City hall lawyers say smoking ban needs to include tobacco

A new staff report recommends Halifax continue its prohibition for all types of smoking on public property—that is if the city ever wants to be successful in prosecuting cannabis users.

City council passed new bylaw amendments back in July outright banning smoking and vaping on municipal property outside of specially designated smoking areas.

The motion was met with immediate and sustained condemnation across the municipality. So loud was the outcry, that Dartmouth Centre councillor Sam Austin asked for a follow-up report at council's very next meeting looking at removing tobacco from the restrictions.

“This feels very bureaucratic,” said Austin. “It feels like micromanagement of the public space and I just can’t say what the underlying practical purpose of doing it is.”

City solicitors Derk Slaunwhite and Josh Judah have now returned with that staff report, but are recommending council keep cigarettes illegal for the sake of public health and the courts.

The current bylaw means the Crown only has to prove someone was smoking on municipal property. There’s no need to actually prove what they were smoking.

Changing that ban to restrict only cannabis—a soon-to-be legal product that Halifax has decided to criminalize—will be difficult to enforce, says staff.

“Investigators will need to get close enough to the offender to see what they are smoking and to smell the smoke,” write Slaunwhite and Judah. “Courts may also require some level of scientific analysis that the substance being smoked was in fact cannabis.”

If council does decide to limit the smoking ban to cannabis, staff suggest a new provision should be added so that judges can “infer the offender smoked cannabis when a witness describes the substance as cannabis.”


It's worth noting that Halifax Regional Council does not have any authority to decide what evidence a provincial court judge should or should not consider.

Also, given how much of the criticism about this nuisance bylaw has been on how it will unfairly target poor and racialized residents, it's unlikely that widening the potential for discrimination from city police to any old pot-smelling “witness” will be met with less vocal resistance from the public.

None of those concerns are contained in the staff report, however, which chiefly is focused on eradicating the public health risk posed by cigarette smokers.

“A prohibition against smoking on municipal property will help increase the number of non-smokers in the municipality,” write Slaunwhite and Judah.

Nova Scotia’s chief public health official has cited non-smoking policies as a crucial catalyst for the province’s declining smoking rates over the past 20 years.

Banning darts on municipal property would make everyone that much healthier, argue HRM staff.

“To continue to increase the rate of non-smokers in Nova Scotia, especially among youth, we need to strengthen and advance smoke-free environments.”

Along with the above recommendations, staff are also proposing a handful of housekeeping amendments for the renamed Smoking and Nuisance Bylaw.

The current document uses both “public place” and “weed.” Staff are recommending replacing those with the more accurate “municipal property” and “cannabis.”

Smokers in violation of the new bylaw face potential fines ranging from $50 to $2,000 for flagrant abuse. Tickets will be largely complaint-driven and handed out during the days by municipal bylaw officers and during the night by Halifax Regional Police if they feel like it.

The bylaw changes are currently scheduled to come into effect for October 1, allowing for a two-week adjustment period before cannabis becomes legal nationwide on October 17.

Council will discuss whether to puff or pass on these changes when they meet Tuesday at City Hall.