Hampstead: Trying to penalize what it can't criminalize

By Beryl Wajsman on March 24, 2018

Hampstead's ban on smoking in public spaces - including sidewalks - is an affront to a free community, unconstitutional in its breadth, unenforceable without encroachments on individual liberty, unnecessary even for health reasons and exhibits the worst elements of blue-haired prohibitionism that forgets the teaching of history which is that prohibitions increase crime. And the paternalistic manner in which Hampstead  did it is a slap in the face to the democratic due process owed to voters. Elected officials are our employees. Not the other way around. 

Moscow Mayor Yuri Luzhkov was once asked why there are no parking meters in the city. Luzhkov had an astonished look and responded, "Because the streets belong to the people. They already paid for them." It is a lesson Hampstead should learn. Hampstead is trying to penalize what it can't criminalize. It is to be hoped that people will practice civil disobedience, refuse to pay if caught and force Hampstead to prosecute and tie up its municipal operations into knots with endless legal proceedings.

The town claims that it is pushed this ban under provincial law that gives municipalities the power to regulate various matters of public order. That legislation however, relates to matters of provincial and municipal control. Issues of street lights, traffic lights, demonstration permits, snow removal and the like. It does not give municipalities the power to legislate over constitutional and criminal law and certainly not over Charter protected individual rights to engage in legal activities in public. That is ultra vires the town's powers. Smoking is legal. It will forever be so because all governments remember that the last experiment in outlawing what adults consume - namely the American prohibition on liquor - resulted in increased alcoholism and gave us organized crime. Young people particularly respond positively to the romanticism of engaging in that which is illegal. It will also remain legal because the sales taxes amount to ten times what smoking related illnesses cost the health system.  Countries like Denmark and Portugal that have legalized weed - and made it available even in bars - have actually seen a reduction in teen consumption. That is human nature. It's legal so it's boring.  Hampstead is attempting to put penal penalties on actions that are not criminal. Indeed, the proposed provincial legislation that will regulate the decriminalization of marijuana gives all of us the right to carry and consume up to 30 grams of weed on our persons in public. 

The town also claims that it is doing this as a matter of public health. That claim has no basis in fact. There is not one credible study that demonstrates any substantively quantifiable deleterious effects from second hand smoke in the open air. Particularly not when the person smoking is moving. Its all swept away by the wind and overpowered by the exhaust fumes of buses and cars.  A legal, though not necessarily desirable, activity like smoking should be fought through education and persuasion not compulsion and coercion. The town also claims that some people object to the smell in the air. Well there are many who object to the smell of sweat at the tennis courts, bbqs, the noise of children in parks, the smell of savory foods being taken from house to house, the scent of perfumes and colognes that irritate allergy sufferers. Does Hampstead propose to penalize those activities too? Law must be consistent or it fails the test of equity. Does Hampstead propose to become a total command jurisdiction? In the end satisfying no one and imprisoning everyone in the yoke  of straightjacket rule and regulation? As Justice Louis Brandeis wrote, "For the law to be respected, it must first be made respectable." 

The manner in which Hampstead went about this new prohibition - by fiat and without public consultation - displayed a total disdain of respect for the public this administration serves. It is also hypocritical in the face of  its support - moral and material - of the Court challenge to the province's elimination of Mont-Royal riding. That case is founded on Charter guarantees of protecting individual rights of choice in public participation in elections. How can Hampstead justify now abridging individual rights of choice in  private practices. The essence of a free society is the freedom to choose. Even to choose badly. Hampstead, as all those in the challenge on Mont-Royal, rightly pronounced its opposition to the arbitrary manner of Elections Quebec imposition of its decision. Yet that arbitrary arrogance is precisely what Hampstead has exhibited now. It announced this proposed bylaw at the last council meeting stating it would be voted into law at the April meeting and then moved it up to a special meeting this past Monday. It is to the credit of the two councillors who voted against the by law - Warren Budning  and Leon Elfassy - for recognizing this.

And precisely how does Hampstead propose to enforce this bylaw with its outrageous fines that go to $700 for a second offence? Montreal police can't enforce it. Not their jurisdiction. Hampstead announced that its public security officers will do so. So will those officers now be focused on collecting fines for Hampstead's treasury instead of helping residents in emergencies? Will these officers be running after people into doorways because they saw them smoke? Is this the kind of "garden community" Hampstead will become? Or will the town set up eye-level cameras to monitor all public movement? The city of Montreal tried that in the Latin Quarter around St. Denis to catch drug dealers. The costly experiment failed miserably and was ended after eight months. It is a foundational principle of law that for legislation to be legal, it must be executory, meaning able to be complied with and reasonably enforced without abridging basic civil rights. This measure does not meet those criteria.

This measure will incite a "get off my back" reaction. There may even be individual instances of violent confrontations between authorities and fed-up residents. The new prohibitionists must stop lying to the public that every human problem will be solved by prohibition. It can't and it is not the right thing. Life is tough and unfair. But we are not children and we the people are self-reliant enough to handle it. As noted civil rights attorney and former Hampstead special counsel once wrote, "We are not yet a police state, but we are an inspector state. legislating niceness is not very nice." Hampstead prides itself on "progressive" municipal management. For all the good it may have done in the past, it will always be remembered now as a regressive, backward, petty little place akin with the few "dry counties" that still exist the Bible Belt in the United States. A sad legacy.


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