Kennedy from August, 2008 is available here.

Additionally, this video from an Ottawa Committee meeting is available on the website. From the discussion, it seems quite clear that private clubs are exempted from the smoking ban.


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