By Sara Ditta
The new OC Transpo smoking ban, which clamps down on bus stop smokers, may be difficult to enforce on city streets.
According to OC Transpo, smoking will be prohibited on all transit property, including nine metres (or 30 feet) from bus stops on city streets.
Ottawa lawyer David Hill says OC Transpo can easily apply a smoking ban on its own property, but enforcing the ban on city streets will be more complicated.
“You can’t infringe the transit bylaw by smoking not on their property, but within nine metres of their property,” he says. “All their bylaw says is not on OC Transpo property.”
Hill says he doesn’t think provincial legislation authorizes the city to restrict smoking on public streets.
But even if the city could, it hasn’t attempted it yet because there isn’t anything in the bylaw about a specific distance smokers must be away from transit property, he says.
The bylaw that supports the ban says that “no person shall, in or upon any transit property, smoke or ignite a cigarette lighter or match.”
There is no other mention of smoking in the bylaw.
Hill has past experience with the city’s smoking bylaws. In 2001, he was asked by health agencies to check if the city had the right to pass its original non-smoking bylaws under provincial legislation, which he found it did.
He says he supports the idea of allocating the creation of a smoke-free zone for non-smokers, but the transit bylaw doesn’t provide those specifications.
“It’s too bad,” says Hill. “I would like to see them try and enforce it, but I don’t think it will stand up.”
But all other transit property including transitways, shelters and vehicles are fair game, he says.
Bay Ward Coun. Alex Cullen says he doesn’t expect as many problems.
He says city roads belong to the city of Ottawa and the transit bylaw can be enforced on any city property.
However, the city has no jurisdiction on private property, he says, even if it lies within nine metres of a bus stop.
“But most of the time we don’t have this issue,” says Cullen. “ We expect people to be considerate of the health of others and we intend to enforce it where we can on our property.”
Local resident Dianne Hendersen has a bus stop right outside her door. She says she thinks the ban is a good idea, but also has some concerns about some of its implications.
“I’d be concerned if people were standing on my property to smoke if they were blind strangers,” she says. “I don’t know how they’re going to enforce the great outdoors.”
The primary intention of the prohibition is for smokers to be respectful of other people, says Kim Weston-Martin, OC Transpo chief special constable.
“Do we issue measuring tapes to the officers? The answer is no,” she says. “It’s about common sense, it’s about discretion.”
The nine-metre rule was established as a safe distance by the Smoke-Free Ontario Act.
She says designated smoking areas wouldn’t work because the purpose is total prohibition.
But people who smoke on their own property, on outdoor patios or walking within the nine-metre limit should not be concerned about a ticket, she says.
Even people smoking by themselves at a bus stop should have no problems.
Weston-Martin says the ban is intended to target people who are “overt[ly] smoking away or if it’s obstructing a non-smoker.”
She says there are simply not enough transit constables to patrol streets all the time, but they will react if they receive a complaint about a smoker.
Those who should be most concerned about receiving a fine are repeat offenders, she says.
Fines will range from $150 to $5,000.
The prohibition is being carried out in steps, she says.
The education campaign was the first step and now OC Transpo is establishing a work plan for some of its buildings, such as its main headquarters at 1500 St. Laurent Blvd., and defining legislative enforcement for those places.
Much of the legislation that supports the ban, including Smoke-Free Ontario and city bylaws, is not new, but will now be enforced to a greater degree with the prohibition, she says.
“We’re getting letters coming in asking, ‘why wasn’t anyone consulted with this new bylaw?,” says Weston-Martin. “But it’s not a new bylaw.”
The campaign began at the beginning of November and regular enforcement of the prohibition will begin in the new year.