Bar owners face jail over smoke bylaw

WATERLOO REGION -- Outraged at the ongoing and deliberate flouting of Waterloo Region's smoking bylaw by 28 local bar owners, regional councillors yesterday unanimously approved stricter enforcement measures for repeat offenders.

The measures include asking a judge for a prohibition order against an establishment, which, if ignored, could result in the courts sending the owner to jail.

Councillors on the region's community services committee first wanted a clarification of the jail option, which solicitor Richard Brookes explained would be a decision of the courts, not the region.

Satisfied, more than one councillor expressed impatience and anger at "the hold-outs" as the violating establishments are called by the region's environmental health director Brian Hatton.

"This is a contempt issue," said Kitchener Mayor Carl Zehr.

"It's a deliberate disregard for the law. These people are thumbing their noses at it. And if this is how a group of individuals treat the laws of the community, I have no hesitation in supporting the recommendations," Zehr said.

'END OF THE LINE'

Wilmot Township Mayor Wayne Roth was emphatic.

"This is the end of the line," Roth said. "Staff need to have every available means at their disposal. We also owe it to the 99 per cent of operators who are complying. They are very frustrated, they are complaining that it's not a level playing field. We have an obligation to them," Roth said.

Hatton also received approval to assign six additional public health inspectors for repeated visits to the non-compliant establishments, to publish the names of those charged, impose stiffer fines and to continue with public education.

Hatton said, ever since the law came into full effect Jan. 1 2000, banning smoking in all enclosed public places, public education has kept pace with enforcement. So now, more than two years later, compliance among the region's thousands of public places, including restaurants and bars, is at 99 per cent.

Every effort has been made to get the 28 "holdouts" to come on board. Repeated warnings, charges and convictions have been issued, to no avail, Hatton said.

"They do not want to comply, and have no intention of complying," Hatton said.

"Unfortunately, there's always a small minority who ignore the medical evidence," added Brookes.

"Unfortunately, we have to go to the next level. Even three warnings are not serving any purpose anymore. The fines have gone as high as $3,000, with several fined $1,000."

If convicted on a first or second charge of breaking the bylaw, a bar owner would then have a record, said Brookes. Regional staff would then go to a judge or justice of the peace, and ask for either an increased fine or a prohibition order. If the judge agreed to an order, the court would issue it, telling the bar owner to comply with the law. And then, if he or she did not, a judge could issue a contempt of court order.

Only then, would a judge decide whether and for how long to send the person to jail.

"And contempt of court is considered a major offence," Brookes said.

Waterloo Coun. Jane Mitchell wondered whether jail terms may create a martyrs group out of the defiant bar owners.

"Would we be allowed to just close them down, like food premises or swimming pools?" Mitchell asked.

Not directly, replied Lisa Pasternak, solicitor and manager of prosecutions for the region.

However, staff also got approval to notify the Alcohol and Gaming Commission of Ontario of the "status of compliance" of an establishment wanting to renew its liquor licence. Staff already notifies the commission of convictions under the bylaw.

The commission usually wants to establish that all laws are being obeyed, including local bylaws.

"The Liquor Licence Act requires a licence holder to carry on business in accordance with the law, which arguably includes smoking bylaws," Hatton and Brookes said in their report.