April 23, 2001

The Editor
The Ottawa Citizen
1101 Baxter Road
Ottawa, Ontario
K2C 3M4
(not published)

Dear Sir/Madam:

RE: Ottawa Region Smoking By-Law

We read recently with great interest an article in your April 7, 2001 edition and felt compelled to provide you with facts that were not put forth during the recent Council meeting referred to therein. We trust that you will be as compelled to read the information we provide herein and that it will provoke in you the incentive to act accordingly.

We understand that your Region is in the process of implementing a no-smoking by-law, based on the harmful health effects of second-hand smoke. As you are no doubt aware, the Regional Municipality of Waterloo implemented one of the most stringent no-smoking by-laws to date.

As citizens of the Region of Waterloo, we would like to bring to your attention matters which this Region would sooner not let be known. The inception of this by-law began not as a democratic process, but as an advocacy group’s agenda put forth as “Public Health Policy”.

In December, 1992, after several years of advocating, the United States, Environmental Protection Agency (EPA) released its Report, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, which report classified second-hand smoke as a Class A Carcinogen. In 1992/1993, the Council for a Tobacco Free Ontario invited Regional and City Council members to sit on their AdHoc Committee for the purpose of writing and putting forth their “Manual” on the implementation of “no smoking” by-laws. In November, 1994, the Council for a Tobacco Free Ontario published, “Let’s Clear the Air, Ontario: Local Tobacco Control - The Facts and Issues”. This manual sets out how to implement a no smoking by-law, complete with a model by-law, compliance matters, enforcement, and penalties. It is important to note that this manual clearly references the 1992 EPA Report as the justification for basis of second hand smoke causing harm to people.

Shortly thereafter, the Council for a Tobacco Free Waterloo Region surfaced. This Council became involved with the Region of Waterloo Health Committee Board. The Council for a Tobacco Free Waterloo Region received $145,000 from the Federal Government and $245,000 from the Provincial Government in 1999 to assist in implementing this by-law. The Council for a Tobacco Free Waterloo Region assisted the Region in implementing the Region of Waterloo by-law. It was also the Council for a Tobacco Free Waterloo Region (Josie D’Avernas), who provided some of the studies (all utilizing the 1992 EPA Report as justification) to the Regional Health Unit. Josie D’Avernas is a member of the Council for a Tobacco Free Waterloo Region, Program Training and Consultation Centre (of which the Ottawa-Carleton Health Department is in partnership), as well as working in the Health Sciences Department at the University of Waterloo.

The Genesis of the Waterloo Region’s By-Law began in 1993 and clearly stipulated the basis as being “the harmful health effects of second-hand smoke” as depicted by the US, EPA Report of 1992. In 1996, the by-law was enacted after lengthy consultation with the Health Committee. Sitting on this Health Committee was a person by the name of Michael Perley. Mr. Perley is from the Ontario Campaign for Action on Tobacco which happens to be a branch of the Ontario Medical Association (OMA).

With these major advocacy groups “influencing” the Regional Health Unit (all utilizing the EPA as their main basis), our Health Unit made its’ recommendation to Regional Council. Our Regional Council also received a report prepared by the Ontario Restaurant, Hotel, & Motel Association (ORHMA), with regard to ventilation. This report was prepared for Council in an effort for affected businesses and Council to reach a compromise. This report was given to the Health Unit for review by Council. However, Mr. Michael Perley of the Ontario Campaign for Action on Tobacco forwarded this report, without ORHMA permission, to a well-known anti-smoking activist, by the name of James Repace. James Repace was, by the way, one of the authors of the 1992 EPA Report. Mr. Repace sent the ORHMA Report back to Mr. Perley with a report of his own which indicated that there would be no protection of the public with a ventilation system. The ORHMA had requested the Health and Social Services Committee to forward their report only to Health Canada for Technical Review, and they did. However, as far as we are aware, Health Canada has not responded to date.

As citizens of this Region, we were not aware of a 100% smoking ban until the fall of 1999, when a massive advertising blitz (paid for by the Council for a Tobacco Free Waterloo Region), was undertaken. The Region, when asked, advised that it was the responsibility of the business owners to notify their customers. This is not democracy at work, in keeping the entire issue quiet to the general public, until it becomes necessary. As such, we started asking questions and began researching this issue. What we found, was astounding!

What our Region failed to tell its public, was in 1993, the EPA was taken to court. After a five year trial, Judge William L. Osteen of the United States District Court for the Middle District of North Carolina, on July 17, 1998 issued his Order and Judgement which stated,…”the court vacates Chapter 1-6 of and the Appendices to EPA’s Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, EPA/600/6-90/006F (December 1992)…”. We would like to state that that the EPA’s classification of second-hand smoke as a Class A Carcinogen is documented within Chapter 1 of the EPA Report, 1992. Since Chapter 1 (through to Chapter 6 and the appendices) were ordered vacated, the classification of ETS as a Class A Carcinogen does not and should not exist.

Another very important issue is the matter of who is using this 1992 EPA Report. All the studies used by our Region utilized the EPA Report as the justification and basis for the claim on second hand smoke. These include the National Clearinghouse on Tobacco and Health, Provincial Ministry of Health, Ontario Medical Association, and Health Canada, amongst others. If this 1992 Report has been vacated since 1998, why is it being used???

Another very interesting aspect came to light through several studies utilized by our Region which were authored, in whole or in part, by Dr. Stanton Glantz, Ph.D. In investigating this man, we obtained his Curriculum Vitae and were astounded to learn that Dr. Stanton Glantz is not a medical doctor, but has his Ph.D. in mechanical engineering. Dr. Glantz was also one of the authors of the EPA Report, as well as authoring a paper entitled, “Tourism and Hotel Revenues Before and After Passage of Smoke Free Restaurant Ordinances, 1999”, as well as numerous other papers on economic issues relating to no-smoking by-laws about which he can make no claim to professional competence - he does not have an economic degree. However, Dr. Glantz has been an anti-smoking advocate since the 1960’s and clearly is NOT a medical doctor.

Finding the information as outlined above, and numerous other reports and papers from The CATO Institute, Littlewood & Fennel, The Fraser Institute, World Health Organization, Congressional Research Report, Testimony of the Honourable Senator Thomas J. Bliley to Congress, and many others, we were shocked, to say the least, that our Region was using this material.

It was at that time (late December, 1999 and early 2000), that we began contacting all City and Regional Councillors. Only two Regional Councillors bothered to return our calls. Mayor Carl Zehr of the City of Kitchener responded that with regard to the Court ruling against the EPA, “that anyone can get studies one way or another”. The other Regional Councillor was Mike Connolly. We provide Mr. Connolly with copies of the Osteen Decision as well as reports from The CATO Institute and Littlewood & Fennel. This however was to no avail. On February 19, 2000, we had the honour of getting an appointment with the then Mayor of Waterloo, Joan McKinnon, at which time we provided her with the same information as was provided to Councillor Connolly. Still this was to no avail. Both Mayor McKinnon and Councillor Connolly acknowledged and accepted the fact that in the two months that the by-law had been implemented, there was a drastic decrease in “socializing” in coffee shops, restaurants, and bars.

We read with interest The Ottawa Citizen’s article of April 7, 2001, “Debate Smoulders Into Night”, wherein Waterloo Region’s own Brian Hatton (Environmental Health) advised Councillors of Ottawa Region, of the treatment his by-law enforcement officers had endured. What he failed to tell these Councillors were significant facts that his male by-law enforcement officers were entering the “female” washrooms of establishments without notice; that they had a 68 year old man handcuffed and taken away in a police cruiser and later released with no charges. His by-law enforcement officers demeaned persons in Bingo halls by classifying them as welfare people. They were rude and forceful in order to enforce the by-law. These facts can be verified in past editions of our newspaper, The Record.

The April 7, 2001 article also quoted Barbara Strachan, “Do you really want to see an 85 year old veteran stand outside of his club to have a cigarette when he fought for the freedom to smoke?” We are sure that she would be angry to learn that our own Brian Hatton, in his Cross-Examination in April/May, 2000 (for Motion 20 Hearing - June, 2000), stated, “Most of the veterans that do go to smoke, probably should smoke in their own homes and should not smoke in public”. After all veterans fought for freedom, justice, truth, and not to be treated as criminals or poor role models. They also fought against governments that tried to justify illegitimate ideals by illegitimate means for illegitimate reasons. Credentials may carry one through, but what about credibility?

Obviously our Mr. Hatton and your Dr. Cushman are of the same ilk with his statement, “There should be no second-class lungs in this City.” And yet, he is willing to create second class citizens of those who smoke. Dr. Cushman is willing to promote a witch hunt in order to create second class citizens of people who chose to smoke. How can doctors (i.e., Dr. Cushman and several others, refuse treatment to persons who smoke and still uphold the integrity of the Hypocratic Oath which clearly states, “First Do No Harm”. It occurs to us, by not treating, they are doing harm.

Smoking is not the issue regarding the by-law - the issue is second hand smoke and people can not forget this. Perhaps Dr. Cushman could respond to the facts, that if smoking has declined by 25% in the last 20 years, then why has asthma and other respiratory diseases increased dramatically in the same time period? The answer to this question lies in an article prepared by Ellen Ruppel Shell in The Atlantic Monthly (May, 2000), entitled, “Does Civilization Cause Asthma?”, which article quoted Dr. Fernando Martinez (Director of Respiratory Sciences, University of Arizona and author of Chapter 7, co-author of Chapter 8 of the EPA Report, 1992), as saying, “like most people, I assumed tobacco smoke and pollution were the problem-this was the politically correct way to think. But these factors turned out not to play a major role. In high-pollution areas, in low-pollution areas, among all ethnic groups, there was asthma. Clearly, something else was involved.”

The creation of this type of science has its roots in the Lalonde Doctrine wherein former Canadian Health Minister Marc Lalonde clearly stated:
“The State regulators should not wait for solid evidence of risk before imposing increased regulations or bans. Even when evidence was uncertain and ambiguous, the health message to the public should be loud, clear and unequivocal.”
Thus armed with this slap to intellectual honesty, the federal government forced cigarette manufacturers to inscribe “passive smoking causes cancer” and “tobacco smoke causes fatal lung disease in non-smokers” (Health Canada), even though there was no persuasive evidence that it did. One more example of the Lalonde Doctrine at work can be found in the Journal of the American Medical Association (JAMA), July 29, 1989, which reported a study that linked ETS exposure with an increased risk of cervical cancer. In response to critics who noted that such a link was biologically implausible and that the study ignored confounding factors, the authors responded that the study was justified simply on the grounds it might reinforce the “dangers of smoking” message. “While we do not know of a biological mechanism for either active…smoking or ETS to be related to cervical cancer, we do know that cigarette smoking is harmful to health. The message to the public, as a result of this study, is one that reinforces the message that smoking is detrimental to health.” “There is no compelling evidence to support our claim”, the authors admit, “but it is important in the interests of health promotion that the public be made to think that there is scientific evidence of harm.”

The debate about ETS (second hand smoke) though ostensibly a debate about smoking, is really a debate about much more than smoking. It is a debate about the legitimacy of perverting science and public policy founded on science in the interests of a particular health ideology. It is a debate about the worth of a health paternalism that guarantees to leave all of us less free, but not less ill.

If any of these legislators, law makers, politicians, advocates, and health professionals have a coat-of-arms, they should start wearing them, and shed the mask they wear as decency, and put forth the higher truth. Legislation of this type leaves citizens less free, but not less ill!

Perhaps one of the world’s leading epidemiologists, Dr. Alvan Feinstein of Yale University Medical School is correct when he stated, “In the current fervor of anti-smoking evangelism, what young scientists would want to risk their career and what older scientists would want to risk their reputation by doing anything that might be construed as support for the bad guys of the tobacco industry?…”. Dr. Feinstein also stated, “The inconvenient failure of the evidence to comply with a prime requisite of scientific reasoning for causality, however, has not inhibited the causal accusations. The “prosecution” has simply ignored the inconvenient results and emphasized those that are (in a memorable term) “helpful”.”

Just imagine if you and your neighbour had a contract that a court deemed invalid and your neighbour continued to insist that this contract be enforced. Would you stand for it? Wouldn’t you be upset and insulted if this contract was being waived around as proof? This is exactly what has happened. The anti-smoking advocates (with the support of health professionals) are utilizing the EPA 1992 Report as their sole basis and justification for having these by-laws implemented. However, they were all aware that this report (and the EPA) were in court from June, 1993 until the Order and Judgement of Judge Osteen on July 17, 1998. This clearly reveals the illegitimate nature of our Public Health Policy and the flawed character of the advocates and their supporters.

One further issue that has not been widely reported, and we are sure Mr. Hatton did not touch on this, is the economic factor. Businesses within Waterloo Region have closed and will continue to close, especially the smaller businesses that do not have the luxury of a large line of credit. Can these businesses continue to be in business when they have become seasonal (i.e., patios are only open in the warmer weather - not in winter)?. We have watched bars, restaurants, coffee shops and charities close in this Region. We have watched as owners of these businesses have lost their livelihood and in most cases, have lost everything. And for what? Health Paternalism? Our Region would sooner us believe that Oktoberfest was a failure due to an increase in “beanie baby” sales at various locations throughout the Region during Oktoberfest. The 2000 Oktoberfest was a “bust” because tourists were not willing to spend their money in a Region where they could not enjoy a cigarette with their coffee, meal, or drinks. One couple came from Ohio for Oktoberfest and arrived the first Friday of same. Hotel rooms were readily available. When they asked the hotel desk for an ashtray (as their were none in their room), they were then informed that the Region had a no-smoking by-law in place. They left the next day. We came upon them at a local gas station/coffee shop where they told us in no uncertain terms, what they thought of Waterloo Region and its smoking by-law and that they would sooner support their own Octoberfest in Ohio, then to come on holiday to Waterloo Region and be expected to stand outside in order to have a cigarette. They advised us that they would not return (nor would they promote) tourism in this Region.

Our Regional Government however “believes” this by-law is working. Clearly it is not. Businesses are defying. People are defying. The majority of people are taking their business outside the Region (i.e., to dine, for entertainment, etc.). As Ottawa is so close to Quebec, this too will happen in your Region…even if a Provincial By-Law is enacted, Ottawa will lose economically to Quebec. People will go outside of the Region contrary to Stanton Glantz’ economic report that there will be no economic losses in the hospitality industry. There will be as there is in this Region.

Obviously truth and honour are not valued by our leaders, but advocacy groups setting policies with illegitimate science can be accepted, where intolerance and blatant self interest are acceptable and rewarded behaviours.

Having provided you with a very simplistic overview as is possible in a letter, the question still remains…How can legislators, law makers, health professionals and advocates be so insistent on using the 1992 EPA Report? It has clearly been found to be corrupt in its science, and by its corrupt status, has ceased being science and is illegal. The legislators, law makers, health professionals, and advocates will tell you there is a mountain of scientific evidence to support their claims regarding second hand smoke. We agree that there is mountains of evidence, but it happens to be corrupt, illegal, and fraudulent. These same people will tell you they are telling you the truth. You should demand that they show you the facts. After all, they have not proven anything unequivocally. They will tell you that workers in the hospitality industry need to be protected. We ask, protected from what, themselves? They will tell you that the business owners and smokers want a by-law on their own terms, but these people are not justifying their claim(s) by using corrupt, illegal and fraudulent report(s).

These same people will tell you it is an American ruling and therefore has no relevance here in Canada. If the American ruling has no relevance, how can the American report have any relevance here in Canada? How can a report partially supported and written by a mechanical engineer and professional American and Canadian alchemists (statistical or otherwise), have any relevance?

If they tell you that they have a right to protect citizens, they are correct, but only by legitimate means and for legitimate reasons. Otherwise, they will lead you (and us) to believe that the means justifies the end.

If they have not told you these facts - why not? They are most certainly aware of them. If they have mentioned them to the public, what exactly is compelling you to discount these facts via a public forum through The Ottawa Citizen?

Alexis de Tocqueville summarizes it well in his 1840 essay, “Despotism in Democratic Nations” where he wrote:

"After having thus successfully taken each member of the community in its powerful grasp and fashioned him at will, the supreme power then extends its arm over the whole community. It covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate to rise above the crowd. The will of man is not shattered, but softened, bent, and guided; men are seldom forced by it to act, but they are constantly restrained from acting. Such power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation (region) is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd."

As you can deduce from the foregoing, we have spent considerable time and effort researching this issue. We have written numerous letters to our local media (and others) in an attempt to have the truth factually represented. However, we have met with resistance at every turn.

We ask that you review the foregoing and additional material enclosed herein and we would welcome you to attend our home should you wish to review the aforementioned material or to discuss this further.

We trust that you will find the courage to put forth the facts as they are and not as they are conveniently portrayed. Thank you for taking the time to read the foregoing and should you have any questions, please do not hesitate to contact us.

Yours truly,
(signed)
Tony Kapsalis, and Betty White
(address)
Kitchener, Ontario