Smoker’s rights fight heats up

You gotta love this story. After years of people telling him he’s a whackjob, someone actually listens. And…by gosh, he might be right!


Mike Kennedy is a smokers' rights advocate who is trying to take a court case to the Supreme Court. (Tony Caldwell/QMI Agency)

OTTAWA — This story reads like Don Quixote tilting at windmills, only instead of windmills Mike Kennedy has been taking a run at government bureaucrats and public-health officials.

He has been fighting for eight years. Fought the City of Ottawa when it came in with its no-smoking bylaw. Then the province of Ontario, when the Smoke-Free Ontario Act came into effect in 2006.

It’s the province he’s still fighting with, in a story that took an interesting turn last week. It may also be the funniest tilting-at-windmill story that Kennedy has.

Happened in September 2007, when Kennedy tried to open a “private-members club” in Smiths Falls. Tried to do it at the site of the old Doolittle’s Pub, one of the few pubs in the world that once had a one-armed bartender.


It was a strange little pub, on the ground floor of a Comfort Inn, right by one of the locks on the Rideau Canal. Sadly missed, in an odd way. The perfect site for one of Kennedy’s escapades.

So anyway, he opened a private-members’ club. Hired some contract workers. Threw open the doors. Sold membership to his private club, the greatest amenity of which, as it turned out, was ashtrays.

That’s right, it was a smoker’s club. And boy, did that cause some problems.

In less than a month Kennedy had been booted from the premises (and it always took a fair bit of work to be booted from Doolittle’s). The Leeds Grenville and Lanark Health Unit had laid charges against him. His business dreams were up in smoke.

Kennedy has been fighting those charges ever since. Along with the $3,600 in fines the health department gave him.

Fought it at trial. Fought it through two appeals. Fought it when everybody started laughing at him and saying things like, “Mike, forget it. You’ve lost. Go home and have a cigarette.”

Fought it and talked about it and pretended he didn’t hear the laughter, or understand that people thought he was obsessed and perhaps even moderately crazy (“why would I spend so much time on this? Well, I guess its because I’m a dumb hick from Overbrook who can’t walk and chew gum at the same time.”)

But you know what? Someone finally listened to Mike Kennedy.

Martin W. Mason is one of the most respected lawyers in Ottawa.

He is a partner with Gowlings. Has served on the national and Ontario council of the Canadian Bar Association. Is past chair of the bar association’s council on constitutional and human rights law. Teaches constitutional law at the University of Ottawa.

And Martin W. Mason thinks Kennedy has a point. Has such a strong point, in fact, he hopes to argue his case before the Supreme Court of Canada.

“This is not a smoking case,” says Mason. “That’s one of the dilemmas here, because smoking is evil. We have all been taught that, and it’s hard to see beyond that.


“But there are larger issues here. And one is whether we have the right to erect boundaries to which the state shouldn’t cross.”

Or put another way, as he goes on to explain, is there such a thing as “private” anymore in Canada?

In the pursuit of some societal goal, even one most Canadians feel is laudable, can the state go too far?

To Mason, the argument that Kennedy has been making for two-and-a-half years now — that the Magna Carta died when the Leeds, Grenville and Lanark health department barged into his club, that the King now has the right to enter your home on a whim — is not such a stretch.

“What is the definition of a public place?” asks Mason. “The distinction between private and public, in my opinion, was not addressed properly by (the Ontario Court of Appeals.)

“As it reads in the appeals court decision, I think an argument could be made that your home is now a public place.”

That’s what tripped up Kennedy. That he allowed smoking in a public place. Now one of the most pre-eminent lawyers in the country thinks the state has gone too far, in its search for a smoke-free Ontario.

Last week, Mason filed the final paperwork on his application to the Supreme Court to review the case.

He thinks the demise of Kennedy’s little smokers’ club in Smiths Falls is of “national and public interest,” one of the requirements for the Supreme Court to hear the case.

“Maybe,” says Kennedy — with a little self-satisfied laugh you almost can’t fault him for — “I’m not so crazy after all.”

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