Ottawa | Ontario

The Water Pipes in Public Places and Workplaces Bylaw

This bylaw prohibits the use of waterpipes (also known as hookah) wherever smoking of tobacco is prohibited, i.e. in enclosed workplaces, enclosed public places, outdoor restaurant and bar patios, and at the Parkdale and Byward Market stands. Waterpipe use has been prohibited since 2012 on Ottawa municipal property, including parks, beaches, outdoor recreation fields, etc.

The bylaw was rolled out in three phases: an education phase for owners and employees of affected restaurants and bars, as well as the general public; a four-month warning phase starting December 1, 2016; and a charging phase starting April 3, 2017.

A public awareness campaign was developed for the Warning Phase which included a news release, social media, newspaper ads in post-secondary campus newspapers, cultural newspapers, on-line ads and digital and radio ads. In preparation for the charging phase, Ottawa Public Health (OPH) conducted educational visits to all 15 hookah establishments and discovered a new establishment in the process. Every owner received an information kit with owner obligations, FAQs and Server Cards. OPH also sent letters to festivals, Business Improvement Areas and the Ottawa Chapter of the Restaurant and Hotel/Motel Association.

OPH also developed a young adult hookah awareness campaign including a TruthAboutHookah/véritésurlehouka website, as well as using paid social media advertisements, on-line ads and print ads in campus newspapers and websites to increase awareness of the health risks associated with hookah use among the young adult population.

An application filed in Ontario Superior Court on March 31, 2017 claimes that Ottawa’s waterpipe bylaw is unconstitutional as well as being inconsistent with the city’s multiculturalism policies. The application states that smoking a waterpipe is “intimately connected to Middle Eastern and Arab culture, and is deeply rooted in tradition; and that the bylaw prohibits individuals and groups from gathering and taking part in the Middle Eastern cultural tradition and ritual of waterpipe smoking.”

The application cites sections 15 and 27 of the Canadian Charter of Rights and Freedoms: sections that address freedoms, discrimination and multiculturalism. The claimants allege that the bylaw is discriminatory on the basis of culture. The application seeks an injunction on the enforcement of the bylaw, pending a determination of the legal challenge.

In a court decision from August 2017, an injunction was denied and it was ruled that the city can keep enforcing its new hookah ban while waiting for the next hearing – scheduled for February 8, 2018. The court decided that the city’s interest in public health outweighed the financial concerns of hookah establishment owners and awarded it $15,761.69 to cover some of its legal costs associated with the failed injunction application.

In January 2018 the challenge was withdrawn with the applicant citing financial difficulties.

Products Included

Waterpipes

Definitions

“Charcoal” means a combustible substance whose primary purpose is to burn or heat a smoking product;

“Electronic cigarettes act” means the Electronic Cigarettes Act, 2015, S.O. 2015, c. 7, Sch. 3, as amended, and any regulation passed under it;

“Outdoor patio” means an outdoor area including but not limited to the area subject to a café seating or outdoor patio encroachment permit under Encroachment By-law 2013-446, as amended or any successor by-law, where the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry, or that is worked in or frequented by employees during the course of their employment, whether or not they are acting in the course of their employment at the time, and where food or drink is served or sold or offered for consumption, or that is part of or operated in conjunction with an area where food or drink is served or sold or offered;

“Smoking product” means any substance whose primary purpose is to be burned or heated to produce vapours, gases, or smoke, which may be inhaled, and shall include but is not limited to non-tobacco herbal shisha, and other plant material or oils intended for inhalation;

“Use”, with respect to a water pipe, includes the carrying of any lighted or heated water pipe as well as inhaling or exhaling vapour, smoke, or gas associated with or resulting from water pipe use;

“Water pipe” means a device, whether called a water pipe, hookah or any other name, that burns or heats a tobacco or non-tobacco substance or a combination thereof, with which the vapor, smoke or gases may pass through liquid prior to being inhaled, and excludes an electronic cigarette as defined under the electronic cigarettes act.

Places Smoking Prohibited

Beaches
Markets
Municipal Property
Outdoor Events
Parks
Patios - Restaurants and Bars
Playgrounds, which may include Splash Pads and Wading Pools
Sports and Recreational Fields and Facilities
Trails
Waterpipes (indoors)
Waterpipes (outdoors)

Policy Analysis

This is a leading edge bylaw because it prohibits the use of waterpipes wherever tobacco smoking is prohibited, both indoors and outdoors.

In Canada, the loudest opponents to smoke-free waterpipe bylaws are business people who have a financial stake in the issue, not religious or cultural organizations. Vancouver’s waterpipe bylaw faced a similar Charter challenge that was heard in BC Supreme Court in June 2015. The claimants in that case, two café owners, claimed among other things that the bylaw violated their fundamental freedoms of conscience and religion. They claimed that waterpipe smoking is an important cultural and religious activity in their community, and that the bylaw was an infringement on their religious rights and those of their Muslim and Middle Eastern patrons. The judge rejected their arguments.

This case is slightly different, in that the claimants are alleging discrimination based on culture.

Enforcement

A news item from October 19, 2017 reported surprise on the part of Ottawa’s bylaw department regarding how many establishments (9) continue to serve hookah, despite the ban that came into force on December 1st, 2016.

Some 70 charges have been laid so far, including both hookah lounge proprietors as well as patrons. The bylaw department is reportedly considering issuing more Ontario Provincial Offences Act Part 3 charges, which carry higher fines upon conviction, as well as suspending businesses licences.

Patrons can be fined $385 for smoking contrary to the City’s hookah bylaw.

Date Passed: August 31, 2016

Date in Force: December 1, 2016

Date Last Amended:

Leading Edge: Yes

Level of Government: Municipal

Smoke-free Ontario Act Status: Exceeds Smoke-free Ontario Act

Bylaw Under Development? No

Supporting Information

Please find contact information related to this bylaw, and links to supporting materials.

Contact

613-580-2400

Supporting Materials

Staff report to Council August 31, 2016

A consultation report and other supporting documents can be found at the bottom of the Record of Votes

 Public Service Announcement

Smoke-free Regulations 

1 December 2016 Announcement

#TruthAboutHookah: Real Facts about Hookah

Fact Sheet for Business Owners and Operators

 

 

 

 

 

 

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