Bylaw No. 2012-86, A bylaw of the City of Ottawa to amend Bylaw No. 2004-276 to prohibit smoking in city parks and facilities.

Smoking tobacco products, using waterpipes, electronic cigarettes and smoking other weeds and substances are banned on all outdoor municipal property, including parks, beaches and recreational fields.

A news release was issued by the City of Ottawa on 13 March 2015 to inform residents that use of e-cigarettes and “vaping” is prohibited on all municipal property and in indoor municipal workplaces, including on OC Transpo buses and properties.

The original bylaw prohibited smoking in public places, including Frank Clair Stadium, Jetform Park and the Terry Fox Athletic Facility Stadium. Bylaw No. 2012-86 –

The definition of “outdoor municipal property” was amended to include parks.

The definition of “beach”, as part of the definition of “park” was also amended. Bylaw No. 2012-228 –

The definition of smoking was amended to include the words “or heated,” which meant that the use of waterpipes could be prohibited.

Products Included

Cigarettes, Cigars, Pipes, Electronic Smoking Devices, Other Weeds and Substances, Waterpipes

Definitions

“Smoke” or “smoking” includes the carrying of a lighted cigar, cigarette, pipe, or any other lighted or heated smoking equipment used to smoke any tobacco or non-tobacco substance; (added by By-law No. 2012-86 and amended by By-law No. 2012-228)

Places Smoking Prohibited

Beaches
E-cigarettes (outdoors)
Municipal Property
Outdoor Events
Parks
Playgrounds, which may include Splash Pads and Wading Pools
Sports and Recreational Fields and Facilities
Trails
Waterpipes (outdoors)

Policy Analysis

This is leading edge because the definition of smoking includes other weeds and substances (“non-tobacco substance”) and waterpipes (“heated smoking equipment”).

Furthermore, it prohibits smoking on all City property, including at outdoor events, and on beaches and trails. The bylaw also bans the use of waterpipes on all outdoor municipal property. One of the key clauses used in the bylaw to enable this is: “No person shall engage in any activity so as to interfere with or become a nuisance to the general public using the park.”

Electronic cigarettes are banned on all indoor and outdoor City properties. This is primarily a public nuisance bylaw, not a public health bylaw. Ottawa has used as enabling legislation sections 128 (Public Nuisances) and 129 (Authority to Regulate Odours) of the Municipal Act, 2001, which give municipalities the authority to enact prohibitions in relation to public nuisances and odours. The City also has a right as a property owner or lease holder to restrict activity on its own property. This legal authority arises from both the Common Law and the Occupiers’ Liability Act.

Ottawa has used these legal authorities to prohibit the use of waterpipes and smoking of non-tobacco products (other weeds and substances) on City property, including parks, sports fields, trails and beaches. Unfortunately, however, Ottawa has only prohibited waterpipe smoking outdoors, not indoors in bars and restaurants where the problem really lies.

This bylaw is also leading edge because it prohibits vaping on all property. However, the prohibition of vaping is outlined in a news release and has not yet been entrenched in the bylaw.  Furthermore, vaping is not prohibited inside workplaces or public places. This should be rectified to strengthen the bylaw.

Enforcement

Section 128 (2), Not Subject to Review, states that “the opinion of council under this section, if arrived at in good faith, is not subject to review by any court.” This means that if the bylaw is legally challenged, the city would not have to prove that waterpipe smoking was indeed a nuisance.

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