Kennedy v. Leeds, Grenville and Lanark District Health Unit

Kennedy v. Leeds, Grenville and Lanark District Health Unit Collection Decisions of the Court of Appeal Date 2009-09-28 Neutral citation 2009 ONCA 685 Docket numbers C49015 Judges Doherty, David H.; Armstrong, Robert Patrick; Juriansz, Russell G. Subject Civil Decision Content CITATION: Kennedy v. Leeds, Grenville and Lanark District Health Unit, 2009 ONCA 685 DATE: 20090928 DOCKET: C49015 COURT OF APPEAL FOR ONTARIO Doherty, Armstrong and Juriansz JJ.A. BETWEEN Mike Kennedy Appellant and Leeds, Grenville and Lanark District Health Unit Respondent Mike Kennedy, acting in person John Petrosoniak, for the respondent Heard: May 6, 2009 On appeal from the judgment of Justice Stephen March of the Ontario Court of Justice dated April 8, 2008, dismissing an appeal from the conviction entered by Justice of the Peace Darrell F. Bartraw on March 7, 2007. Armstrong J.A.: INTRODUCTION [1] The appellant leased premises in a hotel in Smiths Falls, which had been operated as Do Little’s Sports Bar & Grill (“the premises”). In order to avoid the provisions of the Smoke-Free Ontario Act, 1994, C. 10 (the “Act”), the appellant purported to operate the sports bar as a private club for people who paid a monthly membership fee of $4.00. [2] The appellant was prosecuted under the Act and convicted of five offences related to the use of the premises for smoking by its patrons. [3] The Act prohibits smoking “in any enclosed public place”. The central issue in the prosecution was whether the premises fell within the definition of “enclosed public place”. Section 1(1) of the Act defines “enclosed public place” as follows: “enclosed public place” means, (a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them, (i) that is covered by a roof, and (ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or (b) a prescribed place Both the justice of the peace at trial and the provincial court judge on appeal held that the premises constituted an enclosed public space. The convictions followed accordingly. [4] The matter now comes before us by way of leave to appeal, granted by R.A. Blair J.A. on two questions: (i) Do the premises regarding which the charges were laid constitute an “enclosed public place” within the meaning of s. 9(1) of the Act? (ii) Is the definition of “enclosed public place” in the Act general, vague, ambiguous and/or uncertain in its scope and application? [5] For the reasons that follow, I conclude that the premises in question constituted an “enclosed public place”. I further conclude that the definition of “enclosed public place” in the Act is not general, vague, ambiguous and/or uncertain in its scope and application. THE FACTS [6] The appellant was the organizer and operator of Smokers’ Choice/Non-Smokers’ Choice, a not-for-profit club (the “club”). Membership in the club was solicited by recruiters who approached members of the public who were smokers. The prospective members were given application forms which were also available at the door of the premises. [7] The membership application form, which was signed by the prospective member, contained the following declaration: AS A MEMBER I AGREE TO COMPLY WITH THE FOLLOWING RULES; · I accept second hand smoke at private functions · I will not engage in the use of drugs · I will not permit entry to the general public · I will not enter if intoxicated · I will not jeopardize the enjoyment of other members [8] The club was said to have a membership in excess of 500 people from Smiths Falls and the surrounding communities, including Ottawa. [9] No change was made to the interior of the premises other than to remove the “No Smoking” signs and place ashtrays on the tables. The “Do Little’s Sports Bar and Grill” signs remained both inside and outside the premises. There was an electric “OPEN” sign in the window. There were no signs prohibiting entry by the public, although one sign advised patrons not to enter if sensitive to second-hand smoke. [10] The operation of the premises was carried out by independent contractors and volunteers under the supervision of the appellant. [11] Patrons of the sports bar, as before, could purchase food and alcoholic beverages. However, they were also permitted to smoke on the premises. [12] On September 8, 2006, in response to a complaint, an inspector from the Leeds, Grenville and Lanark District Health Unit conducted an inspection of the premises. He observed that there were no “No Smoking” signs posted and there were ashtrays on the tables. He made a return visit on September 13, 2006. After the appellant refused him entry, the inspector looked through a window and saw a person sitting in the bar area while holding lighted tobacco. He also observed tobacco smoke in the premises. His final visit took place on September 20, 2006. The inspector observed the appellant coming out of the premises with a partially smoked cigarette in his hand. The inspector presented his credentials to the appellant and explained that the Act authorized his entry for the purpose of conducting an inspection. Nonetheless, the appellant again denied him entry. [13] As a result of his observations at the premises, the inspector laid an information against the appellant in respect of five offences under the Act: (i) as a proprietor of an enclosed public place, he failed to post signs prohibiting smoking – s. 9(6)(c) of the Act; (ii) as a proprietor of an enclosed public place, he failed to insure that no ashtrays remained in the enclosed public place – s. 9(6)(d) of the Act; (iii) as a proprietor of an enclosed public place, he failed to insure compliance with the no smoking requirements – s. 9(6)(a) of the Act; (iv) he obstructed an inspector from conducting an in-spection – s. 14(16) of the Act; (v) he was smoking tobacco or holding lighted tobacco in an enclosed public place – s. 9(1) of the Act. THE TRIAL [14] The trial of the charges proceeded before Justice of the Peace Bartraw (the “trial judge”) on March 7, 2007. The central issue was whether the premises were an “enclosed public place” within the meaning of the Act. The trial judge said: It may very well be that you are a member of an organization but that does not stop you from being a member of the public of the Province of Ontario and the legislature’s intent was to protect members of the public of the Province of Ontario from second hand smoke and smoke and that is why they have made these laws. So whether you are signing a membership card or not, you are still a member of the public of the Province of Ontario. You should not have to be put into a situation where your health is at risk through smoking and that is why they put in these laws. So clearly when they made the definition under sub-section 1 of this Act, regarding an enclosed public place and when they say it is covered which is not an issue to which the public is ordinarily invited or permitted access either expressly or by implication, whether or not a fee is charged, they are speaking of all members of the public whether you are a member of a club or not. [15] Convictions followed and the appellant was fined a total of $3,530.00. THE ONTARIO COURT OF JUSTICE APPEAL [16] The appeal, pursuant to s. 116(2) of the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended, was heard by Justice S. March of the Ontario Court of Justice on January 3, 2008. The appeal judge noted that the trial had proceeded on the basis that if the prosecution established the premises, operated by the appellant, were an “enclosed public place”, then convictions would follow as the other elements of the offences had been made out. The appeal judge adopted a purposive approach to the definition of “enclosed public place”. He also relied on this court’s judgment in R. v. D’Angelo (2002), 8 O.R. (6th) 386 (Ont. C.A.). In that case, the appellant was prohibited under s. 161 of the Criminal Code from attending a public swimming area where persons under the age of 14 might reasonably be present. He was arrested for swimming in his condominium swimming pool when minors were present. The pool was restricted to the 8,000 members of the condominium club. The court had no difficulty in concluding that the swimming pool was a public swimming area. At para. 19 of his reasons, MacPherson J.A. said: Finally, I turn to a consideration of the purpose of s. 161 of the Code. Section 161 is contained in Part V of the Code which deals with, inter alia, sexual offences. Many of the provisions in this part of the Code are designed to protect children from sick adults who prey on them for purposes of selfish sexual gratification. Adopting a narrow definition of “public swimming pool” – for example, which excluded such large facilities as Wet and Wild Kingdom or Canada’s Wonderland – would be a disservice to a particularly vulnerable group in Canadian society. [17] Similarly, the appeal judge in this case concluded: In applying the analysis set out in the D’Angelo case, this Court is satisfied that the decision of the Justice of the Peace was not unreasonable. The SFOA is to be interpreted broadly so as to attain the objectives of the SFOA which is to protect people from the hazard of smoking, including second hand smoke. It was clearly open for the Justice of the Peace to find that a group of people with approximately 578 members who are prepared to accept the hazard of second hand smoke, are still members of the public and therefore covered by the SFOA. [18] The appeal judge therefore upheld the convictions. THIS APPEAL [19] Both the appellant and respondent seek the leave of the court to introduce new material on appeal. The respondent moves to have the court consider the following documents: (i) the statement of the Minister of Health of 15 Decem-ber 2004 on the tabling of the legislation to create the Act. (ii) the statement of the Minister of Health of 15 February 2005 on moving the second reading of the legislation. (iii) the statement of the Minister of Health of 5 September 2006 to the Standing Committee on Estimates. The above statements relate to the intended purpose of the Act and the legislature’s intent that the Act apply to legion halls and private clubs. [20] The appellant, in a responding motion, relies upon a statement made by the Minister of Health to the Standing Committee on Estimates on September 5, 2006 to the effect that the Act was the mirror image of the City of Ottawa no smoking bylaw. Based on that statement, the appellant seeks to have admitted a raft of material concerning the Ottawa bylaw for the purpose of establishing that the bylaw did not apply to private clubs and by analogy, the Act does not apply to private clubs. [21] Additional materials sought to be entered into evidence by the appellant included: the minutes of meetings of committees of the Ottawa city council, various publications of the Ministry of Health and Hansard reports of the debates in the Ontario legislature concerning the Act. He also sought to tender in evidence a transcript of an interview on an Ottawa radio station talk show with the Chief Medical Officer of Health for the City of Ottawa. [22] Both the appellant and the respondent frame their motions as motions for the admission of fresh evidence. In my view, this material is not the kind of material that is typically received as fresh evidence, which must be assessed in accordance with the criteria articulated in R. v. Palmer and Palmer, [1980] 1 S.C.R. 759. The Palmer criteria are properly reserved for fresh evidence that goes to adjudicative facts. It seems to me that we can consider this additional material on appeal to assist in statutory interpretation if the interests of justice so warrant. The interests of justice require a consideration of the potential cogency of the material, the unfairness, if any, occasioned to the other side by receiving the material on appeal and the court’s ability to effectively assess that material. [23] In respect of the Hansard evidence, the Supreme Court of Canada in Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, has said that Hansard evidence is a legitimate source of assistance when a court is interpreting the provisions of a statute. At para. 35, Iacobucci J. said: Although the frailties of Hansard evidence are many, this Court has recognized that it can play a limited role in the interpretation of legislation. Writing for the Court in R. v. Morgentaler, … Sopinka J. stated: … until recently the courts have balked at admitting evidence of legislative debates and speeches… The main criticism of such evidence has been that it cannot represent the “intent” of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation. [24] In Re Canada 3000 Inc., [2006] 1 S.C.R. 865, Binnie J. relied on Hansard evidence and common sense to establish the meaning of the word “owners” in s. 55 of the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20. In doing so, he referred to the “limited weight” of Hansard evidence. [25] I do not perceive any unfairness in considering the Hansard material. First, both parties seek to rely on Hansard evidence to advance their case. Second, if Hansard evidence were admitted at trial it is doubtful that either side could have done anything more with the evidence than they could do now on appeal. Hansard evidence is not comparable to the evidence of a live witness who would be subject to cross-examination and whose evidence is better heard by the trier of fact. It is difficult to see how either side would suffer any disadvantage in the admission of this evidence in the Court of Appeal. [26] The Hansard references proffered by the respondent support its position and confirm the interpretation placed on s. 9(1) of the Act by the courts below to the effect that the legislature did not intend to exempt private clubs from the reach of the Act. [27] I do not agree that the material concerning the Ottawa bylaw would be of any relevance or assistance in determining the legislature’s intention regarding the definition of “enclosed public place” in the Act. Also, I do not find that either the publications of the Ministry of Health or the transcript of the radio interview with the Chief Medical Officer of Health to be of any assistance. [28] I now turn to the merits of the appeal. (i) Do the premises regarding which the charges were laid constitute an “enclosed public place” within the meaning of s. 9(1) of the Act? [29] I repeat the relevant words of the Act for convenient reference. Section 9(1), the offence section of the Act, provides: No person shall smoke tobacco or hold lighted tobacco in any enclosed public place or enclosed workplace. Section 1(1) of the Act, the definition section, reads: “enclosed public place” means, (a) the inside of any place, building or structure or vehicle or conveyance or a part of any of them, (i) that is covered by a roof, and (ii) to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or (b) a prescribed place (a) The Position of the Appellant [30] The appellant concedes that the premises satisfy s. 1(a)(i) of the Act; namely, the premises are the inside of a place that is covered by a roof. The sole issue on this appeal is whether the premises are a place “to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry” as set out in s. 1(1)(a)(ii) of the Act. [31] The appellant takes the position that the operation of the premises constitutes a private club to which the public is not ordinarily invited or permitted access. Entry to the premises is granted only to club members who must establish their membership in the club at the door by presenting their membership cards. The premises therefore do not fall within the language of the definition of “enclosed public place” under the Act. [32] The appellant also submits that the use of the word, “means”, as opposed to “includes” in the definition section indicates the intention of the Legislature to apply a restrictive approach to the definition of “enclosed public place”. [33] The appellant cites a number of cases in support of his position. He places particular emphasis on two decisions of the House of Lords: Dockers’ Labour Club and Institute Ltd. v. Race Relations Board, [1976] A.C. 285 and Charter v. Race Relations Board, [1973] A.C. 868. These dealt with allegations of racial discrimination and the meaning of “a section of the public” in the Race Relations Act, 1968 (U.K.), C. 71. Both cases are dated and, in my view, are not relevant to the issue before this court. [34] The appellant also places considerable weight on the judgment of the Supreme Court of Canada in R. v. Labaye, [2005] 3 S.C.R. 728. In that case, the appellant was convicted of keeping a common bawdy house under s. 210 of the Criminal Code. He operated a club that facilitated group sex. Only members and their guests had access to the club premises. Group sex took place on the third floor of a commercial establishment, which was separated from the rest of the premises by two doors. One of the doors was locked with a numbered key pad and marked “Privé”. Only those who were inclined to group sex activity were allowed to participate. [35] McLachlin C.J.C., writing for the majority, discussed the kinds of harm or risk of harm necessary to found a conviction in this kind of case. She referred inter alia to “the harm of public confrontation with unacceptable and inappropriate conduct”. She further observed at para. 42 of her reasons: Since the harm in this class of case is based on the public being confronted with unpalatable acts or material, it is essential that there be a risk that members of the public either will be unwillingly exposed to the conduct or material, or that they will be forced to significantly change their usual conduct to avoid being so exposed. The Chief Justice went on to conclude that on the facts of that case, there was no evidence of the kind of harm necessary to found a criminal conviction. [36] The court in Labaye was pre-occupied with what conduct is appropriately made subject to criminal sanction. There is no issue in this case of an adequate foundation for a criminal conviction. [37] I am not persuaded that the judgment of the court in Labaye is at all helpful in ascertaining the scope of the definition of “enclosed public place” under the Act and, in particular, whether the premises in issue constitute a place “to which the public is ordinarily invited or permitted access”. [38] The appellant also submits that the common law of trespass to land and the common law of privacy assist in the determination of whether the premises constituted an “enclosed public place”. I do not agree. [39] The appellant further questions the lawfulness of the inspector’s entry and attempted entry into the premises. This issue is not before us on this appeal. (b) The Position of the Respondent [40] The respondent submits that the Act is a public welfare statute, designed to promote public health and safety, and should be interpreted in a manner consistent with the purpose and objective of the legislative scheme: see Ontario (Ministry of Labour) v. Hamilton (City) (2002), 58 O.R. (3d) 37 (C.A.). [41] The respondent relies on s. 10 of the Interpretation Act, R.S.O. 1990, c. I.11, in force at time of offences, which reads: Every Act shall be deemed to be remedial, whether its immediate purport is to direct the doing of any thing that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. [42] The respondent notes that the Act exempts residential care facilities; psychiatric facilities; facilities for veterans; guest rooms in hotels, motels or inns; and scientific testing research facilities from its application. No mention is made of private clubs. The respondent concludes that the legislature would have expressly excluded private clubs if it had so intended. ANALYSIS [43] The modern approach to statutory interpretation is well known: Today there is only one principle or approach namely the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See E. Driedger, Construction of Statutes, 2nd ed. (Toronto, Ont.: Butterworths, 1983); R. v. Bell ExpressVu Ltd. Partnership, [2002] 2 S.C.R. 559 at para. 26. [44] I agree with the respondent that the Act is public welfare legislation designed to promote public health and safety. Such legislation attracts an interpretation that is consistent with its objective. In Ontario (Ministry of Labour) v. Hamilton (City) at para. 16, this court said: Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided. Similarly, in R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.) at para. 22, this court said: The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose. [45] Read as a whole, the Act is clearly designed to eliminate smoking in public places and thus protect members of the public from contact with second-hand smoke. The word “public” is not defined in the Act. There is no attempt to limit or restrict its application in any way. As I see it, people who join the club are as much members of the public as are members of a swimming club or tennis club. [46] In this case members of the “smoking public” were approached and recruited to patronize the former sports’ bar in the guise of joining a private club. While the club was said to be a non-profit operation it ran essentially as before, except that admission was restricted to those members of the public who paid four dollars a month and accepted the club’s simplistic rules. [47] If the appellant’s position was accepted, everyone who belonged to a private club would be exempt from the Act, even if the club chose to operate in a public place. Such an interpretation of the Act would defeat its objective of protecting the public from second-hand smoke. The approach taken by this court in D’Angelo supports the proposition that a narrow interpretation of “enclosed public space” would be wholly inappropriate. [48] If the legislature had intended to exempt private clubs from the application of the Act it clearly would have done so. As the respondent pointed out, ss. 9(7) – (11) of the Act set out a narrowly defined set of exemptions from s. 9(1) of the Act. It is significant that private clubs are not included in this list of exemptions. As indicated above, the statements in the legislature of the Minister of Health confirm this view. [49] In my view the approach which I take is consistent with the approach taken by the Saskatchewan Court of Appeal in Albertos Restaurant v. Saskatoon (City) [2001] 6 WWR 214. In the Saskatchewan case the court had the opportunity to consider the words “any enclosed public space” in a Saskatoon by-law regulating smoking in restaurants. Thirty-five restaurants brought an action to have the by-law set aside. The restaurants argued, inter alia, that although they invite the general public into their premises, they reserve the right to refuse entry to anyone they choose, therefore their premises were not public places within the meaning of the by-law. [50] I note that “enclosed public place” was not defined in the by-law and the facts of Albertos Restaurant differ significantly from this case. That said, I find the Saskatchewan court’s response to the arguments advanced by counsel for the restaurants to be helpful and informative. We cannot agree with their argument. The term “public place” as used in s. 142 is modified by the words which follow: “including...any building or part of a building that is open to the public.” The words “open to the public”, in their plain and ordinary meaning, include places to which “members of the public are customarily invited and admitted” as described in para. 6 of the agreed statement of facts. The reservation of the right to deny access to anyone, or to remove anyone, does not alter the fact of the general invitation of the public. In sum, a place to which the public is invited is clearly “open to the public”. If the legislators had intended to restrict the scope of s. 142 to places to which the public had a right of access, as opposed to a revocable invitation to enter, they would have said so. Furthermore, this interpretation conforms with the obvious purpose of s. 142: to permit a municipality to protect public health by regulating smoking in places where the public gathers, and to thereby protect the public from the deleterious effects of second hand smoke. To confine the municipality’s power to legislate to places to which the public has a right of access would render the legislation almost meaningless. [51] In conclusion I am satisfied that the premises in this case constitute “an enclosed public space” within the meaning of s. 9(1) of the Act. (ii) Is the definition of “enclosed public space” in the Act, general, vague, ambiguous or/uncertain in its scope and application? [52] As noted by Professor Sullivan in Driedger on the Construction of Statutes, 4th ed. (Markham, On.: LexisNexis Butterworths, 2002), at 385-386, the vagueness doctrine involves a consideration of “whether the legislation can be given a sensible meaning through interpretation, whether it provides an adequate framework for resolving interpretative doubt through reasoned legal analysis.” [53] Having concluded above that private clubs are not exempted from the Act and that the premises in issue fall within the definition of an “enclosed public place” in s. 9(1) of the Act, I am satisfied that the definition is not general, vague, ambiguous and/or uncertain in its scope and application. In my view, the definition of “enclosed public place” in the Act is capable of interpretation through reasoned legal analysis. DISPOSITION [54] I would answer “yes” to the first question and “no” to the second question. I would therefore dismiss the appeal. RELEASED: “SEP 28 2009” “Robert P. Armstrong J.A.” “DD” “I agree Doherty J.A.” “I agree R. Juriansz J.A.”