Tuesday 8 March 1994

Tobacco Control Act, 1993, Bill 119, Mrs Grier / Loi de 1993 sur la réglementation de l'usage du tabac, projet de loi 119, Mme Grier


Chair / Président: Beer, Charles (York-Mackenzie L)

*Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)

*Carter, Jenny (Peterborough ND)

Cunningham, Dianne (London North/-Nord PC)

Hope, Randy R. (Chatham-Kent ND)

Martin, Tony (Sault Ste Marie ND)

*McGuinty, Dalton (Ottawa South/-Sud L)

*O'Connor, Larry (Durham-York ND)

*O'Neill, Yvonne (Ottawa-Rideau L)

Owens, Stephen (Scarborough Centre ND)

*Rizzo, Tony (Oakwood ND)

*Wilson, Jim (Simcoe West/-Ouest PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Abel, Donald (Wentworth North/-Nord ND) for Mr Martin

Caplan, Elinor (Oriole L) for Mr Beer

Haslam, Karen (Perth ND) for Mr Hope

Frankford, Robert (Scarborough East/-Est ND) for Mr Owens

Sterling, Norman W. (Carleton PC) for Mrs Cunningham

Also taking part / Autres participants et participantes:

Cunningham, Robert, legal counsel, National Campaign for Action on Tobacco

Ministry of Health:

Mitchell, Brenda, manager, tobacco strategy unit

O'Connor, Larry, parliamentary assistant to the minister

Williams, Frank, legal counsel

Clerk / Greffier: Arnott, Doug

Staff / Personnel: Filion, Sibylle, legislative counsel

The committee met at 1006 in room 151.


Consideration of Bill 119, An Act to prevent the Provision of Tobacco to Young Persons and to Regulate its Sale and Use by Others / Projet de loi 119, Loi visant à empêcher la fourniture de tabac aux jeunes et à en réglementer la vente et l'usage par les autres.

The Vice-Chair (Mr Ron Eddy): Good morning, ladies and gentlemen. The standing committee on social development, dealing with Bill 119, An Act to prevent the Provision of Tobacco to Young Persons and to Regulate its Sale and Use by Others, is now in session. We were dealing with section 5, and the next amendment is a motion proposed by the Liberals.

Interjection: I think Norm was first.

The Vice-Chair: We had stood the PC amendment down until today. I understand it will come up later. Is that right?

Mr Norman W. Sterling (Carleton): I thought we would deal with it now.

The Vice-Chair: Deal with it now? Fine. Mr Sterling.

Mr Sterling: For those who might be following the proceedings but weren't watching yesterday, section 5 of the bill, as it's now written, says:

"No person shall sell or offer to sell tobacco at retail or for subsequent sale at retail or distribute or offer to distribute it for that purpose unless,

"(a) the tobacco is packaged in accordance with the regulations; and

"(b) the package bears or contains a health warning and other health information in accordance with the regulations."

My concern over the section came from reading the explanatory notes as well. Section 5 in the explanatory note says:

"Tobacco sold to the consumer or retailer must be packaged in accordance with the regulations. The package is to bear or contain a health warning and other health information."

My amendment clearly points towards the fact that the Legislature is contemplating plain packaging. My concern over the existing section is that it is not clear enough, and the explanatory notes emphasize the fact that it is not clear enough.

My amendment says that no person shall sell or offer tobacco -- and I have put forward formally the amendment so I believe I can paraphrase at this time -- unless the tobacco is contained in a package that (a) bears no marking or words other than the marking or words under federal legislation or this act, in other words, you can control what the words are; (b) sets out the brand name of the tobacco in a standard script, so you can control even the type of printing that is on the cigarette package; (c) bears a health warning or other health information in accordance with the regulations; (d) is in a colour specified by regulation, in other words, it could all be of one uniform colour. The last one, (e), is to provide the government with any other regulatory requirements necessary to deal with packaging.

My amendment, I believe, clearly sets out that we are, under Bill 119, if it's amended this way, contemplating plain packaging for cigarettes in Ontario. In speaking to the motion, in addition to that, there are some other benefits we should talk about.

Number one is, I believe, that plain packaging will in fact have some bearing on consumption of cigarettes, particularly for young people. I think young people are attracted by the colours, the logos, the attractiveness of the overall package when purchasing this product.

Second, I think there is another benefit which will exist because we will be the first jurisdiction in Canada and I believe the first jurisdiction in perhaps all of the world -- I'm not aware of any other jurisdiction which requires plain packaging. We will be leaders in that regard if we take this step.

As long as we continue to be the only jurisdiction that does have plain packaging we will have the added benefit of being able to distinguish clearly between cigarettes which are legally sold in this province and those that are smuggled into this province and sold illegally. There's a twofold benefit here that while smuggling has dropped appreciably since the federal Liberal government led the way in dropping tobacco taxes, the future in terms of dealing with the smuggling problem, the enforcement against people who smuggle cigarettes, would be much easier if in fact we had plain packaging. In fact, if we went to plain packaging and other jurisdictions chose to follow the lead of Ontario, they of course could choose another colour of package in order to distinguish their cigarettes from another jurisdiction.

One of the things we should note is that, I think in fairness to people who are involved in this business, although I'm not overly empathetic to their position because of the product they're selling, this section, as you know, can be proclaimed under section 23 of this act at any time the government of the day chooses so to proclaim this section. It also would be subject, of course, to regulation that would be made by the government, so I would suspect that any government would act responsibly in implementing this legislation in order to give those who produce the product a fair amount of time to readjust to the new regulations that would be coming out so there would be some kind of fair notice.

By putting this in legislation rather than leaving it totally to the regulatory powers of the government, it cuts off from the tobacco industry, who have exhibited in the past a great propensity towards litigation when a government challenges them head on -- it puts them in a negative position in going to court and saying, "The Legislature really didn't contemplate under this section 5 that what we were talking about here was plain packaging." I believe it could be argued, perhaps successfully, that in section 5 as written the government's intent or the legislative intent was to put larger health warnings on it, different health information on it and that kind of thing.

I just don't want to, number one, invite that kind of litigation, although we will probably be faced with that kind of litigation in spite of whatever we might pass here, But number two is I think by adopting this amendment we are going to set a tremendous example to the people in Canada and North America to follow this lead towards plain packaging, and hopefully it will lead to a lot less consumption of this deadly product.

I look forward to hearing comments of the other parties, the members of this committee, and I'm quite willing to amend various parts of it to make it stronger, to make it better, to make it clearer, whatever is necessary in order to do that.

Mrs Elinor Caplan (Oriole): I'd like to begin my comments by saying that I'm very supportive of a national plain package initiative and I believe that's the way we should be going on this. While I listened very carefully and I know Mr Sterling's arguments are well thought through, it seems to me that on this issue, as on others on occasion which we would like to see Ontario move ahead of its neighbours and in his words "show leadership," in fact that just doesn't make common sense.

You can't build a wall around Ontario. The success of what Ontario is able to do is affected by what is going to happen in the province of Quebec and the province of Manitoba and the rest of this country, where we have free and open borders and I hope we always will.

We have a border with our neighbours to the south, and we know that, while on occasion it leaks like a sieve, it does have all of the enforcement measures of both customs services as well as those kinds of controls on immigration.

I think the intent of this amendment is one which all parties can support and I think we will see this one day, whether it will be exactly in this form or slightly different. Whether it will be enshrined in legislation or done by regulation remains to be seen, and I hope we will see it sooner as opposed to later.

I know that the provincial minister, Mrs Grier, has agreed to speak to and negotiate a national plain package strategy with all of the other provincial governments, and hopefully the federal government will also support this kind of initiative with a national as well as a federal cooperative measure.

Having said that, it seems to me that to proceed unilaterally in Ontario runs at cross purposes. I listened very carefully. When he suggested that this would allow us to identify those cigarettes which were illegal in Ontario because of the package, to me it sent up alarm bells. It sent up alarm bells because I've been trying to explain to people the kind of Ontario that I want to live in, and I believe that we should have optimum freedom for the individual.

The thought that somebody might buy a package of cigarettes in another province or outside the country and bring them into Ontario quite legally -- whether it's from another province or across the border they're here quite legally -- but because of Ontario's plain package provision would now be engaged in criminal activity because of the cigarette package in their pocket to me is ludicrous and ridiculous. I'm pleased to see that Mr Sterling is laughing as well.

Mr Sterling: I'm laughing at your arguments.

Mrs Caplan: I think that we have to attach a healthy dose of common sense to this kind of provision as we move forward to see the kind of tobacco strategy that will achieve the objectives we all share, which is particularly to see young people not start and older adults who have already started be assisted in quitting.


I don't think plain packaging would in any way be an initiative that Ontario could undertake on its own unilaterally with any success. It's because of that that I hope we will see an interprovincial and a national initiative fairly quickly which will achieve those goals and objectives, and it's because of that that I really think this is premature at this time, although I know there is a lot of support within my own caucus. I personally am very supportive of a plain packaging initiative, but I do think it's the sort of thing we have to do in concert with our partners in Confederation.

Mr Larry O'Connor (Durham-York): The member for Oriole has been a very able spokesperson at this point for some of what is happening with the current government. In fact the Minister of Health has stated that she is going to work together with all the provinces to deal with the packaging issue.

I guess we could talk about attitudes and responsibility and I think this is a responsible way so we don't have a patchwork-type process take place similar to what has happened with the smuggling issue. We've seen a patchwork approach by the government in Ottawa that didn't deal with each jurisdiction and try to help out. I think a responsible national process here is necessary.

Mr Sterling, if we were to have a vote on intention here, I think your intention would be upheld. I think committee members around the table want to see the direction move towards plain packaging. I'm not sure whether or not by limiting it through your amendment here we could cover all the elements that would be necessary.

I could use an example. We've seen those lighters -- they call them Bic lighters -- and then they sell sleeves for them. The next thing you know, when we talk about packaging in the tobacco industry, we could have a sleeve come off. What you had was plain packaging, and they can justifiably say, "When we sold it, it was in a plain package," and out it comes and it's not a plain package any more. There are many ways that I think, for all the intent that you want to put in there, it could fall apart.

I guess one of the difficulties in fact where this province is trying to consult with some of the people out there, for example, the Ontario Campaign for Action on Tobacco, our department has been talking to some of its lawyers to try to make sure we cover all bases so we don't do this in isolation so that if it comes to the point where you say we could end up in litigation, and I agree that's a huge potential, we have in place the very clear evidence that for all the social science reasons you spelled out that consumption could be affected by plain packaging -- I think through these committee hearings we all may agree with you at this point, but that may not be something we can get the courts to agree with. I think there needs to be some time allowed to develop that type of information. It needs to take place.

I guess what I'd like to do for some clarification maybe is ask our legal counsel here, Frank Williams, from the ministry. We'll give him a chance to have a career-enhancing statement here.

Mrs Caplan: Career-enhancing means you agree with the parliamentary assistant; career-limiting means you don't agree with the parliamentary assistant. Is that your definition?

Mr O'Connor: If you could take a look at clause 5(a) as it's written, does that not have the ability to allow us to move with the intention Mr Sterling has while maybe not limiting us to just what he's got covered?

Mr Frank Williams: A simple answer: yes.

Mr O'Connor: There's the answer.

Mrs Yvonne O'Neill (Ottawa-Rideau): I wouldn't give that answer if I was depending on my career enhancement. There must be something more complicated.

Mr O'Connor: I guess, for legal advice, we certainly got it short.

The Vice-Chair: Concise.

Mrs Karen Haslam (Perth): That's the shortest legal answer I think any of us have ever heard.

Mrs Caplan: I think he was thoroughly intimidated by career-enhancing and career-limiting.

The Vice-Chair: Mr O'Connor, continue, please.

Mr O'Connor: The point here is that I think we could end up limiting ourselves. For all the good intentions Mr Sterling has pointed out, and I think we've got almost unanimous support for your intention here, we could limit ourselves. The intention of what we'd like to do here and to have ourselves limited in this, if we ended up in a litigation situation, if we didn't have adequate social science evidence that would allow us to take this through the courts and come up with a successful conclusion, I think that we as legislators would be on the losing end of that as well as all those people who have come before us advocating for plain packaging.

Mr Sterling: Perhaps I could ask legal counsel a question as well. Do you see my amendment in any way limiting the ability of the government to bring in plain packaging?

Mr Williams: The problem, when you start listing all the different elements that you want to regulate with respect to a package, is that if you leave something out and you want to come along later on and add something that's not on that list, the courts tend to take the view that if you start listing, the specific overrides the general, to use sort of the common legal phrase.

What happens then is the court looks at the very narrow list that you have set out in the legislation and it says, "You've only covered size and you've only covered colour. You didn't cover lettering," or you didn't cover this. My fear is that if we start listing, we're liable to leave something out. I'd rather be general, which covers, in my view, everything. That gives you the ability to regulate any aspect of packaging that you want to regulate at any time you want to do it.

Mr Sterling: That argument, in fairness to legal counsel, goes so far, but you also have to express the intent of the Legislature as to what you're getting at in order to prevent the legislation from being attacked in terms of the extent of where those regulations go. So it's a fine balance between how far you go in terms of specifying what you're up to. You can't say in an act, for instance, you can regulate whatever you want to regulate, to take the point to the ridiculous.

Mr Williams: I agree with you, there's a fine balance and I guess, given my druthers, I'd rather do it in a general way than start limiting it. I can't give you a definitive answer to say yes, the courts will go one way or the other. I can't prognosticate what the courts would determine, I can only give you my best judgement as to how I think I would do it and I've given you that.

Mr Jim Wilson (Simcoe West): With respect to this latter point, I don't understand why, if an amendment is required to Mr Sterling's amendment, we couldn't simply make a statement that this is the minimum requirement with respect to plain packaging. Then you're not limiting yourselves, you're simply setting a floor rather than a ceiling. I think Mr Sterling's point is well taken, that both for the public and for the courts, the government's intention with respect to section 5 should be spelled out. We have an obligation to do that.

I'm stunned, actually, with respect to the comments from Mrs Caplan and Mr O'Connor. I wonder who actually now is in the pockets of the tobacco lobbyists. We saw the federal government cave in on the issue of taxes. We're now seeing Mr O'Connor make a number of what really are false arguments with respect to this issue that I'm sure in the past his party would not have made and did not make.

To deal with the comments made from the Liberal Party and a similar comment shared by Mr O'Connor about you can't build a wall around Ontario, it seems to me to be an argument of convenience that you've both pulled out of the bag of tricks this morning, because if you look at the rest of this legislation with respect to having the age -- the minimum age is at 19 in this legislation and in the new federal act is 18. The federal act does not ban pharmacies; only Ontario at this point is banning pharmacies. We also have the total ban in this act on vending machines, and the federal act does not have a total ban on the sale of tobacco products through vending machines.

I think it's quite clear that this act in several other areas goes beyond what is the national norm now and therefore it is a false argument and an argument of convenience to simply say you can't build a wall around Ontario with respect to plain packaging.

Mr O'Connor talked about social evidence and I think if there's one thing that I've learned through this process, it's that one of the very best things you could do is introduce plain packaging. I think the evidence is very compelling indeed in supporting the objective of this bill, which is to stop young people from starting to smoke.


Both in committee and in meetings with groups we have been presented with very strong evidence suggesting that if you can take the attractiveness out of the package, that would have a greater effect in fact, in my opinion and from the evidence I've seen, than the measures currently contemplated in Bill 119 with respect to age or removing it from pharmacies or vending machines. I think this would be finally some real piece of legislation in front of us that we shouldn't miss the opportunity to pass this morning.

I've been of the rather sceptical view with respect to Bill 119, since I read in the early newspaper reportings and media reportings about this bill, that this bill would bring in plain packaging. The government, at the time of those reportings, and the minister's press conference did nothing to quell those expectations from the public, so you have an expectation out there that plain packaging is coming with this legislation. You also have a number of other expectations out there that are not met with the bill in its current form.

You got a lot of praise from the public as leaders. Now Mr Sterling is giving you the opportunity and all members the opportunity to be true leaders on this issue. He's thought out the arguments with respect to proclamation of this section. You don't have to proclaim it at the same time as all other sections of the bill; you can work with the people who produce these tobacco products, but none the less your intention is extremely clear and would send a very strong signal to the rest of Canada, and indeed the world, that Ontario is prepared to move.

I think you'll find that other jurisdictions, rather than buck the trend, will thank you for your lead on this issue and will in fact follow suit. Ontario is the largest consumer area in the province and, if it made a move like this, I think you would find, like the tax issue, other provinces have to follow suit.

I don't see any downsides to this. In my own riding where a number of people smoke, including many people who are near and dear to me, like my parents, they're going to continue to smoke regardless of what the package looks like. For goodness' sake, many of them were smoking illegal cigarettes that had kind of funny packages anyway prior to the taxes being lowered. That's not the point. The point is that the evidence clearly shows that young people will not be attracted to this product if you bring in plain packaging or generic packaging.

I don't buy any of the arguments that the other two parties have conjured up. We've heard them all before. We're giving you an opportunity to show leadership. If we do this unanimously, then we will face what criticism might come from the industry, and we'll face it together.

We're giving you that opportunity and we're prepared to do that with you and to work with the government on this issue because we think it finally puts some teeth into this act. That has been our complaint all the way along. You've been quick to do other things that I don't really agree with, and particularly the pharmacy issue, because I don't think it will meet the objectives of the goal. I think it's more symbolic.

Here we're giving you an opportunity to do something that isn't symbolic. The evidence is compelling. I think any court that sees that evidence that I and Mr Sterling have seen with respect to this issue would side with the Legislature.

I don't buy a scapegoat this morning, asking legal counsel to get you out of some excuse, Mr O'Connor. Where there's a will, there's a way. Any arguments I've heard so far this morning indicate that no Legislature would ever be able to do this. That's crazy. If you want to take a few minutes and suggest some amendments or a partial redrafting, that's fine, but you can't have your cake and eat it too on this issue.

You've got a public expectation out there that you are indeed taking a leadership role on the issue of stopping young people from taking up the habit of smoking. Yet if you don't pass this, I think you fail that test.

Mr Dalton McGuinty (Ottawa South): I want to speak in support of this amendment. Here once again we're focused on what I believe should be the focus of the bill. We're talking about making it harder for the young people in the province of Ontario to start smoking in the first place. We're not talking about banning sales in any particular location. We're not talking about making it harder for old people to get their cigarettes or for the psychiatrically ill to get their cigarettes or whatever. We're back to basics. We're talking about kids.

I think if there's one thing that we all learned during the course of the hearings, it's that kids are attracted to packaging. As one woman put it in Sudbury, a cigarette package is an accessory, much in the same way as earrings might be, a belt, the latest jeans. It's something you have because you want to be seen with it. I think if we really want to put a dent in the number of kids who are starting to smoke, this type of provision goes hand in hand with and is complementary to a law which says you can't start smoking when you're young.

I recall doing reading for my own private member's bill which even showed that there was a study done in the United States where they offered smokers of Marlboro plain packages holding Marlboro cigarettes at a discount, or paying full price for the Marlboro cigarettes. The great majority of those smokers preferred the traditional package because they wanted to be seen with the darn package. So let's not underestimate the power of the packaging as a draw not only to smokers but, more important in our case, to young people starting to smoke in the first place.

The other thing I like about this amendment is that it's made in great part because it's anticipating legal consequences: If we had to move on this, how would the other side react? It's interesting to put this in distinction with the pharmacy issue, because there the government has obtained a legal opinion, but it's not prepared to share that with us.

The argument was made by my colleague and by the parliamentary assistant about how it would be better to move on a national scale to address this problem, and I agree. Ideally, that would certainly be the best way to go, but there are some issues, I think, which warrant our superseding that general principle. I feel very strongly about young people starting to smoke and the impact of the packaging in that dilemma.

I think there are times when a particular jurisdiction, whether it's a municipality or a province, can actually show leadership with respect to particular issues. It can free the logjam, so to speak. A number of the provinces, based on my research, I know would like to move ahead on this, are waiting for action at the federal level, would like to move out on their own, and they just don't have the wherewithal to do so.

Nova Scotia, for instance, was the first to come up with the new age limit for young smokers. That's something obviously that they could operate within their own particular jurisdiction, but again they showed leadership in that regard, and I expect we'll be seeing other provinces doing the same kind of thing right across the board shortly.

With respect to this amendment constituting a limit, legal counsel tells us it would constitute a limit. I think clause (e) of Mr Sterling's amendment leaves it open in that it says that the packaging requirements must comply with such other requirements as may be prescribed by regulation. I think that quite clearly leaves it open in terms of the kinds of other regulations you might want to put in place. It leaves it open-ended; that's the long and the short of it.

I don't see how Mr Sterling's section 5 and the government's section 5 as found in Bill 119 are mutually exclusive. If anything, Mr Sterling's is merely more expansive. I don't see it being restrictive in any way. You might make the argument that it's all there in the existing section 5 anyway, but given that we've had an opportunity to develop a good understanding of how strenuous an objection would be raised by tobacco manufacturers in this country, I think it's probably a safe means by which to ensure that we're laying down the necessary groundwork that will stand us in good stead before a court.


Mr O'Connor: I appreciate the opportunity to address this again. The important thing here is that the intention of the committee members is to support the intention that Mr Sterling has brought forward in this motion. I don't think there is anyone here who is comfortable, and I know the minister isn't comfortable, in waiting for the federal government to deal with it by itself. What we're saying, though, is it needs to be done in a national way, and the minister is working and in contact with other provincial governments right across the country trying to deal with it.

Again, I'm concerned about the limiting elements of this amendment as it's written, that somewhere down the road we may end up limiting ourselves through this. Mr Sterling has offered the suggestion that the way we could do this so that we don't tie up the whole legislation for ever and a day while this is in the courts is that it be proclaimed separately. That then raises another concern that I have.

I realize the Liberals have a motion that we'll be dealing with in a little while regarding package size. When we start talking about packaging, if that ability is left in the regulations section, in section 18, for all the intention that Mr Sterling wants to put in there, we can do that still, not to tie our hands or to limit ourselves in dealing with other issues and other elements that we might want to do as we try to deal with other packaging issues as might be.

If this is tied up, then we can't deal with that. We heard evidence about kiddie packs, for example, the minimum pack size, hoping that we would do something as a committee to change that. My concern is that as we hold this up and do not proclaim it while we wait for this evidence to mount and allow us to move forward, we actually then tie our hands and we can't deal with some of the other packaging elements of it.

I appreciate the intent and I think we're supportive of the intent, but I believe we can reach that through the provisions in section 18. Maybe we can take a look at what we have for section 18 and make a change there that would spell it out clearer. As Mr Sterling wants it stated a little bit more clearly what our intention is for the regulations, maybe we can spell out in the section that deals with regulations that we will deal with regulations around plain packaging.

Mr Sterling: I'd like to deal with some of the arguments here. I must say I'm extremely disappointed with the government's response to this bill as well as Mrs Caplan's response.

Number one, the national argument, this overall argument: I think the federal government has made its decision vis-à-vis plain packaging. They have said we're not going to have plain packaging in this country. That's basically what they've said at this time. They've made their regulations, they've made their deal with the tobacco industry that they're going to have larger warnings on the cigarette package, and I suspect that they're not going to deal with the issue again for a period of time. I don't know whether that's two years, five years or whatever. So I don't think we're going to get any leadership from the federal government on plain packaging.

The other part that I'm discouraged or disappointed with the government on is that we talk about the national issue. Health care is a provincial matter. We have to take care of the outcome of what happens when people smoke and when young people smoke. Ontario taxpayers have to pay for the results of this and also the social costs involved with the downsides of taking on tobacco. So we have a provincial matter to deal with.

There are countries that are much smaller than ours -- I'm given the example of Iceland, which has, I think, about 300,000 residents -- which have their own packaging. So the whole idea that packaging can't be designed for a small population is ridiculous. We have a population of 10 million people and we have, I understand, somewhere between 25% and 30% of those who are smokers. I'll tell you, the tobacco industry won't have any difficulty in changing its packaging to meet these requirements.

Did the government not learn anything from our federal Liberal government vis-à-vis the drop in the tobacco taxes? These guys decided unilaterally, without consultation with this province, that they were going to drop the tobacco tax, along with Quebec, notwithstanding what Ontario thought. It was amazing, the quickness with which that action was taken in dealing with the whole issue of smuggling and tobacco taxes.

Do you really believe, Mr O'Connor, that this federal government is going to have plain packaging? I don't believe it. I don't believe it's going to happen as long as Mr Chrétien and the present Liberal cabinet are there. It's not going to happen. So your choice as an NDP government in your last year of power, if you really believe that plain packaging is important to cut down the consumption of cigarettes, is to take leadership.

That's what the Progressive Conservative Party of Ontario is saying. Notwithstanding what our federal government -- we would prefer the federal government do this. Everybody would prefer the federal government do this so it would be uniform across this country. But you know, sometimes you've got to push them, as they pushed you on the cigarette tax issue.

I think it's time that this provincial government showed some real guts, not just talk on the street, Bob Rae slamming the federal government for lowering the tobacco tax. Now you have a chance to go ahead and show some real intestinal fortitude. Use the power you have in the Ontario Legislature to pass an amendment which is clear that plain packaging is coming in.

I'd also like to talk a little bit about the argument put forward by legal counsel. I'm glad to see that my colleague, and I guess the only lawyer in this committee other than myself, finds that the arguments put forward by legislative counsel are perhaps important but also may be grey in terms of which way you might pull on this kind of issue.

I wonder if the way section 5 is now written, where you do have a limitation on your general regulation -- section 5, as legal counsel has written it, as the government has written it, can be challenged just as easily as and perhaps more so than what I have put in my regulation, because in your own proposal you have a general power under clause (a) that tobacco is packaged in accordance with the regulations. That's your general power.

Now legal counsel have said you start to attack the general power when you put specifics in it. So what did you do in (b)? You put specifics in it. You said, "the package bears or contains a health warning or other health information in accordance with the regulations." So you have in your legislation which you've put forward a general clause and then you have one specific, and that's my concern. I think it's bad legislation the way it's written.

If you follow the arguments of legal counsel, you have one clause, you have 5(a), "the tobacco is packaged in accordance with the regulations." End of story; that's it. What (b) says to me, which is confirmed by the explanatory notes of this bill, is that this government's intent could be interpreted as strictly dealing with health information; nothing to do with plain packaging, nothing to do with the size of print, where the print is, what the colour of the package is, as is included in my resolution.


So I use the arguments which legislative counsel is putting to you as saying that your present section, as drafted, is much worse than the proposal that I've put forward. It has one single item which it specifies, and that is that you may make regulations dealing with health information. I'll tell you that will be the argument the tobacco industry will take you to court on if you pass this legislation as it is now. If you put in three or four sections, then a general section, they won't have nearly the argument that they will have under the present section.

Mrs O'Neill: I am going to be supporting Mr Sterling's amendment as well. I think that we have had a lot of witnessing and a lot of the witnessing has indicated the real contradiction we have in this province, and particularly in the country, with advertising. We have no advertising permitted, yet we know that advertising legally enters the country. We know and we've heard from several people, particularly the young people, that the package itself is the strongest advertisement because it re-enters and re-enters and re-enters the privacy of wherever we are.

The health-related associations that came before us I think to a person, and many of them with their own idea of what a package would look like, have brought plain packages. It's been one of the strongest presentations we've had and that's why I don't see how we can ignore it.

We've had something different in Ontario for a long time. I think for almost 10 years we've had the yellow strip which indicated whether or not tax has been paid. As far as I know, and I'm certainly willing to be corrected, that was unique to Ontario. It was a control mechanism. I think it worked in some case and in some cases it didn't.

We are always going to find that things are incomplete or, as I think Mrs Caplan said yesterday, there will be possibilities of litigation. There are many laws now that were bills that are in litigation; as we speak, in this province there are two that are pretty high-profile.

To have stated day after day by this government that, "We have looked at the litigation possibilities," I'm really having difficulty accepting this argument when the intent of this bill has been so well received and now the intent is being destroyed, in my mind, by a government that's mesmerized by litigation. I know this government has spent a lot of money on litigation, more than I would like to have seen spent. But this isn't the bill that I want to suddenly become mesmerized or protected by; I'm sorry. I think that the youth of this province deserve this amendment.

Mr O'Connor: You know, I sit here and I listen to Mr Sterling's arguments from the Progressive Conservative Party and I have to think back to exactly what's been happening from the federal government in Ottawa. I'm not going to talk about the transfer payments that they were not giving us when they were in Ottawa, when they cut that because they didn't care about health care for the people of Ontario. I mean, that's pretty common knowledge that they did that.

Another common part too of knowledge was this here --

Mr Jim Wilson: Transfer payments went up every year.

Mr O'Connor: Jake Epp, the federal Tory --

Mr Jim Wilson: Mr O'Connor, they went up every year.

Mr O'Connor: -- the Conservative Minister of Health went with and undermined their packaging legislation on advertising and came up with something that says it's okay to use it for promotional purposes. Well, excuse me, but we know where the Tories are at on this issue.

My concern is that we've heard on this committee time and time again evidence that states that they would like to see us moving on this. What I'm saying is, we don't want to lose that opportunity. Let's not lose that momentum. Let's not take away from parts of it, because what we do by limiting ourselves, putting it in here, is that for the research that's taken place -- he himself brought up the fact that there could be litigation on this, so why limit ourselves to this?

Then what happens for the intention -- I'm glad to see the Conservatives are coming around, that this is good legislation. We need to react to health issues, like when the college of pharmacy comes to us and wants us to move forward because it's a health issue and health care practitioners shouldn't be selling this. I'm glad to see that they're coming around that yes, this is a health issue and it's an important health issue -- 13,000 Ontarians dying every year from tobacco-related illness: Yes, it's a health issue.

But to not allow the research that's going on right now for the information that's needed for the social science studies that will allow us to proceed if we get forced into litigation, as being suggested, doesn't make sense to me. If we are going to move this forward, first of all, we should try to do it on a national level with all the provinces cooperative and as partners in this process. It's something that the federal governments haven't always done, but we'll drive it from the provincial level to make it a national strategy right across the country. If we can't pull that off, then the intention is here. It's pretty clear.

You will note some amendments to section 18. I think we need to have that power in section 18 for regulations so we can move it forward, so that if things are challenged we have at least the opportunity to change a regulation if necessary so that the intention of all of the good legislators who are on this committee and all of the evidence that we heard from people can be met. We limit ourselves when we tie it to just putting it in the legislation and not giving ourselves the authority to deal with it in a fashion that's going to make sure that it's as effective as it needs to be.

So for the arguments that we heard, yes, I agree that we heard some very compelling evidence. We heard evidence from right across the province saying that this is a health issue, it's an accessory, it's something that does help sell it. That's probably why Jake Epp decided that he should go with this sellout to the tobacco industry.

But let's make sure that we can deal with this in a fashion that's going to allow us to keep this as something that's going to stand the test of time. We don't want to put in something that's not going to stand the test of time. We want to make sure that we are as progressive as we possibly can be so that all members of the Legislature of the province of Ontario can be proud that we've actually done something that's going to stand the test of time and not have something that's going to tie our hands so that we can't do what's been requested of us as committee members from the people who made presentations right across the province. Let's not tie our hands. Let's make sure that we can move in the progressive fashion that we all want to move.

Mr Jim Wilson: I want to just first say that it is politically expedient at the provincial level to point fingers at the federal government, and Mr O'Connor, regardless of the stripe of the federal government, talks about transfer payments being cut. I will give him till 1 o'clock today to table before this committee the proof that transfer payments have been cut from the federal government. They are up each year. They have been capped.

Mr O'Connor: They've been capped.

Mr Sterling: You said they were cut.

Mr Jim Wilson: You said there's a cut, and you said it was an undeniable fact --

Mr O'Connor: It adds to the health care costs of the province of Ontario.

The Vice-Chair: Mr O'Connor, one speaker at a time.

Mr Jim Wilson: I'm getting tired of seeing it in the media, and I'm getting tired of hearing it from the government. They are not cut. They go up each year by several hundred millions of dollars year over year.

Mr O'Connor: The share in the cost isn't being met.

Mr Jim Wilson: You might make the argument under the federal Liberal government now with Mr Martin's budget that they've been frozen at their current funding levels, but that never occurred under a Conservative government in Ottawa. They went up hundreds of millions of dollars year over year over year. So let's just cut the crap.

Secondly, it detracts from the issue at hand. The issue at hand here is discouraging and stopping young people from starting to smoke. I frankly think it's hypocritical of you to simply say that is your intention and not put it in the legislation itself. I think that the people of Ontario are just tired of this type of politics.

Mr O'Connor: Tell me about the Tory Health ministers.

Mr Jim Wilson: They're tired of those picture politics you're holding up too, Mr O'Connor. I think they're tired of the whole bunch of us saying we have good intentions. You know the phrase about intentions.

The fact of the matter is that you have an opportunity here to strengthen this legislation, to actually meet the intentions and objectives of your own legislation, and we're willing to help you out in that process. I think you've taken the wrong attitude. The attitude Mr Sterling is putting forward is that we're here to help you with this legislation. Dragging in transfer payments just deters from the argument; it may be good politics. I wish in a moral way you would stop that sort of politics, because it's wrong. It's wrong to continue to put out falsehoods about this sort of stuff to the people of Ontario. I know it's expedient politics, but I thought we were moving into a new era of politics, and we'd better start responding to what the public wants or they will continue to be discouraged more and more about our political process. You have today the opportunity to restore faith in that political process by actually accepting an amendment that would put some teeth in this legislation.


I think, on a personal note, you should be ashamed that you're dragging up the arguments that have been used time and time again to thwart this type of progressive legislation, that would be progressive if Mr Sterling's amendment were accepted. Then we could truly have pride in Bill 119 and we could truly say to the people of Ontario and say to the youth of Ontario that Ontario took a leadership role, rather than the smoke and mirrors that's been portrayed to date by this government.

Mr Sterling: You see, what happens in terms of the arguments that are put back to me on this amendment is that on the one hand I get the argument that the legislation as written is better than the legislation that I'm proposing. I don't agree, and I think section 5 is flawed at this time as it's written in the legislation and I think it will lead to litigation.

Litigation will occur regardless of what section is in there. It's a matter of who's going to win in the end. The tobacco industry has just got too big a stake in this to not take us to court. So whether your section's in or my section's in, there's going to be a lawsuit once this happens. If Ontario takes the leadership in going to plain packaging, they're not just fighting Ontario; they're fighting North America, because they will realize that once it happens here, it's going to happen in other jurisdictions.

You put that argument on the one hand, and then Mr O'Connor turns around and talks about it being on a national level.

What is your position? Is your position for plain packaging or is it not? On the one hand, you're talking about this saying, "In fact we are for plain packaging," and on the other hand you're saying it should be done on a national basis. You can't have both arguments at the same time, because they conflict. They collide.

I really wish the government would start to work cooperatively on this legislation. I've been on this fight since December 1985 when I introduced my first private member's bill on this. That's nine years ago when I started this fight, long before any federal government started down the road in dealing with the tobacco issue in a serious manner.

I don't care which government does what. All I know is this: If people don't push, if they don't act as leaders, if they're not there pushing the extremities of this issue, then nothing happens, because the other side is so well financed, so well oiled, nothing happens.

You know what's going to happen here? If this very general section, section 5, passes, the tobacco lobby is going to be at your deputy minister's door day after day, because it can afford to be, at your assistant deputy minister's door, at Ruth Grier's door, at everybody's door in the Ministry of Health. They will put on a wonderful lobbying show in terms of why you can't just go as fast as you would like to go, why maybe we should do one thing this year and in another 10 years we should do something else.

If I were the Minister of Health, if I were Ruth Grier, I would say: "I want the legislation to rely on. I want to tell these lobbyists that the Legislature of Ontario has said clearly in its act that what we're doing is plain packaging." And when the lobbyists would come to me as Health minister, I would say to them, or my officials would have to say to them, or the bureaucrats would have to say to them: "Sorry, boys, lobbying's for naught. The Legislature has said clearly that there's going to be plain packaging in Ontario."

So let's get on with it. Let's get on with saving lives. Let's get on with turning young people off smoking. I'm really disappointed in the government's response to this amendment.

Mrs Haslam: I agree: I think we ought to get on with it. I am a firm believer in plain packaging; it's just that I don't want to tie our hands to lose another one. When you talk about lobbying, we all have been lobbied. We've been lobbied by the manufacturers of tobacco, we've been lobbied by the farmers, those of us in rural ridings, and we've stood our ground, like you stand your ground. I don't want to have us tie our hands so that we can't do what we really want to do, so that we put something in that ends up in the courts for a number of years and then we don't get what we want. I'd rather see us get what we want in an effective way.

Mr Sterling, we were just handed out an amendment. It says that a regulation made under clause (1)(d) may govern aspects of packaging including labelling, colouring, lettering, script, size of writing or markings and other decorative elements. It goes on to say some other things. I would rather us be clever in how we do this legislation and not bumble through it saying, "This is a grandstand and we're going to demand plain packaging," and then have to swallow it because we don't have the right wording in our legislation to back us in the courts.

Talk to some lawyers. Talk to the lawyers for the health community. Talk to the lawyers who have to deal with this and see if this is not a better way and gives us more power to do what we want. I'd rather see us do what we want. I'd rather see us do what we really want to do, and that is, plain packaging, bar none -- plain packaging. But I'd rather see us have something in place that will work. That's my concern, that we will put something in place that won't work, that will tie us, that will not allow us, through regulations, to put in place the plain packaging that we need.

We all know how backed up legislation gets. I would hate to see us have to find a spot where we have to go back into the legislation to change something. I'd rather see us put the opportunity in regulations so we can change the regulations and do what we have to do to be sure this works. That's where I'm coming from.

I agree we have to do something about plain packaging. I firmly believe that plain packaging is the way to go. I also believe the Minister of Health is talking, as Ms Caplan said, with other provinces so that we can do it on a stronger basis, on a national basis, where all provinces say: "Let's come to an agreement. Let's come to terms. Let's do this together," and not have one province say, "Well, we can't do that because we've tied ourselves into something that we are not going to have time to go back in and change."

Let's leave the minister room in the regulations, let's leave the minister room in her negotiations with other provinces, so that the end result is what we have in front of us, not grandstanding, not saying, "This is what we've done in this legislation, hurray, hurray." I'd rather take a long-term look at our long-term goals and give us the opportunity to reach those long-term goals in an effective way.

Mr O'Connor: The point here that needs to be made is that we heard from many people from the health community who said, exactly as Mr Sterling's amendment here says, "We feel that plain packaging will be effective in trying to keep our young people from taking up this deadly, addictive habit." The problem we have here is, whether it's done on a national level, and we hope that we can, or whether it's done on a provincial level, the evidence needs to be there. If this is going to go to litigation and is going to stand the test of time, then we have to have the evidence.

The health community is on side. They would rather us have the evidence and win this one. They would rather us have something that's going to be effective and something that's going to stand the test of time. It's not that anyone disagrees that plain packaging is an issue, but if we don't have the evidence that's necessary -- whether it's fought on a provincial level, whether it's fought on a national level, we are going to need the evidence that is going to show beyond a doubt that this is why it's effective and that it does have the effect that we're talking about.

We're convinced on this committee because we've certainly had a lot of people come to us and make strong presentations, but I think we would be turning our backs on all those people who came to us and made those presentations if we were to go out there and jump in with both feet and then have it not stand up in court. We would be turning our backs on all that's been presented to us. I wouldn't want for us to turn our backs on that.

I think there needs to be some time for the research to take place. That's why when we're dealing with this issue the discussion continues with the people from the health community. It continues with people like OCAT and its legal services people, because they themselves want to make sure that when we do proceed with this we are going to have something that's going to stand the test of time. Whether it's done on a national level or on a provincial level, we want to make sure that we're prepared so that we've got something that's going to stand the test of time for the health of those Canadians.


Mr Jim Wilson: I have just two short comments and I know Mr Sterling wants to make some comments.

It seems to me, just so the public understands, that the current debate is whether the government should be doing this in some way in section 18 without specifying that the true intention of this section of the bill would be to go towards plain packaging or whether it should be done in section 5 up front so that when people pick up this piece of legislation they know what the specific intention of the Legislature is with respect to plain packaging.

Unless I've totally flipped my lid, the heading of section 5, so the public realizes, is, "Packaging, Health Warnings and Signs." The side bar subtitle is called "Packaging requirements." Where in the world else in this bill would you put something to do with packaging except in the packaging section, which is section 5, Mr O'Connor? I can't make the point strongly enough.

Secondly, you talk about evidence. I just want to refer to the pharmacy issue. You don't have evidence, other than hearsay, that somehow the ban on selling tobacco products in pharmacies, not allowing pharmacies to sell a legal product, will reduce consumption. I assume your defence, as we discussed yesterday, is probably using the clause that says things can be justifiable in a free and democratic society. Sorry; I can't remember my constitutional law courses. We should have brought the charter with us. I assume you're using the all-encompassing argument to justify your ban at pharmacies. There's where you're going to have a real legal argument, because you don't have the evidence at all.

There is far more evidence, and very compelling evidence, in support of plain packaging. Lots of tests have been conducted among young people to prove that plain packaging does have an effect in ending the appeal of smoking, or wanting to take up smoking.

Those are my comments. I know Mr Sterling wants to add to that.

Mr Sterling: I think Ms Haslam has a good point. Because I see legal counsel in the audience -- I believe he worked closely with the health lobby on this issue -- Mr Rob Cunningham, I'd like to seek his advice as to what kind of clause would be best to put in here to indicate (1) the intention of plain packaging and (2) which clause would in fact not lead to an unsuccessful fight in the courts. I ask you, Mr Chairman, if perhaps we can have Mr Cunningham step up to the table and seek his advice at this point in time.

The Vice-Chair: What is the committee's wish in this regard? You've heard the request of Mr Sterling.

Mr Jim Wilson: Agreed.

Mr McGuinty: No objections.

The Vice-Chair: Please state your name and position, and proceed.

Mr Robert Cunningham: I've had a chance to confer with a colleague of mine who is not in the room right now. I've seen the proposed government amendment to section 18 and I've seen Mr Sterling's proposed amendment. In my view, if the final act contained either of those provisions, the act would have enabling authority for the cabinet to require plain packaging.

Mrs Caplan: Did I hear you say either was --

Mr Robert Cunningham: Yes. Now, Mr Sterling's amendment, if it was to be adopted and found in the act, would perhaps put greater pressure on cabinet to enact plain packaging because it specifies things early on in the bill with the Legislature wanting the cabinet to the move forward quickly. If it's contained in section 18, while the authority is still there, perhaps the Lieutenant Governor in Council would not act as quickly.

Mr O'Connor: I guess the importance here is that there has been money granted to take a look at this issue. I believe it's the Robert Wood Foundation that has actually given money to the Centre for Health Promotion to do some research on this issue. We end up tying our hands if we don't allow them to at least finish their studies and research so that we can do something that's going to stand the test of time. I think the key here is that if we limit ourselves to this, we end up with something that may not stand the test of time and then we end up losing. What we've done then is we've done a disservice to the health community, and I don't want to do a disservice to the health community.

Mrs O'Neill: I'd like to ask the lawyer who just presented his opinion. I taught grammar, as I mentioned yesterday, and I see quite a difference between section 18 and section 5 as proposed by Mr Sterling. One says "may" and one says "shall," and if I remember my teaching days, there's quite a difference between those two. You know, you intimated that there may be more pressure on the cabinet. I would suggest there's much more of a directive on the cabinet.

If I may also, at this moment, faxes, I'm sure, are coming into all of our offices. I think I'm getting about 25 faxes a day, even as we do clause-by-clause, which is most unusual. This bill has extremely high interest. Of two that I got either late yesterday or early this morning, one from the eastern Ontario health unit says, "We are very supportive of the many provisions of Bill 119 which affect our young people," and then says, "Support plain packaging." This particular group, and this happens to be a medical group, thinks that Bill 119 supports plain packaging, and it does, in a weird, distant sort of way.

However, the regional municipality of Ottawa-Carleton also sent me a fax this morning that states, "In order to help counter the effects of lower taxes, Bill 119 needs to be strengthened by specifying generic packaging in the legislation rather than through regulation."

People out in the community are very aware of what's going on here, and I really do think there's quite a bit of doubletalk. I don't know whether the lawyer wants to respond to my interpretation of "may" and "shall," but there's a great deal of difference from what the government has presented to us. It's really not much different than was originally presented, but it -- what should I say? -- becomes a little more specific what they're going to do. But I see here "and other decorative elements." What in heaven's name does that mean? We're getting into the information syndrome that we were in yesterday.

Mr Robert Cunningham: Yes, there is a difference between the words "may" and "shall," but in Mr Sterling's amendment it doesn't say that the cabinet "shall" require plain packaging, but if plain packaging is required, then everyone shall obey in terms of retailers and so on.

Mrs O'Neill: Right.

Mr Robert Cunningham: The same types of thing would apply with the current versions of section 5 and section 18: If cabinet requires plain packaging, then everyone shall obey it and not sell it and so on.

Mr McGuinty: Just to go back to the fax that my colleague received this morning, it seems to be at odds and maybe it's just because the folks in the Ottawa-Carleton health department haven't been fully briefed. I mean, why is it that they're telling us that we should be specifying generic packaging in the legislation rather than through regulations? What, in your opinion, is the best way to ensure that we can implement generic packaging, if necessary? Is it through Mr Sterling's motion or is it through the new government amendment that is going to amend section 18, which you had an opportunity to review?

Mr Robert Cunningham: First of all, the health community sees plain packaging as the most important thing that it could do, other than taxation, in terms of controlling tobacco use --

Mrs O'Neill: Right on.

Mr Robert Cunningham: -- particularly among young people. Right now, there is authority for cabinet to require plain packaging under either of the proposed amendments, if they were to find themselves in the current act.

There is another alternative. First of all, it's important to ensure that there be some regulatory flexibility. The tobacco industry is extremely creative and will have every loophole exploited to the extent that's possible. So at a minimum there must be a residuary opportunity to regulate things that you don't think of the first time around. They're always very creative. Another alternative that's not yet before you is you could require some minimum standards in terms of plain packaging right in the legislation in terms of the size of a provincial health warning or the size and the placement of brand names, and then everything else required by regulation. So you could have that alternative, which is not yet before the committee.


Mr McGuinty: Okay. I'm going to ask that question again. I appreciate all the information.

Mr Robert Cunningham: What you could do in the act to get as close as possible to plain packaging -- the best alternative would be to provide some minimum standards that would come into force in the act and some further provisions to enhance the plain packaging that could be prescribed by regulation.

Mr McGuinty: Okay. What we have on the table today is we've got Mr Sterling's motion and we're going to be dealing later on with the government's motion, which amends section 18. Which will serve us better?

Mr Robert Cunningham: The best alternative would be a third one that's not one of those two. It would be a modification of Mr Sterling's.

Mr Sterling: But, Rob, we don't have that choice because we don't know enough to do those things. I would have loved to do that in my motion, but quite frankly I don't know enough in terms of the size of print, the type of print, the size of the package. I don't buy cigarettes, so --

Mrs O'Neill: Maybe you could buy one package for this purpose.

Mr Sterling: No, I wouldn't even buy one for this purpose.

My amendment to section 5 was to try to be as specific as I possibly could, but let those who would look into the actual physical details of the packaging. We don't have that choice. We have a choice -- I don't want to put you between a rock and hard place in a way -- between my amendment or putting it in section 18. Basically, that's it.

Maybe legislative counsel can --

Mr McGuinty: Don't let him off the hook yet.

Mr Sterling: I'm not going to let him off the hook.

Mr Jim Wilson: He's not on the hook.

Mr Sterling: Well, I think you indicated that there would be a greater propensity for a cabinet to take section 5 seriously than section 18.

Mr Robert Cunningham: I did say that, yes.

Mr Sterling: So you're saying that mine is preferable in terms of having real action rather than the other?

Mr Robert Cunningham: From a political point of view, I would certainly think that it would, yes.

Mr Sterling: As a lawyer, I know enough not to ask too many questions when I don't know --

Mr McGuinty: You have to know when to stop.

Mr Sterling: That's right.

The Vice-Chair: Thank you, Mr Cunningham, for your help to the committee in answering questions.

Mr O'Connor: Mr Chair, I guess I've got a concern about process here at this point. I want to make sure that we have as full a consultation as we can. Some of that consultation will need to take place over the regulations, and there are some concerns about some areas, whether or not they're going to stand the test of time or what not.

What I'd like to do is ask our legal counsel then to take a look at what I've got proposed that we will be dealing with in section 18 and whether or not our section 18 is going to give us the ability to do things without tying up the other packaging elements that we may wish to deal with at the moment without having the opportunity for us to lose things because we don't have the information necessary and without having the opportunity for us to lose the plain packaging issue that we all here in this room are really concerned about because we don't have the evidence when this ends up before litigation, if that's the case, as it most likely will be.

So my question to legal counsel is, is it your opinion that we could end up losing other parts of this, and will it be tied up as we try to deal with it?

Mr Williams: With all due respect to my colleague -- I think to some extent we're all fighting the same battle in this committee; I'm here as legal counsel to the ministry, but to some extent I'm also counsel to this committee, to give it the best advice I can give as to how I would advise the ministry how to draft the particular sections of the bill -- my view is that Mr Sterling's amendments do not say the same thing as the amendment you have before you to section 18. I think section 18 is broader, it's more general and it gives us the authority we want should we be challenged by the tobacco manufacturers in court. I think it's probably fair to say we will be challenged by tobacco manufacturers in court.

My view is that the wording has to be very carefully crafted. We're in a committee. It's difficult, because we have a very short time frame to come up with words that are adequate to do what we think will do the job. In my view, section 5 as it's presently drafted by Mr Sterling's amendment doesn't quite get us there. My view is that the words we have in section 18, as you have before you, are better from our perspective to do what we want to do.

Mr Sterling: You're saying that with knowledge of my amendments to section 18 as well, are you? Are you reading those in conjunction?

Mr Williams: That's correct.

Mr Sterling: I have two sets of amendments, one to 5 and one to 18. Would you feel more comfortable if you were given more time to deal with the language?

Mr Williams: No. I think I've looked at what you've got, what I've heard from the various health groups as to what they're interested in seeing in the legislation, my instructions from the ministry, the wording that I've put forward and I've helped craft, and section 18 I think is sufficient to do the trick.

Mr Jim Wilson: I guess my concern is more of a political nature. I'm less concerned with the legal means to getting to plain packaging. That's why legal counsel can't really answer. We should stop deferring to legal counsel about the political question; that is, does the government today have the will and is it willing to commit totally to plain packaging? We've not had a direct answer on that. The attempt to deal with section 5 by Mr Sterling is an attempt, and Mr Cunningham confirmed it, that politically, if it's in section 5, we have the clear words of the government, words of the legislation, that tell us that cabinet won't sit on their hands and be vulnerable to the tobacco lobby, as we've seen the federal Liberal government more recently, but will actually move ahead with this.

I assume we're going into an election in the next 12 to 15 months or thereabouts. The tobacco lobby has a wonderful ability to muddy the water and tie things up, and if this bill is not passed with a very clear intention -- I'd even say, put dates in to move towards plain packaging. The government's been hung up on dates when it comes to putting some people out of business like pharmacies, yet it won't show the same determination and effort in doing something that could really help to meet the objectives of this bill.

That's the challenge. It's a political challenge. I don't think I would feel comfortable leaving this committee or passing this on third reading if I knew it was going to be strictly up to the cabinet, which at some unspecified time in the future might get around to doing something about plain packaging. I see that as no better situation than the current law in Ontario, which is no law essentially, dealing with plain packaging. If we're here to improve the law, to improve the plight of young people and to improve the health of the province, then let's put it up front in the legislation.

Mr McGuinty: I think we're getting into an area here where it's obviously complex. We're trying to anticipate the moves of another party. Mr Sterling has put forward an amendment. The government prefers to deal with that amendment through the regulations. In all frankness, I'm not sure which is better. What I'm going to do is simply put on the record that the government is going to have to assume responsibility for this. It has access to an army of experts who have addressed this issue. My concern is to ensure that the Ontario government has in its back pocket the ability to deal with any and all kinds of issues related to packaging.

I do not believe the Ontario government should be moving on plain packaging today. I don't think we've explored all of the opportunities yet at the federal level, but I want to have that ability in the event that when you'd use it -- and as I say, I don't have the time or the resources at my command to deal with this issue and I'm leaving it in your hands.


Mrs O'Neill: I'm having a lot of difficulty. I guess I'm having the same difficulties Mr Wilson is about political will because I've heard only two members of the government talk to this issue. I find that I have another fax here from Ottawa-Carleton Council on Smoking and Health which just conveniently reminded me that Mr Laughren, our Treasurer of this province, the day he announced that he had to do this despicable thing of lowering the tax, which many of us don't feel is a good move but some of us feel was inevitable, said that day that the next step had to be plain packaging. He's the Deputy Premier of this province.

So what are we having? We're having a government that is being extremely wishy-washy. Let's face it, folks, and I'm sorry to remind you, but you have flip-flopped on many decisions: Sunday shopping, and do I need to begin the list? Things that you say are very dear to you, you do not follow through with until you're really cornered. There's not much time left to be cornered on this issue. The mandate's coming to an end. Here again, this particular group says, "legislate plain cigarette packages in Bill 119." I will be supporting Mr Sterling's motion.

Mr Sterling: I want to make it clear to the committee that this amendment is not my drafting. I went to legislative counsel and I said, "This is what I want to achieve, and what I want to achieve is plain packaging." What I received back was an amendment to section 5 and to section 18.

So on the one hand, we have -- I don't like to put people in conflict -- one legislative counsel saying, "This is the way to do it," and another one saying: "This is not the way to do it; there's another way to do it. Let's do section 18 alone."

We hear evidence from people here that there will be more political pressure, it will be more up front to have it in section 5. Leave it at that. That's the way it is. Presumably both are written by skilled people in this area. Therefore, I would assume that both achieve ultimately the same end, if that's the argument of the government. But if one is preferable in a political sense, which is mine, let's choose it and do it.

The Vice-Chair: Mr O'Connor advises that Mr Williams will respond.

Mr O'Connor: I guess before I turn the total response over, though, the key here is that legal counsel working for the Ministry of Health have had the benefit of much consultation that legal counsel for government members and members of the Legislature have at their disposal. So, you're right, there are some parts of this that not everybody has a choice and we could make things political but that's not the thing here.

The point here is that we want to try to act on the wishes of what's been presented, on behalf of what the health community's presented, and we don't want to end up losing something and that the tobacco industry's the one that wins in this and not the people we're trying to worry about here as members of the Legislature and the health of the people of Ontario. I'd ask Frank Williams to comment a little bit further on the drafting.

Mr Williams: I don't have much to add to Mr O'Connor's comments. I think Mr Sterling's remembering a past life of mine when I was legislative counsel. I'm now counsel for the Ministry of Health. I think it's correct that -- I don't mean that in a negative way. We worked for a long time together in other venues.

But I think Mr O'Connor is correct in saying that legislative counsel -- certainly when I was at legislative counsel office, you look at things from strictly a drafting perspective. Now I'm with the ministry and I can look at it from not only a legislative counsel perspective but from some of the concerns that, as a government lawyer, I would have if I was potentially challenged by the tobacco industry. Some of those concerns have been taken into account in the draft that we've produced.

I can't go much beyond that for the reasons I stated yesterday with respect to legal opinions, but certainly some of the things that I've considered have taken into account possible challenges that we would have from the industry.

Mrs Haslam: You know, we've spent an hour and a half arguing over something we all agree on. We all agree on plain packaging and we think that is the way we should be moving.

Mrs O'Neill: That's not what the Premier is saying.

Mrs Haslam: I think we disagree on the type of wording that will get us there. So we have discussed for an hour and a half two separate entities that will get us to our goal. I think we should now make a decision and perhaps vote on it and go on to other aspects of the legislation that are just as important, if not more important. I think we've heard from many different sides of this story.

I would just like to say about Ms O'Neill's comments, I think the Treasurer was speaking very honestly. The fact that we had to lower those taxes is just reprehensible. I think that was the worst thing the Liberal federal government could have done to us as a province. I think we all are in agreement --

Interjection: They've done worse since then.

Mrs Haslam: Please, we all agree that we have to do something in this legislation to look after this issue, and I think we now have to make a decision. I would like to see us do that.

Mr Jim Wilson: I would disagree with respect to Ms Haslam's comments. I think this is the most important issue we could deal with in this legislation, and we wouldn't even be talking about it for the last hour and a half if Mr Sterling hadn't pushed the issue, nor would we see the government in a panic to amend parts of section 18 to try to look like you're committed to this.

Mrs Haslam: We're trying to do something together. You don't seem to understand that.

Mr Jim Wilson: What I haven't heard yet and where we disagree still is the fact that we do not have a firm commitment from this government to move on plain packaging.

Mr Sterling hasn't been coy or shy about it. He's put out a press release that says, and I'll quote from the press release: "`I want it crystal clear that the Legislature of Ontario is saying that plain packaging in our province is about to happen. We cannot trust the federal Liberals to act, as they have apparently been captured by the tobacco lobbyists,' said Sterling. `Plain packaging would have the added advantage of clearly distinguishing legally sold tobacco from smuggled cigarettes.'" It's clear where we stand on this issue.

What is not clear in this debate is where the other two parties stand on this very, very important issue --

Mrs Haslam: Yes, it's very clear. It's clear we like plain packaging.

Mr Jim Wilson: -- an issue that is the most important issue in this act, an issue that you've waffled on from the beginning to the end. It's time to put your words into action and tell us whether or not you're committed to plain packaging in this province, regardless of whether the federal government eventually comes around to its senses on this issue or not.


The Vice-Chair: Mr Wilson has the floor. Please continue.

Mr Jim Wilson: That is what is absolutely clear.

Mrs Haslam: I like to give him a shot of his own tactics.

Mr Jim Wilson: Fine. Fair game. It still doesn't deter me from saying what I want to say.

Mrs Haslam: It doesn't deter me either.

Mr Jim Wilson: I think that we need a commitment from this government. As humanly possible, we're going to do everything today to make sure you make that commitment and do not get away with waffling.

Mrs O'Neill is quite correct. I recall the article and I recall the Treasurer's response as he wiggled his way out of caving in to the cigarette tax issue. In an effort to do that, he got away with the press that day by saying: "We're going to move. Plain packaging's the answer to that." I don't think you can say one thing to get yourself out of tight situations in press scrums and then not come forward in an honest way in legislation to back up what you've been saying all along outside this room. So push comes to shove. It's right now and we want to know what your commitment is.


Mr Sterling: This issue of plain packaging, I think, is far more important than the combined effort of Bill 119 in terms of everything else it tries to do. I believe plain packaging would have a larger impact in terms of consumption of tobacco in this province than Bill 119 altogether. In fact, I'm absolutely convinced of this. I don't think this committee should mind devoting significant time of the clause-by-clause to deal with this issue.

One of the problems we're faced with here is that legal counsel is saying to us that there are limiting factors in what I'm putting forward, or that's the allegation of one side of it. I think it would do us well, Mr Chairman, to have over the lunch-hour the legal counsel review the government's amendment to section 18 and my amendment to section 18, which goes hand in hand with my section 5, and come back and tell us what are the limitations of my amendment. Legal counsel can't, I don't think, come in front of a committee and say, "Your amendment limits us but because this section may come into legal battle some time down the road, I'm not going to tell you what in fact those limitations are." I can't buy that as a legislator; I'm sorry. I think I have to know and if in fact there are significant limitations on what I'm putting forward I'll bow out, because I want plain packaging, but I think that quite frankly the legislation is written for a number of reasons. One is for lawyers but the more important one is for the people.

I'll tell you, if the section is written as it is under section 5 in terms of packaging requirements, I defy most lay people from picking up this act, turning to section 5 and seeing plain packaging in that. If they pick up the act and it was amended, as put forward by my particular amendment, people would have a clear idea what this government was about and I think that's why Mr Cunningham was giving us advice that we put a lot more pressure either on this government or subsequent governments to take real action in putting these regulations forward and putting plain packages on the shelves of our stores.

We're getting close to lunch-hour. I would really like to know what limitations the counsel are talking about in terms of the amendments I put forward, and I have said before I'm quite willing to move constructively in amending either my one to section 5 or section 18 in order to make it less limiting on the government, but I think it is much more preferable than the belated amendments of the government to section 18.

I suggest we adjourn for lunch at this time and come back at 2 o'clock, 1 o'clock, 1:30 or whatever time suits us, and we can hear then from legal counsel as to why my particular amendment is limiting.

I think it's more important than letting it go and being frustrated that this debate has been long.

Mrs Caplan: If it's appropriate, Mr Chair, I'd like to move that we put the question on this section, this amendment, at this time. I think we've heard everything legal counsel has to say, and in the interests of moving along with this debate and this discussion, before we adjourn for lunch I move that we vote.

The Vice-Chair: You've heard Mrs Caplan's motion. All in favour?

Mr Jim Wilson: Mr Chairman, I would like 20 minutes to retrieve Mr Sterling --

Mr O'Connor: He heard the motion.

Mr Jim Wilson: -- to vote on this motion, and it's our right to have a 20-minute recess.

The Vice-Chair: Is it possible we could shorten the recess?

Mr Jim Wilson: No.

Mr Donald Abel (Wentworth North): We know where you're coming from.

Mr O'Connor: The Tories are doing it again.

The Vice-Chair: It's a 20-minute recess. Is this a request for --

Mrs Caplan: Mr Chairman, would it be possible that we just adjourn now? I'll withdraw my motion and place it again at 2 o'clock.

Mrs Haslam: Nice try, Elinor. I agree that we've got to go ahead with this thing.

Mrs Caplan: Stop playing games with this. We don't want to play games with this.

Mrs Haslam: This is a show. This is ridiculous. All of us agree on where we want to go. We understand we want to get there. This is a shame.

Mrs O'Neill: Mr Chairman, before we adjourn, I had asked for a couple of things. We're getting very close to the end of this committee and I had asked for a list of the interventions that had been placed to assist the tobacco growers. I haven't received that yet. I think there maybe was more than one ministry involved.

The other thing we had asked for the last day, which I thought we all thought was important and now people are asking me about, was the letter that we were to write to the Minister of Labour regarding the workplace smoke. Are any of these things forthcoming? We have only one and a half days left.


Mrs O'Neill: Well, I don't know. Maybe I didn't see it. I haven't had it presented to me. Okay. I just wanted to bring those things to the attention of the committee because I don't want to let them be lost.

The Vice-Chair: Your requests are noted. Is it in order to adjourn until 2 o'clock?

Mrs O'Neill: I'll be asking again at the end of the day.

The Vice-Chair: Thank you for your participation. The committee now stands adjourned until 2 pm this afternoon.

The committee recessed from 1146 to 1409.

The Vice-Chair: Good afternoon, ladies and gentlemen. The social development committee is now in session, reviewing An Act to prevent the Provision of Tobacco to Young Persons and to Regulate its Sale and Use by Others, Bill 119. When we adjourned, we were discussing Mr Sterling's amendment to section 5 of the bill. Are there any further speakers regarding that particular amendment at this time? If not, we'll vote on Mr Sterling's motion.

Mr Sterling: A recorded vote, Mr Chairman.

The Vice-Chair: Recorded vote requested? Yes.

All those in favour of Mr Sterling's amendment to section 5?


McGuinty, O'Neill (Ottawa-Rideau), Sterling, Wilson (Simcoe West).

The Vice-Chair: Opposed?


Abel, Caplan, Carter, Frankford, Haslam, O'Connor.

The Vice-Chair: The motion is lost.

Liberal amendment to section 5 of the bill, Mr McGuinty?

Mr McGuinty: Yes.

Mrs Haslam: Could I have a clarification?

The Vice-Chair: Yes.

Mrs Haslam: I have in my hand two of Mr Sterling's amendments.

The Vice-Chair: Yes, there is a further written PC motion that I was going to go to next, because it was delivered this morning.

Mrs Haslam: So it is a viable amendment. That's what I'm asking.

The Vice-Chair: It's my understanding that it can be submitted at any time and it will come up next.

Mr McGuinty: Just so committee members are clear, I submitted an amended version which the clerk handed out earlier. It just contains a few handwritten words after the end of my original amendment.

The Vice-Chair: You'll read the amendment?

Mr McGuinty: I will read it right now.

I move that section 5 of the bill be amended by adding the following subsection:

"Same, cigarettes

"(2) No person shall sell or offer to sell cigarettes at retail or for subsequent sale at retail or distribute or offer to distribute it for that purpose unless the cigarettes are contained in packages of at least twenty cigarettes or such greater number as may be prescribed by regulation."

What I'm addressing here is this issue of kiddie packs, which are cigarette packages that contain fewer than 20 cigarettes. One of the things we learned during the course of our hearings was that there are three things which can induce kids, and again we're focusing on what I feel is an important advance being made on this bill in so far as it relates to children or young people. Kids are going to start smoking if the cigarettes are accessible, if the packages are attractive and if they don't cost too much. One of the ways that you can address the issue of cost is through the number of cigarettes contained in a package.

I understand that under the existing section 5 it could be argued that authority is in there now to specify the minimum number of cigarettes that would be found within a particular cigarette package, either through section 5 itself or in the regulations. But I would prefer, as a number of presenters have mentioned, to codify this in section 5 itself, specify the number of cigarettes that we're talking about and put everybody on notice. We're not leaving it to regulation. It certainly lends me greater comfort. I personally feel that it's very important that what we're effectively doing here is establishing a minimum price for cigarettes by stipulating the number to be found in a particular package.

As I say, I've left it open-ended so that we could, if the government decided it was appropriate in the circumstances, increase that number beyond 20. But I felt that 20, based on information that I'd had when I was researching my own private member's bill, seemed to be kind of the sawoff in terms of a traditional adult-sized package, if you will. Normally adults don't go in to buy their cigarettes in any quantity less than 20.

Mr O'Connor: I appreciate the amendment. I think in its original form I certainly would have had some difficulty with it because, as I've stated in this section, we've dealt with this by referring much to regulations. I don't think you've taken away from the intent of that with your change to your amendment. I think it's a shame that we saw the lowering of the price, because that's probably one of the realities that we heard originally, that the price was a rationale. Hopefully at some point in time we'll see a nationwide change that would see that reversed and then that price argument would certainly stand up.

The five-packs: We saw the five-pack as we were travelling on committee. Some of us had never actually seen that five-pack as presented and now realize that is a reality, and the 15-pack. It certainly is a concern. When a child can go and purchase a package of gum or a package of playing cards and the cigarettes are cheaper, then it certainly has an appeal. Next thing you know, you end up with the addiction after they've started taking up this habit without knowing how addictive it really is.

I support the move and appreciate the change that you've got to recognize the need for the regulation authority in section 18 as well.

Mr Jim Wilson: I just wanted to indicate our caucus's support for this amendment.

Mrs Haslam: Could I have a clarification? Has Mr McGuinty withdrawn the original motion or is he amending the original motion?

The Vice-Chair: He's placed this motion in place of the previous one. That's how I understand it. He's moved this one. Does that complete your question?

Mrs Haslam: Yes, I just wanted to be clear on that.

Mrs Caplan: I would very much like to speak in support of this particular amendment. I know that this is the sort of thing that can be effective just in Ontario, even if you don't have a national consensus, because it does deal specifically with an item for sale in Ontario retail outlets.

One of the other things that I know is happening -- and I think this amendment covers it, but it's a question for legal counsel -- is that there are some retailers who are actually opening up existing packages of cigarettes and selling them one at a time. I want to know if this would stop that practice.

Mr Williams: I believe it's actually illegal to do that now, but certainly this would enforce that message.

Mrs Caplan: It would reinforce that message?

Mr Williams: Yes.

Mrs Caplan: You mention that you think it might be illegal to do that now.

Mrs Haslam: That's correct.

Ms Brenda Mitchell: Under tax law.

Mrs Caplan: It's under tax law, but under this specific -- you see, I would think most people don't even know that.

Mr Williams: I think you're probably correct. I think provincially certainly there's nothing in place now, but this would double the effort, so to speak.

Mrs Caplan: So there's nothing in place in provincial law. It would be a federal tax thing that would make that. That's probably why nobody is aware of it. If it could be included in this legislation that it is illegal in the province of Ontario, that would reinforce the federal prohibition against breaking open existing packages and selling cigarettes one at a time. I think that would be a very important and progressive move and I hope that will be included in the legislation.

Mr Williams: There's also further authority in the regulations. If the government wants to govern packaging of cigars or other tobacco products, that can be done as well. That would be fine.

Mr Sterling: I find it interesting to find the rationalization why this can be provincial by Ms Caplan vis-à-vis the plain packaging. I find an interesting, almost specious, distinction between the two. Be that as it may, I support this amendment to the legislation.

Can you clarify for me, where do the jurisdictions cross over? The plain packaging kind of amendment, I would think, could clearly be argued was in the provinces's right to deal with the labelling issue in that regard, as a health care issue. When you're talking about the number of cigarettes in a package, I don't know who has the right to control how many bottles or how many cigarettes or how many things are in a package. Is there any distinction? It's more a question; I don't know.

Mr Williams: I've got to admit, I've never thought of it quite from that perspective. Certainly the provincial and the federal powers, as you know, depending on what's being regulated, tend to overlap. Provinces have the authority to deal with matters concerning health. The general authority for the federal government is peace, order and good government, which covers, in essence, everything.


There tend to be things in law that do overlap and the jurisdictions overlap, and sometimes it's very difficult to separate out the two. But as far as regulating how many items you can put in a package, I never thought it was necessarily either jurisdictions; neither one prevailed necessarily over the other, I wouldn't think.

Mr Sterling: It was just a matter of interest, that's all.

Ms Jenny Carter (Peterborough): I also would like to support this amendment for the obvious reason that it would make it harder for kids who hopefully don't have unlimited supplies of money to buy cigarettes. But as someone who has also taught grammar, shouldn't "it" in the third line be "them," just as a housekeeping change?

Mr McGuinty: I'll defer to my draftsperson.

The Vice-Chair: The draftsperson?

Mr McGuinty: Legislative counsel.

Ms Sibylle Filion: Yes, you're quite right. Thank you.

The Vice-Chair: Further discussion? If not, you've heard Mr McGuinty's motion to amend section 5.

All in favour of the motion? Opposed? Carried.

PC amendment to section 5, the one that was handed out today and is written out.

Mr Sterling: I'm not going to put that amendment forward, Mr Chairman.

The Vice-Chair: You're not presenting?

Mr Sterling: No.

The Vice-Chair: Thank you.

Section 5, as amended: Those in favour? Opposed? Carried.

Section 6: There's a government motion to amend section 6. Mr O'Connor.

Mr O'Connor: I move that section 6 of the bill be amended by adding, after "health warnings" in the third line "and other information." This would be consistent with the amendment made to clause 5(b).

Mrs O'Neill: Again I find this very difficult. I find that this morning, as late as this morning we heard the words, "This is a health issue, this is a health issue, this is a health issue," and even in the explanatory notes of the bill that same idea was there and all of a sudden now we get other information.

I'm sorry, I just don't see the logic to it. I don't think it's needed. There are other ways in which to get other information to people. We're dealing with this from a health aspect and all the presenters who came before us were coming before us with that kind of an intent. They didn't have any other ulterior motive, whether it was to curtain retail practices or manufacturing practices.

Mr McGuinty: I find it passing strange as well that we are thinking of incorporating other kinds of information in here and I would make the same arguments I made with respect to the previous government amendment which wanted to add other information as well. But I'll take the opportunity to ask the parliamentary assistant what it is that he had in mind. Why is it necessary to broaden the kinds of information beyond, I guess, health warnings? What is it he's got in mind?

Mr O'Connor: I appreciate the opportunity to offer some clarification. Of course this deals with the signage in the retail establishments and there may actually be a wish to put on things, for example, such as "Smoking is Addictive." Again we can say that's a health matter and someone could take issue with it. I think to try to be as inclusive as we possibly can, if we allow ourselves the possibility of putting other information on there, then people aren't going to be able to judge it just on that alone.

It's consistent with what we heard from people like the Ontario Campaign for Action on Tobacco, the Etobicoke Board of Health and the Non-Smokers' Rights Association. They came to us with this as a suggestion.

Mrs O'Neill: Well, I didn't hear them present it in the committee. Maybe they did but, boy, I sure didn't hear them. They would never have suggested removing the word "health."

Mr O'Connor: No. They're adding "other information." We're talking about signs.

Mrs O'Neill: I know you're adding "other information," but you're taking the emphasis off health. You can add "other health information," but no, it's got to be "other information." We'll find out what this means in due course.

Mrs Caplan: The question I would have of legal counsel is whether you would consider a message that says "Cigarettes can kill you" as being part of health information, or just to be helpful, what kinds of messages you could foresee wanting to include that would not necessarily be health messages.

Mr Williams: It's the old story, some things are black and white and others are grey and in between, but I'll try not to sound like a politician when I'm answering this. Certainly things that mention your health or the fact that you could die I would consider as health information. When you're getting into smoking cessation, I tend to think of it not as health information. I just want to make sure that, if we want to have signs in stores or signs on packages which are in that grey area or go beyond what the court might consider health information, we're covered. That's really my concern.

Mrs Caplan: Do I understand your intention in removing the word "health" is to allow you greater scope to include prevention and cessation --

Mr Williams: To broaden it.

Mrs Caplan: -- as well as explicit messages that say, "This can be injurious to your health"?

Mr Williams: If you want it to be redundant, I know legislative counsel --

Mrs Caplan: "Health and other information." I thought you were taking the word "health" out.

Mrs O'Neill: We took it out yesterday.

Mrs Caplan: So you're adding to it.

Mr Williams: If you were to be redundant -- legislative counsel will say this isn't necessary, and if I were still sitting as legislative counsel, I'd say the same thing -- you could say "health information and other information." I'd be content with that.

Mrs Caplan: I see. So this is just to be doubly sure?

Mr Williams: That's correct.

Mr O'Connor: Even in the arguments we had yesterday, one could argue whether or not it would be an appropriate place on the packaging element that we dealt with yesterday, "Cigarettes can cause forest fires," whether that would be an appropriate health message. There are so many parts that fall under grey areas.

It's not the intent that we'd do this on the signs in retail establishments. What there might be on that sign, though, could be like the example I used yesterday, "For those of you who are addicted" -- or however you word it -- "here's a 1-800 line that you can call," or "If you were to buy a pack a day, you could afford to buy a good GM car or something by the time you reach" --

Mrs Caplan: I think Mrs O'Neill may be concerned that what you're planning to do is insist they put Bob Rae's phone number on the cigarette package.

Mrs O'Neill: Smokey the Bear has done a good job preventing forest fires. We don't need it on packages. Jeez Murphy.

The Vice-Chair: Any further speakers? If not, you've heard Mr O'Connor's motion to amend section 6. All in favour? Opposed? Carried.

All in favour of section 6 as amended? Opposed? Carried.

Section 7: The first is a PC motion to amend subsection 7(2.1).

Mr Jim Wilson: I move that subsection 7(3) of the bill be amended by striking out "months" in the second line and substituting "years."

The effect of this amendment would be to give a three-year time frame for the phasing out of the sale of tobacco products through vending machines. We had some owners and vending machine operators appear before us, one in particular I remember from Orillia who services my area of the province in Simcoe county and beyond. Their sole product line was cigarette vending machines, a family-operated business.

I hope members will recall that the request was, if you're going to ban vending machines, if you're going to go beyond what the federal government has done, which is simply to restrict it to bars and licensed establishments, if you're going to go all the way and ban cigarette machines that sell tobacco products, they need as long a period of time as possible to adjust.


This particular company that I have in mind testified before this committee that indeed they had a great deal of their personal finances and the house and family members' houses tied up in this business. They pleaded with us to give them a three-year time frame, and I think it's only appropriate. The government's time frame is too short to be fair to these business people who, through no fault of their own, are currently selling a legal product through a legal means, and that is a vending machine.

If you're going to change the rules, I just plead that you make this phase-in of this new law as compassionate as possible for these people you are going to put out of business and give them an opportunity to convert their business into something else. That takes time. It takes time to make those arrangements with your bank. I think banks would look more favourably on this particular family business and others that appeared before this committee if they knew there was a three-year time limit or thereabouts to make the adjustment.

Mr O'Connor: I appreciate hearing this view from my colleague. You'll note, for committee members, that there is a government amendment that will be coming up. It's consistent with the time frame that would deal with other areas that would be subject to the legislation.

We did hear from individuals saying that we didn't want to be in a situation where the federal government implemented a total ban on vending machines right across the province, everywhere with the exception of licensed premises; that we want to go beyond that and we have to go beyond that, because these places aren't restrictive to young people. Young people can go in there. We heard from young people before this committee who said that they have that accessibility. That's why we need to move with this amendment.

After listening to the people who made the presentations, we've actually extended it beyond the three months and given them a time frame which they can work towards, not a date that's somewhere in the future and a year beyond but a date that's pretty clear, December 31, that I believe will give them something to work towards. I think it's been done in a spirit of fairness, as was requested by the people coming to this committee.

Mr Jim Wilson: The people coming to this committee who made that request don't run these operations right now. There must be some compassion for people who are in a legal business right now and you're changing the rules. December 31, which is your new amendment, is actually not much of an extension beyond the three months in the current section.

Given what I said yesterday, that your December 31 time line may sound great to you but it doesn't make a hell of a lot of sense to the business community, would the parliamentary assistant be willing to consider a compromise? Maybe three years, my amendment, is a bit too long for people to be comfortable with from the health promotion side. Would you consider two years if I were to amend my amendment?

Mr O'Connor: I see you've got two amendments here. One is for one year?

Mr Jim Wilson: The one we're dealing with right now is three years, replacing three months.

Mr O'Connor: Okay. I hear where he's coming from.

Mr Jim Wilson: But you don't care.

Mr O'Connor: Two governments ago in Ottawa they decided that there was going to be a total ban on vending machines everywhere but the exemption and never gave them a date to work towards or to lay out a business plan or to decide. The present government enacted that legislation, and it does cause some difficulties.

We're trying to put in an element of compassion that was asked of this committee and we're going to keep it consistent with the other parts of the bill. December 31 will give them an extended period of time. Knowing that the reason we have this here before us is that young people have access to these machines, whether they are ones that are in non-compliance to date with the federal legislation or ones that could be in compliance if they were where they are supposed to be, they are still accessible to young people, and the key here is that we're trying to deal with an issue and recognize the business needs of these people and put a little bit of fairness in there.

Mr McGuinty: I want to speak in favour of the motion. I think the good news here -- at least put this on the record at first -- is that the government has acknowledged that there's a problem telling these people who've been running these businesses, which are quite legitimate, that we are pulling the rug out from under their feet.

It's one thing to argue that the pharmacists sought intervention and were aware that there was something coming down the pipe, but no such argument can be made on behalf of the vending machine people. They did not understand at any time, until very recently, that they were going to be put out of business and they wouldn't be allowed at all to use those machines.

Let's recognize as well what it is we're talking about here, again keeping in mind the focus of the bill is to make it harder for young people in the province to start smoking. What we're talking about is extending the time period during which people can continue to operate, but they'll be governed by the existing federal legislation.

That federal legislation says you can't have a vending machine anywhere unless it's in what they call a beverage place, and if you look at the federal regulations, that says you've got to generate 80% of the money you make there through the sale of alcoholic beverages. You're talking about bars and taverns and things of that nature. You're not talking about family restaurants. If there are kids inside those bars and taverns, then that's not an issue we should be attempting to address through Bill 119. That's another problem which can be addressed in other ways.

Mr O'Connor: But they're legally there.

Mr McGuinty: Well, I just don't know many kids who go to bars and taverns.

Mr O'Connor: A licensed family restaurant, though, is --

Mr McGuinty: No, no, no. With respect, Mr Parliamentary Assistant, you're mistaken: 80% of the sales have to be generated by the sale of alcoholic beverages. So that rules out family restaurants. We're talking bars and taverns, and I just don't see many kids inside those bars and taverns.

I would like to see us not deal with vending machines at all and just allow the federal regulations to be in place. It removes them from hotel lobbies. It removes them from all those kinds of places where they're going to be in an unsupervised location and just simply confines them to bars and taverns.

However, the government is bent on phasing them out completely. The good news is that you've acknowledged it's going to be too harsh to do it in three months. I think that economically it would be much more humane to allow these people to have a much greater time frame to do that, and three years is hardly extremist, again keeping in mind that during that period of time, kids will not be inside -- at least they shouldn't be inside -- bars and taverns.

The Vice-Chair: Thank you. Mr Wilson.

Mr Jim Wilson: Oh, Mr Wilson?

The Vice-Chair: Yes. I had your name down. Do you want to go now?

Mr Jim Wilson: Yes. I think Mr Sterling wants to go first, though.

Mr Sterling: You know, I don't understand the government on this one, and I agree with Mr McGuinty on it, in that earlier we heard the parliamentary assistant say, "We're not going to do plain packaging now because we want a national consensus on this." The federal government has taken steps to deal with vending machines. They've limited vending machines for the sale of cigarettes to basically bars and grills where 80% of their sales are in spirits.

On the one hand, Mr Parliamentary Assistant, you're saying you want a national consensus. Surely to God, the idea of protecting young children, young people, who cannot be in these bars and grills until they're 19, the same age as in this act in terms of sales -- what is your objection to the federal regulation on this?

You want national consensus on the one hand. That's your excuse for not doing anything here and taking leadership on the matter right now, next week, on plain packaging. Yet we have a national consensus, effectively, by the federal government saying it's going to ban cigarette vending machines in most places. What's your problem?


Mr O'Connor: When the federal government was drafting its legislation it did take a look at Ontario as an exception in this case because our licensed premises are open to children. A family restaurant is licensed premises.

Mr Sterling: But it's been pointed out that a family restaurant would not qualify under the federal regulation. So don't mislead the committee that way.

Mr O'Connor: I wouldn't want Mr Sterling to mislead anyone either in this. In Ontario they aren't licensed separately, so don't make that argument, because it doesn't work. What we've got here is something that was pointed out to the committee, that they're not licensed separately under the liquor licence board here in the province of Ontario. So these premises have the ability for people to go in there who are under the age of 19, and that is a conundrum that the federal government faced. I'm sure they were well aware that we would have to be dealing with that ourselves here.

The health communities came before this committee and pointed out that it's a real problem. It's a situation that sets us apart from the rest of the country. I think that the point here is that we are an exception and it's time that we did move forward on this issue. We are different than other jurisdictions in the Confederation of Canada.

Mr Sterling: I have a second question for the parliamentary assistant. I'm quite willing to accept a December 31 close-off date if he's willing to show his generosity, or the generosity of his government, which is going to throw these people out of business, by accepting my amendment to compensate these people for their machines, which they have purchased with the mortgages of their homes. Are you willing to support the amendment which I'm putting forward to fairly compensate these small business people for the amount of money that they've put out for these machines?

You want to cut them off. It's like throwing a person out of his mortgaged home or all of his assets. You want to cut them off on December 31. Out of the big heart of your government you want to extend it from three months. "We're not going to throw you out of your house and home in three months. We're going to throw you out of your house and home on December 31." Boy, that's big-hearted.

I will agree with you: Throw them out in three months, but will you compensate them for their investment, their life savings that they've put into this legal business until you're cutting it off now? Will you compensate them? Will you accept my amendment?

Mr O'Connor: It certainly is interesting to hear that come forward as an amendment from the Conservative Party. When I talked about the federal legislation in dealing with this issue because it's an issue that the health community brought forward as an access point for young people to these machines, when the federal Conservative government of the day was drafting its legislation, knowing full well that when it put in place a ban right across the country, everywhere but licensed premises, it didn't talk about a compensation package. When the government of the day proclaimed that legislation it put some ads in the newspapers but it never talked about a compensation package.

Here's an opportunity, when we see the opposition members come and say, "Let's just spend a little bit more money because it's the right thing to do." We're coming up with something better than what Ottawa's done. We've given them a date. We've given them something to plan towards. We've given them a date where they can see that they are going to have to shut down their business.

The fact is that the Conservative government never had that date for them. The Liberal government didn't and it took out ads after the fact. The hearings are taking place. We heard from people. People came forward to this committee asking for some extra time and we're giving them some extra time.

Mr Sterling: Listen, the federal Conservative government got two seats in the last federal election. I'm not following their lead, Mr Parliamentary Assistant. You're talking to a guy who's fought for controls in terms of dealing with tobacco for the last eight years. I want fairness for the people of Ontario when we change the rules.

I'm not talking about the federal Conservatives, whatever those fat cats were, in your terms. I'm talking about the poor devils who've invested their life savings in this legal business and you're going to confiscate them. You're going to put them out of business. We are going to put them out of business. We are collectively going to put them out of business. I'm talking about fairness, equity.

When somebody's fired from their job, they get severance pay, they go on unemployment. These people don't. When they lose their business, they lose all. Will you compensate these people when you take away their business, when there's no longer any use for their machines? Will you compensate them? I've put forward an amendment, Mr Parliamentary Assistant. Do you have compassion for these people? Will they be compensated by our government, fairly compensated? Will they be?

The Vice-Chair: Do you wish to respond?

Mr O'Connor: I responded to the case. The fact of the matter is, we're giving them something far greater than other jurisdictions have given them. We're giving them a date to plan towards. We're giving them a date that they can see. It's December 31, 1994. They've asked for an extension in time and they've been given that extension in time. We haven't seen people at other levels who have been dealing with this issue suggesting compensation.

Mr Sterling: Nobody's banned them before, sir. They haven't banned them at the federal level. They have not banned them at the federal level.

Mr O'Connor: A total ban.

Mr Sterling: They have not.

Mr O'Connor: Except for --

Mr Sterling: Except for --

Mr Jim Wilson: Which was acceptable to the industry. It was negotiated with the industry.

The Vice-Chair: One speaker at a time. Did you finish your response?

Mr O'Connor: Yes.

Mr Jim Wilson: That was the most heartless response I have ever heard from a government parliamentary assistant. Honest to God, my blood is boiling over here. You're going to put people out of business. You're not willing to consider -- they asked for three things from this committee and you won't budge on any of them.

They wanted more time than was being considered, either in the original bill or by your December 31 date. They agreed that: "Okay, if you're going to put us out of business, at least compensate us. That would be the fair and humane thing to do because you're unilaterally changing the rules and we're selling a legal product by a legal means now."

Otherwise, you're saying retroactively, "They're crooks," and you're out to confiscate their goods and not compensate for it. It's certainly morally wrong; there's got to be something in the law to make that wrong, that governments could come in and take away your livelihood and your house and everything you've put on the line just by a simple wave of the pen. That's sick, that's absolutely sick.

The federal government did not do that. They negotiated with the industry. You had witnesses here saying, "Actually, they sat down with us and we agreed with them that vending machines that sell tobacco products should be in bars and taverns." That's what they did. That was their third option.

Now I have an amendment to do that, to move it into licensed establishments and I am assuming, because you have spoken against it, that you're not going to accept that. What are you going to do for vending machine operators?

Mr O'Connor: The fact here is, let's take a look at maybe a jurisdiction. In this country, Canada, Nova Scotia, you know, part of the Confederation, went with a ban in all public places of vending machines and they never had a compensation package in there. We heard from people coming from that industry who said, "We need to have some time," and so we're going to extend that time to December 31 of this year, most likely more than doubling the time that they had. We've listened; we've been far more compassionate than what we've seen in other jurisdictions --

Mr Sterling: You're not going to throw them out of their homes until it's cold in the winter.

Mr O'Connor: -- where the total ban, with their exception, put them completely out of business.

Mr Sterling: The sum total of your compassion towards these people is that you're not going to drive them out of business, drive them out of their homes, drive them out of their lifelong investment in three months. You're going to do it for the new year, on December 31. Is that the extent of your compassion and consideration for these small businesses?

What have you got against small business people? What have you got against people who invest their life savings and go out there and try to make it on their own? What have you got against them?

Mr O'Connor: I guess this is where we end up with a little bit of rhetoric. What would the Conservative Party have against small businesses when it implements things like free trade? What would they have against small businesses when they go with high dollar policies, high interest rate policies, for extended periods of time? What do you have against small business? We had people come to the committee; they asked for some more time and we've giving them some more time.


Mr Jim Wilson: On that note, are you really giving them more time? The way this section is worded, you have no idea at this point when this section will come into effect. You don't know when this bill's going to pass. Three months may turn out to be more time than your December 31 arbitrarily chosen date, because you think it's a nice, neat date.

Mr O'Connor: Unless the opposition filibusters and holds this up for some reason and doesn't allow us to have it proclaimed in the spring session.

Mr Sterling: You're giving us more and more reason.

Mr Jim Wilson: You're giving us more and more reason to be ticked off at you about this legislation. I want you to answer the question. I don't want to hear any more comments about what other jurisdictions are doing. I want to know why your government is so against small business in this province. Why? Why? Why? Answer that question before we go any further. Why no compassion at all for these people?


Mr Jim Wilson: This is a business, this particular one.

Mr O'Connor: We've seen far more compassion for small business from this government. We've seen this government actually roll back taxes for small business people. We've seen far more compassion for small business from this government than we have in many years from other governments.

Mr Sterling: That's why they're all leaving.

Mr Jim Wilson: Oh, they really believe that. I get that on the street all the time.

Mr O'Connor: People came to this committee asking for some compassion, asking for an extended period of time so that they had an opportunity to lay out a business plan that would allow them to move on. Other jurisdictions never had the same compassion to lay down a date.

The Tory government in Ottawa didn't lay down a date. When it was enacted by the government of the day in Ottawa, it didn't say a date. They proclaimed it, and the people who represent these small businesses thought they had till July 1, thought they had a little bit of time to go. That's not the case. They never had that opportunity. Next thing you know, after it was proclaimed, the ads show up in a newspaper: It's time to get them out.

What we're doing here is we're actually giving them a date, something that they can plan around so that these small business people have something to plan around. I think that's far more generous than what we've seen from some Conservative governments.

The Vice-Chair: Any further speakers? If not, you've heard Mr Wilson's motion to amend subsection 7(3). All in favour of the amendment?

Mr Jim Wilson: Could I have a recorded vote?

The Vice-Chair: A recorded vote.


Sterling, Wilson (Simcoe West).

The Vice-Chair: Opposed?


Abel, Caplan, Carter, Frankford, Haslam, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Motion lost.

Mr Wilson, you have a second motion?

Mr Jim Wilson: I move that section 7 be amended by adding the following subsection:

"Exception, licensed establishments

"(2.1) Despite subsection (1), a person may permit a vending machine for selling or dispensing tobacco to be in premises to which a liquor sales licence under the Liquor Licence Act applies."

This is another attempt to show some understanding to the vending machine industry. The federal act did limit vending machines that dispense tobacco products to liquor establishments. While the argument is made that in Ontario the effect of the federal law and the effect of this amendment would be that licensed family restaurants would still be able to have cigarette vending machines, the fact of the matter is, I think, the very fact that we give these people a licence to distribute a controlled product like tobacco means we should also trust them to supervise the vending machine, and we certainly could make regulatory authority for that. I know that other jurisdictions have done that, including the federal government.

Again, we've seen this government. There's no compassion for these people, like the family business in Orillia that will go out of business, along with every penny they've ever saved. A number of the family members and relatives and friends are employees of that business. They just don't care. They really just don't care. We hear Mr Sterling's amendment for compensation. They won't allow a reasonable period of time so that these people can get their business affairs and family affairs in order.

I'm hoping they'll accept this amendment so that, like the federal government which came up with an agreement with the vending machine operators that was acceptable, this government would not look for cheap political hits by trying to outdo the federal act by saying, "We're going to ban vending machines totally" -- we heard about national consensus before -- but move them and restrict them to simply licensed establishments.

Mr O'Connor: The government won't be supporting this. In fact, if we take a look at this motion that's before us, it's even more open-ended than the federal government's legislation. This is exactly the reason I was saying that family licensed restaurants are open to young people to have the access to go in and purchase the cigarettes. This is actually far more open than even the government in Ottawa had intended. For that reason, trying to deal with the access by minors, the government won't be supporting this.

Mr Jim Wilson: Again, I asked legislative counsel to give me an amendment that would conform with the federal act, and this is what they came up with. It was the opinion of legislative counsel at that time that this did conform to the federal act and was not more open. I am quite willing to introduce any amendments the parliamentary assistant might suggest -- I'm willing to stand it down if he's willing to be reasonable about it -- that would give him a greater comfort level and his party a greater comfort level with this amendment if your only problem seems to be that it goes beyond the intent of the federal act.

Mr O'Connor: The point is that this doesn't even meet with the bare minimums of the intent of the federal act. We heard people come to this committee and make presentations that stated that their concern is that a family restaurant, which is a licensed premises under the Liquor Licence Act, would then have access. This doesn't even go as far as the intention of the federal legislation. The fact is that what we're trying to deal with here is the access by minors. For those reasons, I can't support this amendment, though I realize its intent.

Mr Jim Wilson: Let me just finish commenting on that, though. You're in a family restaurant. There are lots of adults around. There are liquor servers, and there's usually a bartender or someone who actually is in charge of upholding the Liquor Licence Act that's granted to that premises. You've got more control there. I thought the real problem was, for instance, when we were at the hotel in London, Ontario, where there was a vending machine at the end of the hallway with nobody around; it was next to the washrooms. I agree that's a problem.

Why can't we put this into controlled premises? That's what this does, because you'll get the control you want. You'll get the control while allowing vending machine operators to stay in business for a while and allowing people who like to smoke in a bar to have access, those who are legally able to do so under this law. I don't see any problem with this.

I thought we had testimony that a very small percentage of cigarette sales are going through vending machines now and that what your government should be doing, which we agree with, is just restricting that access to a sensible level, which is to move it into licensed establishments, like the federal act.

Mr O'Connor: The difficulty we have is that the federal government, in its wish to contain the sales to the more restrictive of licensed premises -- we don't have that more restrictive designation in the province, so we don't have a way of going in there and saying which is the more restrictive and which isn't. Family restaurants are licensed under the Liquor Licence Act, so we have some difficulty there.

To clarify a little further with some legal opinion, I ask our legal counsel, Frank Williams, to continue a little and explain some of the differences we do have and the difficulties with the Liquor Licence Act.


Mr Williams: Perhaps I can put a historic perspective on this just to give you an understanding of why the federal legislation is crafted the way it is and why we have the problem in Ontario that we do.

Before I think 1988 or 1989, the Liquor Licence Act in Ontario licensed bars, taverns -- there were different designations of licensed premises. For certain of those licensed premises, persons under the age of majority were not allowed into those premises. When the act was amended in the late 1980s, the act was changed to talk about licensed premises in a general way.

There were no designations of bars or taverns or public houses, another common designation.

Before 1989, part of the requirement under the Liquor Licence Act regulations at that time was that to get that type of designation you had to have a certain ratio of liquor to food sales. We don't have that any more in Ontario, so it's a very big difficulty in how you would differentiate, even in Ontario, what a tavern or a bar is, using the definitions in the federal statute.

The problem we have, basically, is with that all licensed premises in Ontario, other than a handful, according to my understanding, anybody can go into those premises. They can't be served liquor if they're under 19, but they can go into those premises. There is a handful of premises, I've been told by the Liquor Licence Board of Ontario, where there have been problems of sales to young persons, and they have a restrictive clause in the licence whereby they can't even admit young people to those premises. I've been led to believe there is a handful of those premises in the province.

The problem is that it's not a just matter of family restaurants. Young people can go into what we would think of in the old days as bars and taverns, public houses.

Mr Sterling: When we're making these laws dealing with smoking, you always have to check back on whether the political rhetoric becomes greater than what you're doing in the end. I see us penalizing a small group of people who have invested, in some cases, their life savings in buying these vending machines and setting them up in various places.

While what legislative counsel has said may be true, according to the federal regulation, as Mr McGuinty has shown it to me, it is clear that you can only have these vending machines if 80% of the gross sales are in spirits. If the government wants to put in an amendment to this bill and say it's up to the owner of that particular establishment to show that 80% of its sales are in spirits in order to have a vending machine, fine and dandy. If he wants to go further and restrict young people from going into that particular venue, fine and dandy.

I don't think many children go into bars where 80% of the sales are spirits. Sure, children go into the Swiss Chalet or family restaurants where a small percentage of the gross would be alcohol sales, and that's probably only some of those restaurants where they have alcohol. But we're not talking about that here. We're talking about bars where cigarettes could be sold this way. I don't think that's an unreasonable compromise when we're talking about the other side of the issue. The other side of the issue is, do we throw these people completely out of business? This government has indicated that when it's going to throw them out of business, it's not going to compensate them or deal with the redundant machines these people are going to be left with.

You've got to balance rights in here and you've got to think about, how much of a danger is it that a package of cigarettes is going to be sold in one of these kinds of bars to an underage person? I think the risk is minimal, very, very low, if at all. When you weigh that against the ability of a young person to obtain tobacco by other methods, the risk of getting it through a vending machine in these kinds of places is much lower than that a young person could get it off the street by asking a friend or an adult to go in and buy the cigarettes for them. I think the risk is much greater on the other part, getting somebody else to go in and buy them for them. I think that's going to happen regardless of the laws we make here in Ontario.

This government is being really heavy-handed. If I were one of these people who owned and had my life savings in this, I'd say the intent of the government is mean-spirited and it's to throw me out of business. That's the way I would view it. You've got to deal with that. These people are Ontario citizens.

I thought governments had to act reasonably in this regard. You wouldn't dream of saying to workers, if somebody goes bankrupt and goes out of business, "You're not entitled to any benefits." You wouldn't do that. You wouldn't say, "All the employer has to do is give an eight-month notice and then you're out of work, no benefits, no severance pay." You wouldn't do that, would you, Mr O'Connor?

Mr O'Connor: If we're responding to hypothetical questions, I could throw out another hypothetical question: Are you suggesting that we create a new department within --

Mr Sterling: You're the government, Mr O'Connor. You're defending this legislation.

Mr O'Connor: Are we about to create another department within the Ontario Liquor Licence Board so it can differentiate and give separate licences, so we can duplicate what we have in licensing through the Liquor Licence Act to comply with this? The key here is that we heard presentations come to this committee, and we've got 13,000 people in the province who die prematurely every year from tobacco-related illnesses. That represents about 100 people in a riding every year who are dying from tobacco-related illnesses.

Mr Sterling: You're going to take it out on vending operators. It's the vending machine operators' fault.

Mr O'Connor: Do we turn around and ignore the evidence presented to us?

Are we suggesting at this point that we create more bureaucracy to further regulate small businesses? I don't think we need to further regulate small businesses. What we need to do is lay out a date, give them a time to plan towards and go forward with that, not create more departments within the government to go and put in further restrictions for people through liquor licensing changes. I don't think that would be a responsible way of doing it, and I don't think the way the federal government is doing it is responsible. They said, "Vending machines are banned right across the country whenever we decide to proclaim the act, with the exception of these licensed premises." We're giving them a date, and they came to us asking for an extension in time and we're giving them an extension in time.

Mr McGuinty: I can't support this particular Conservative motion for a couple of reasons. Number one, it's in conflict with the federal legislation. I understand that wasn't my colleague's intent, but I see it as being in conflict with existing federal legislation.

The other problem, having canvassed this issue with people in the business, is that I don't feel they can adequately deal with access of young people to cigarette vending machines in places other than bars or taverns. The best amendment, and I would have moved it myself had I felt there was a chance of it meeting with some success, would be to simply remove vending machines entirely from the ambit of Bill 119, because they are presently regulated by federal legislation which confines them to bars, taverns or other similar beverage rooms, to quote from the regulations.

It's important to keep in mind as well that there's another requirement in here. Under the federal regulations, it says: "The person in charge must be able to directly monitor the vending machine during normal operating hours." Second, "A vending machine has to be situated at a distance of not more than five metres from the innermost part of any entrance to the designated area." They have gone to some lengths, and I would submit those are very reasonable lengths, to restrict access by young people to cigarette vending machines.


Remember again, the focus of the bill, and the area in which we always have consensus, is to make it harder for young people to start smoking. Whenever we stray from that, we get into hot water, we get into trouble.

Mr Sterling makes a good point. The risk element associated with kids getting cigarettes from bars or taverns is minimal, absolutely minimal, and I think the only thing we are going to succeed in doing is alienating a group of people unnecessarily who will be ticked off with big government intruding into their business affairs. I think they are all prepared to buy into this argument that kids are getting cigarettes from vending machines and are prepared to give up that part of the business that's not found in bars and taverns. I recall, when we had a group of young people here, two of them saying they got their cigarettes inside a bar. The risk element is so minimal that it simply doesn't warrant us going ahead and saying cigarette vending machines will be banned outright in the province.

The other argument, of course, and somebody made it earlier, is that if we're going to proceed with plain packaging, the ideal is that rather than on an ad hoc basis, we'd like to be able to do that on a national level. Well, the feds have already done it with respect to vending machines.

Mr O'Connor: Nova Scotia went further.

Mr McGuinty: Nova Scotia may have gone further, but we're not in Nova Scotia; we're in Ontario. I think the feds have done all that can reasonably be done to eliminate access by young people to vending machines in the province and across the country.

Mrs Haslam: I'd like to comment on a couple of the things that have been brought forward, the talk about access to bars. I know for a fact that there are underage people who get into the bars. They may not be served liquor but they do get in and they do go with friends, and if they're caught and they're not given liquor, they still have access to that vending machine. They may not be 12, but there are 16-year-olds who do get into those licensed facilities with friends or with an older person, and as a result of being within that facility they would have access to the vending machines.

When you say "minimal," it may be minimal but it is not impossible. I think we should err on the side of young people and say we should not have them available. I don't care if it's one person or two persons --

Mr Sterling: Even if it throws 10 people out of business and they lose their --

Mr O'Connor: Thirty thousand lives.

Mrs Haslam: I don't care if it's one person or two persons. If we can limit the access --

Mr Sterling: So that's worth it, eh?

Mrs Haslam: If we could actually limit the access of cigarettes to young people, that's what we should be looking at. And that's what this is about: limiting access to cigarettes by young people. They do come into contact with those vending machines.

Mr Sterling: You are a mean-spirited bunch.

The Vice-Chair: Please, one speaker at a time. Mrs Haslam has the floor.

Mrs Haslam: I'm concerned about compensation programs for businesses. What would happen if, because of the limit on moose tags, we had a person who works in a camp come in and say, "Because of that, my business is suffering and I'm demanding a compensation package." We would open the doors to many compensation packages, and at a time when your leader is saying, "Don't spend extra money." Mean-spirited? I would call him mean-spirited when he says: "Don't spend extra money. We should cut back on lots of programs." And you come here and say we should put out more money for a particular area, and we just don't have the money to put that kind of compensation package in place.

We have the leader of your party saying cutbacks, that we should slash more, not open up new projects, not open up new programs: "Don't put new money out there in the community, don't put new money into the social net, don't put any new spending in place," and you're here saying, "We want you to put more money into this particular issue."

When you say mean-spirited, in other jurisdictions where this was brought into place, the federal government wasn't looked upon as being mean-spirited. They were doing a job which we all have to do now. We should do our job now and get on with looking at this particular piece of legislation, looking at protection for our young people. That's what it's about.

Mr Jim Wilson: We've got to get rid of this mythology that somehow the federal government has brought in a total ban. They haven't. We were told in this committee by vending machine operators, who I trust know their business better than anybody else in this room, that it was acceptable to them that the federal act restricts their machines to bars and taverns, licensed establishments like that, because that's where the business is. It's a convenience factor for those customers who like to have a cigarette with their drink at those establishments.

In fact, we were told it was not worth their while to put it into family restaurants. One person defied us to find a number of locations in the province. He said it was insignificant. If you wanted them moved out of family restaurants, there was no complaint from any of the witnesses about that. They didn't have any problem with that at all. They said it's not profitable to put them in there anyway, and fine. The federal government went through all these arguments with the industry and that's why they came up with what they did.

I want to ask legislative counsel two questions. When you go to a bar here in Toronto or anywhere else, if you go to a club, for example, your ID is checked at the door. Why do they do that, and is that unconstitutional? Are they not allowed to do that or not supposed to be doing that? It's always checked at the door at the clubs in Toronto here -- that's why there are huge lineups -- and that's before you're served a drink at all. I want to know why that's done, and if it's unconstitutional, I guess they'd better stop doing it. By the sound of it here, that shouldn't be done, with some of the arguments made earlier that there's no control in these establishments. You have to show picture ID, which is required by law, the age of majority card.

The intent of my legislation is to not close the doors on vending machines totally. It's to move it into the licensed establishments. If that were the case in Ontario, if we didn't close the door totally, would not the federal act then supersede this act? I can see if we do a complete prohibition in Ontario the federal act is null, but if we leave the door open a bit, would not the federal act then be the law of the land?

Ms Filion: I'm afraid, Mr Wilson, I'm not in a very good position to answer your questions. I'm here as counsel to answer any questions relating to the drafting. I'm not an expert on constitutional matters and I'm not an expert on the federal legislation either, so I'm afraid I can't answer your questions.

Mr Jim Wilson: Perhaps Mr Williams could take a stab at it.

Mr Williams: I must admit I'm not a constitutional expert either, but to the best of my knowledge -- I assume your question is, is it constitutional to ask somebody for ID?

Mr Jim Wilson: From the discussion we had, there is restricted access to bars in Ontario. You can't get into a club in Toronto unless you show you're 19 years of age or over. How are they doing that if there's no law?

Mr Williams: No, no. I think you're mixing -- when you're asked for ID when you're going --


Mr Jim Wilson: Not for clubs, not for the vast majority of them. I'm just wondering how they get away with that if there's no requirement to do that. These people aren't drinking; they're being asked for their ID as they line up.

Mr Williams: I'm going to answer your question. The question is, I assume, why are you asked for ID? I think you're asked for ID so that the owner of the establishment knows whether they can serve you liquor, but you're still permitted access to that premises despite the fact that --

Mr Jim Wilson: No, you're not. The Metro police charge you if you have people in those premises --

Mr Williams: I beg to differ with you. The Liquor Licence Act does not restrict entrance to a licensed premises to somebody who's under 19 years of age. You can enter the premises, but you can't drink on those premises.

Mr Jim Wilson: But that's not the practice. They refuse entrance.

Mr Williams: You asked me my opinion, and you asked me what the law is, and that's what the law is.

Mr Jim Wilson: So they're doing it, but they have no law to back them up. So the next time I get complaints from my constituents that they couldn't get into one, I'll say, "You have an absolute right to be in that premises."


Mr Williams: As I said earlier, there are, as I understand it, approximately a half a dozen licensed premises that have terms and conditions attached to their licence whereby they're not allowed to permit young persons under the age of 19 into those premises because in the past they have been charged with serving to minors, but the majority is --

Mr Jim Wilson: But the rule for nightclubs in Toronto and in my riding, in the hotel in Collingwood, the one in Alliston, is to ask for ID at the door.

Mrs Caplan: They maybe need one of those for the restricted licence.

Mr Jim Wilson: They can't all be restricted. He says there are only half a dozen in the province. So there's no law for this.

Mr Williams: Let's not confuse the fact that a young person may or may not get into a type of premises, for example, where there is nudity. That might be a municipal bylaw that restricts that.

Mr Jim Wilson: There's nothing to do with nudity at the Big Bop or RPM or the bars in Collingwood or all the ones in my riding. This is a standard practice.


Mr Jim Wilson: You people get with it. How the heck do you know what's going on in the province if you don't go out once in a while, for goodness' sake.

Mrs Haslam: Get with it, Jim. There are 16-year-olds in the bars. They just can't be served.

Mr Jim Wilson: So basically they have no legal means of doing this. They're just doing it as a matter of policy for their clubs.

Mr Williams: As I say, I don't know what the restrictions are because of municipal bylaws, but certainly under the Liquor Licence Act there's no restriction.

Mr Jim Wilson: What about the question about the federal legislation?

Mr Williams: I can't comment on that. I'm not an expert on the federal legislation.

Mr Jim Wilson: Can we get an answer to that? That would be important, because the parliamentary assistant's premise is that this isn't consistent with the federal act. This to me leaves the door open for the federal act to take effect in Ontario.

Mr O'Connor: Are you suggesting that we put in a dual licensing system so we can put in a licensing system that complies with the intent of the federal legislation? We're talking about creating another licensing system for those licensed establishments.

Mr Jim Wilson: You've got a federal law that the people of Canada right across this country are entitled to be ruled under, and you are nullifying that law for no particularly great reason, as far as I can tell. Canadian citizens have a right to be served under Canadian law of the Canadian Parliament. You'd better have a darned good reason for nullifying that law. I'm trying to leave the door open so that the law of this country can be applied equally across the country --

Mr O'Connor: We know you're trying to leave the door open. That's what the health community was telling you.

Mr Jim Wilson: -- so the people of Ontario have access to the law of this country so that you socialist nuts aren't running amok. I think it's a good federal law, and the people of this province --

Mrs Haslam: You'd rather have fascists running it?

Mr Jim Wilson: -- are entitled to be citizens under that law and not under your social experimentation all the time.

Mrs Haslam: Or fascist laws.

Mr Jim Wilson: You said it, not me.

Mr O'Connor: The difficulty we have here, one of these areas where we run into differences of opinion, is that I don't think the government is ready to move forward with a separate licensing system that would allow us to comply with the federal legislation. The only practical way I could see of identifying establishments from what we have under the Liquor Licence Act right now would be to set up a new licensing system that would comply with the federal regulations.

What we have here is something that's a response to the people from many parts of the province who came before us and said that given that Ontario is the exception when it comes to liquor licensing, given that young people have the legal ability to go into these licensed premises, they also have the ability to put their coins into the vending machine without that vending machine saying, "Excuse me, but are you 19 years of age?" That's what it comes down to. The vending machine doesn't have that ability, and we know this is another source for young people to get this tobacco product. We've got 13,000 people in the province dying every year from tobacco-related illnesses, and we need to move forward. Let's recognize that this is an access point young people have, and that's why people made that presentation to us.

Mr McGuinty: To go back for a moment to Mr Wilson's query, which I think was very legitimate, about the law in the province with respect to young people gaining access to bars and taverns, it's my understanding that people who operate these premises, as a matter of policy -- at least some of them; I'm not sure how widespread the practice is -- for purposes of their own protection, rather than having their waiters or waitresses ask prior to serving a patron each time, screen them at the door. Their policy is: "If you're not above the age, you're not getting in, period. I don't want to have to deal with you inside and have to worry about whether I'm serving people who are under age."

It would be very helpful to know how many bars and taverns have that kind of policy in place. Certainly in Ottawa and Hull, I believe that to be the practice. Perhaps in smaller communities where there are not as many people going to these places and on a busy night it's only one third full or something, they're not going to be that selective, but in busy places like Ottawa and Hull certainly that's the practice.

The other problem I wanted to remind the committee members about was one that was raised by a couple of presenters, I believe. What we're telling the people who run these establishments now is that they're going to get into the cigarette sales business. They don't want to be in the cigarette sales business, but if they don't sell cigarettes over the counter now, they feel they're not going to be able to hang on to their clientele.

We've got a lot of people in this province who have grown up, unfortunately, with cigarettes. When they go out for a drink after working all week, paying their taxes, perhaps changing a few diapers and cutting the grass and reading the paper along the way, doing those things that people normally do, they want to have a cigarette with their drink. Now, that's not the kind of activity I condone or encourage or that I would engage in myself, but it's not illegal. We have allowed it to go on and it will go on for many, many years to come.

What we're telling these people in those establishments, particularly the smaller ones, where they're not going to sell cigarettes, is, "If you run out of cigarettes that night, go elsewhere," if they're not going to sell them there at the bar. You know, it's not unreasonable, it's not unforeseeable that you might have somebody going elsewhere after drinking in order to get cigarettes because, as we know, they have an addiction. They have an actual, real, physical craving for a nicotine hit and they're going to want to get that. It's just another example, if you follow this through, of the kinds of problems you get into, and I think it's all for naught.

Mr O'Connor: I appreciate what he's saying. He's made some interesting points. The most compelling argument he's given me is the fact that there are some premises where they don't want to take that chance of being in a situation where they may be selling to a minor. They don't put something where they walk by and you have to put a little mark on a chalkboard as you go by that, "Yep, I'm 19." They actually have a person ask them whether they're 19. The vending machine doesn't have the capability of having that physical contact to ask the person whether they're 19.

I would suggest with regard to the argument he's using that it's good business practice people have to ask people whether they are 19 years of age. The same rationale could be used that the vending machine doesn't have that ability to ask a person. The difficulty we have would be creating a full new department within the liquor licence board to deal with a separate licensing element for those who want to have the vending machines in these establishments. I think it would be irresponsible to create more government at a time when I'm not getting too many calls saying, "Let's create some more government."

There are some problems here and obviously there are some differences of opinion, as we've heard on many different issues. For us to walk away from what is a difficult issue -- and no doubt when the other government was making its legislation, it probably looked at Ontario and asked: "How do we deal with it in Ontario? They are the exception. They don't have separate licensing for bars and taverns." They've put it at the point where now we have to make a decision about whether we are going to change the entire liquor licence board or whether we should make the move that we are that will eliminate an access point for young people to have cigarettes without having the interaction of a person to find out whether they're old enough to purchase the cigarettes. It's a conundrum.


Mr Sterling: If the people of Ontario saw the way this government is acting in dealing with this -- you know, if this group were put up against a group of vending machines, I think the vending machines would win. There's more logic to a vending machine. You put a quarter in and you get something out and it's fair with you as to the bargain. With this group, you put your quarter in and the government collects it before it hits the bottom of the pot, and confiscates it.

Mr Jim Wilson: You get nothing for your taxes but a bunch of nonsense.

The Vice-Chair: Any other speaker? If not, you've heard Mr Wilson's motion to amend subsection 7(2.1). All in favour of the amendment? Opposed? The motion is lost.

The next is a PC motion to amend subsection 7(2.2).

Mr Sterling: I move that section 7 of the bill be amended by adding the following subsection:


"(2.2) If, as a result of the operation of subsection (1), a person must remove a machine for the selling or dispensing of tobacco from a place the person owns or occupies, the Ministry of Health shall pay to that person an amount equal to the fair market value of the machine on the day before the day this section comes into force less any amount received by the person from the sale of the machine."

The Vice-Chair: I rule the motion out of order pursuant to standing order 56.

Mr Sterling: I respectfully request, Mr Chairman, that we have the unanimous consent of the committee, the government members of the committee, to consider this motion notwithstanding that.

The Vice-Chair: I would like to read standing order 56 so everyone is familiar with what it says. "Any bill, resolution, motion or address, the passage of which would impose a tax or specifically direct the allocation of public funds, shall not be passed by the House unless recommended by a message from the Lieutenant Governor, and shall be proposed only by a minister of the crown."

Mr Sterling: Surely Mr O'Connor represents the minister.

Mr Jim Wilson: We've been told that.

Mr O'Connor: Sorry, Mr Sterling. I'm not a minister of the crown.

Mr Sterling: So what are you doing here? You're representing the minister, are you not?

Mr O'Connor: I'm parliamentary assistant to the Minister of Health and part of my role is to be here to represent her, but it doesn't make me a minister of the crown. On occasion I've heard my colleague the Vice-Chair here called Speaker, but it doesn't make him the Speaker.

The Vice-Chair: Not yet.

The next motion is a Liberal amendment regarding subsection 7(3).

Mr McGuinty: I'll be very brief on this one, Mr Chair. We've canvassed all the arguments. I'll start by reading it.

I move that subsection 7(3) of the bill be struck out and the following substituted:

"Temporary exception

"(3) Subsection (1) does not apply until the day that is two years after the day this section comes into force."

We're trying to deal with the issue of vending machines once again, and extend the period before which the ban would take effect to two years from the date it comes into force. The government amendment is going to provide for the ban to come into effect at the end of this calendar year. We thought two years was appropriate, for all the arguments already made, specifically because it's just a more humane and, I feel, civilized way to allow these people to adjust to a government bringing the hammer down on them.

Mrs O'Neill: I'd like to speak in support of this. I do feel that each of those who came before us was a small business person and, may I remind the committee, often a woman.

The percentage of the market that the vending machines hold, as we understand it, is about 1%. We're talking about a very small number of people and a very limited access to cigarettes and tobacco products. I really can't believe that we can't support this for those few people, most of whom have less than 10 employees but who have put a lot of their life savings towards their businesses. Often they are family businesses: mother and son, we saw; brother and brother, father and son. They are not big conglomerates. I really feel they deserve every particular consideration we can give them, especially when we know their machines are obsolete. They've told us this. They're going to add to the landfill problem.

They are also people who have very few alternatives. In fact, one woman came and said she was approaching becoming a senior citizen. Others came who were definitely middle-aged. These people have not got alternatives to employment. What are they going to do now? They'll have debts to pay, no compensation, and only a few months to make a major adjustment in their lives, major financial changes in their assets and liabilities.

Mr Jim Wilson: I'm supportive of this motion because it's very similar to the motion Ms O'Neill just voted against by the Conservatives which talked about a three-year time frame.

Mrs O'Neill: "Similar" is the important word.

Mr Jim Wilson: I think the Liberal Party should be a little more consistent. They just voted against the PC motion. We're going to support the Liberal motion, but honest to goodness.

Mr O'Connor: We heard from the Liberals in bringing forward this motion that they feel there needs to be some compassion in dealing with this issue of the vending machines. I find it rather astounding that when the federal Liberal government decided to enact the federal legislation, it didn't include a little compassion in there. What we're trying to do at this point is recognize the need for some compassion, give them a date to go towards. Instead of the immediate hammer falling down like the Liberals did in Ottawa, we're giving them right till the end of the year to deal with this, which is an extended time from the three months originally proposed in the legislation.

The Vice-Chair: All in favour of Mr McGuinty's motion to amend subsection 7(3)? Opposed? Motion lost.

The next is the government's motion to amend subsection 7(3).

Mr O'Connor: I move that subsection 7(3) of the bill be struck out and the following substituted:

"Temporary exception

"(3) Subsection (1) does not apply until December 31, 1994."

For the obvious reasons that I've pointed out, unlike other governments that have decided to put these people out of business, we're trying to use some compassion and give them an extended period.

Mr Jim Wilson: That's just complete baloney. Other governments didn't put these people out of business; they negotiated with vending machine operators and came to a consensus which is reflected in the new law of Canada. The people of Ontario and the vending machine operators of Ontario are being denied those protections under that law because Bob Rae's government and his hordes feel they know best.

I want to ask the parliamentary assistant what guarantee he can give us that this time frame, as spelled out by the December 31 deadline for the banning of vending machines in this province, will actually be a longer time frame than the three-month phase-out period in the act. For example, Mr Parliamentary Assistant, you tell us you're not a minister of the crown. You can't give us assurances on much else and I'm sure you can't give us a date for when this bill will actually come into effect, so in fact your three months as spelled out in the original bill may turn out to be the longer time frame. You don't know. Tell me if you know something I don't know, but you can't guarantee this thing will come into effect in the near future. You have no control over what the Legislature will do.


Mr O'Connor: I appreciate that argument. On many different parts of this legislation, we've had some disagreement, but I think the one area we have agreed on is the need to bring this legislation forward as quickly as possible to deal with the issue of trying to keep our young people from this terrible addiction. I don't see why there would be filibustering that wouldn't allow the government to move forward with this legislation.

Mr Jim Wilson: I'm not suggesting filibustering at all.

Mr O'Connor: It's not the intention of the government to delay this for any great deal of time. It's something we plan to deal with in this session. In this session, we know the calendar year ends at the end of June. We committee members can see right now that three months beyond that isn't December 31. We're giving an extended period of time even if, in the worst-case scenario, it was the last piece of legislation we dealt with. We were fortunate that it was the last piece of legislation in the last session and that we did have the support from all the committee members, all the government members and the opposition members, to allow this to get on the table so we could have this discussion. Given that generosity by the opposition members at that point, that we could deal with this and get it out to committee hearings, I would think this is going to move forward in this session.

Mr Jim Wilson: The government has a very strange view of how Parliament works. We don't give you pieces of legislation to come to committee because of some sense of generosity, Mr O'Connor. That's not part of our parliamentary system. We do it because we agree with the principles of the bill on second reading, and if your government happens to call it before a committee, fine. We have no control over your agenda. To constantly come back and say the opposition holds it up -- you spun it on this bill for a while. You were the ones who dragged your feet over coming forward with any type of legislation. For months we never saw anything, yet we were being accused of holding something up, for goodness' sake. Let's not fool the public who are listening that there are behind-the-scenes generosity deals made on these things. We either believe in the principles of a bill and we support it, or we don't. And you're in charge of the agenda, unfortunately.

Mr Sterling: It's unfortunate that the parliamentary assistant has abrogated his duties in representing the minister here this afternoon. It puts the opposition in a very difficult position, and it's obvious from his intransigence in dealing with a number of issues we had put forward. We had hoped during the second reading debate that we would be able to look at this bill constructively and that the government would not react in a negative sense to any suggestions the opposition put forward. We've seen nothing but negative reaction to what we have considered reasonable suggestions.

I can only assume from the parliamentary assistant's comments vis-à-vis compensation for vending machine owners that he's pushing us to the point where we have no choice but to go to committee of the whole House and deal with the minister. We're going through all this for naught, and we might just as well rise and report the bill at this time. If the parliamentary assistant doesn't feel he can handle this issue, as he seems to be indicating, maybe we should have the minister here so we can deal with it with somebody who can make some changes to the bill.

Mr O'Connor: I appreciate the honourable member's comments about whether we have the ability to move this forward. The key here is that the reason we've got consensus, the reason we had this go through second reading and got it out to committee hearings was because we agree that 13,000 needless deaths in the province every year from tobacco-related illnesses is intolerable and we have to deal with.

For him to now suggest: "Let's hold it up. We can't deal with it now because we don't like the amendments you come up with" -- well, we had people come forward and ask us for a time extension. We're giving them an extension. We had people come forward with many constructive reasons why some areas need to changed, and some of those changes are happening. For the member to suggest that we should drag this out, go into committee of the whole and not even deal with it at this point, I find reprehensible. I don't think that's a very good way of dealing with it.

This is a very serious health issue. We've got 40,000 Canadians who die every year from tobacco-related illnesses. We had a federal government that didn't want to deal with it. Mr Chrétien dealt with it in the way he thought was fitting, which I don't believe was a good approach, and now we see the member here suggesting that we delay this a bit further, going to committee of the whole House.

"We don't support it"? Well, we've heard his arguments that he doesn't support this bill many times over: "It's not good enough. It's not good enough." Well, we didn't see anything being introduced by the Tories. For all the 42 years they were in government, we didn't see it happen.

Now we've got a piece of legislation before us. I think it's a good piece of legislation. We recognize some impact it's going to have on some people, and we modified some areas taking that into consideration. Now for him to suggest, "We're not getting everything we want and we're going to drag this out and drag this out," and "Let's let a few more people die," I find that totally reprehensible.

Mr Sterling: I think the parliamentary assistant is ridiculous and inviting confrontation. If he wants us to hold up the bill in the Legislature, he can continue to act this way. I have a long record in dealing with these kinds of bills and trying to reach some kind of consensus. I've worked with previous governments, previous ministers and that kind of thing. But one thing I have required, one thing I have argued very strongly for, is fairness on all sides of this issue.

This government is not willing under this section to deal in fairness with people who have put up their life savings. They are confiscating these people's livelihood without compensation, and we consider that a very serious matter. I voted for this on second reading because I believe there are some good parts to this bill, but we really do require that people be treated with some kind of fairness in this province. You can't take away people's livelihood, you can't take away their assets without being fair and saying, "We'll deal with you in some fair manner." This is a terrible thing this government is doing to these small business people. This is awful. This is terrible, and we've got to fight for them. If they're not willing to see this and deal with it --

Mr Jim Wilson: They did that in Germany. We had a war over this issue once.

Mrs Haslam: We're doing what you asked us to do.

Mr Jim Wilson: We had a war over this type of issue, and it is not an exaggeration. Government coming in and confiscating property and wiping out the rights of its citizens did spark in part an uprising in this world. The principle is the same, on a smaller scale, because we're only dealing with a few vending machine operators. This government won't budge on an issue of fundamental fairness, because it's driving people out of business --


Mr Sterling: We believe in people's rights. You people believe in anarchy. We don't believe in anarchy.

Mr Jim Wilson: They're driving people out of business.

Mr Sterling: We don't believe in running over people's rights.


The Vice-Chair: One speaker at a time, please. I would ask all members to allow Mr Wilson to complete his remarks -- he has the floor -- and then you will have the opportunity to speak, if you wish.


Mr Jim Wilson: Clearly, we've expressed our views quite strongly on this issue. We simply believe in fairness, that if you're going to take away the livelihood of families in this province, the government has a moral obligation and in fact should have a legal obligation -- we're going to have to get some laws into this province that ensure governments can't act in this dictatorial fashion. When we see it happening in other parts of the world, we tell our families and friends that it's disgusting, comment in our living rooms that it's disgusting that another country, a communist country or something, would do that. And here, albeit on a smaller scale than what we've seen in other parts of the world, is the exact same thing happening.

Mrs Haslam: It is not.

Mr Jim Wilson: It is exactly the same.

Mrs Haslam: What an exaggeration.

Mr Jim Wilson: It is not an exaggeration. It is exactly the same thing happening. You are confiscating property and business rights with no compensation.

Mrs Haslam: We are not confiscating property at all.

Mr Jim Wilson: Then what exactly are you doing, Mrs Haslam? What exactly are you doing when you put vending machine operators out of business? You are confiscating --

Mrs Haslam: We're not confiscating.

Mr Jim Wilson: I will read the act to you. You are confiscating their property --

Mrs Haslam: We're asking them to remove the machines.

Mr Jim Wilson: -- and putting them out of business.

Mrs Haslam: Half the people who came here said that they had a percentage of their machines in tobacco, not all of them.

Mr Jim Wilson: By putting them out of business you're making their machines null and void.

Mrs Haslam: Not all the people who came here have all their products in tobacco machines.

Mr Jim Wilson: As somebody said, they're going to end up in the landfill because they're useless. You're making their machines and their livelihood useless. You're a bunch of communists, that's what you are, an absolute bunch of communists.

Mrs Haslam: And you're a fascist. So there. You want to get into name-calling? What a good use of our time in this Legislature.

The Vice-Chair: I don't think we want to --

Mrs Caplan: Mr Chairman, I suggest that one of the reasons people are so cynical about what happens at committees such as this is when we see this kind of behaviour coming from not only the government side but also from the Progressive Conservatives. People are watching these hearings. I think the least we can do is respect each other if we expect people to respect us.

The Vice-Chair: Thank you for the advice.

Mrs Haslam: It has to be on both sides, Elinor.

The Vice-Chair: Please. Mr Wilson, will you conclude?

Mr Jim Wilson: I will conclude my remarks by saying that is very nice, but I hope you never take this right away: the right of parliamentarians to stick up for their constituents as forcefully as they feel necessary to drive home a point to a government that clearly isn't listening.

Mr Sterling: I make no apology for the method or the amount or the height of any fight I undertake on behalf of my constituents. I don't want to be a wishy-washy Liberal like Elinor Caplan.

Mrs Haslam: That was uncalled for.

Mr Jim Wilson: It's absolutely called for.

The Vice-Chair: Mr Sterling, please. We're dealing with the problems at hand.

Mr Abel: She has contributed a lot, and I think that's very unfair.

The Vice-Chair: Mr Abel, did you wish to speak at this time?

Mr Abel: I just said my piece. Mrs Caplan came up with some excellent suggestions today, and Mr Sterling's comments are certainly uncalled for.

Mr O'Connor: I'd just close up this discussion, and it's too bad it's gone on to the degree it has. The fact is that the federal legislation which banned it right across the country, with the exception of some licensed premises, faced a problem here in Ontario. In their legislation they never dealt with the reality of these business people. What we did in our initial legislation was put in the three-month period, but after hearing from people, we recognized it was too short a time frame and extended it to December 31. I would just close with that.

The Vice-Chair: You've heard Mr O'Connor's motion to amend subsection 7(3). All in favour of the amendment? Carried.

All in favour of section 7, as amended? Opposed? Carried.

All in favour of section 8 of the bill? Opposed? Carried.

Section 9: The first is a Liberal motion to amend section 9, paragraph 2.

Mrs O'Neill: It's time for Mr McGuinty to present his motion, correct?

The Vice-Chair: Mr McGuinty, are you prepared to move?

Mr McGuinty: Yes. I'm still with the tour here, Mr Chair.

I move that paragraph 2 of section 9 of the bill be struck out and the following substituted:

"2. A school or a private vocational school."

What I am trying to do is to remove from the ambit of Bill 119 colleges and universities. First of all, let's understand that when it comes to smoking policy in our campuses there's hardly a state of anarchy. As Colleges and Universities critic, I have learned that there is no smoking taking place in classrooms. Secondly, I have learned that campuses are subject to municipal bylaws. Thirdly, I've learned that most colleges and universities have struck smoking committees of some kind in which students, administration and faculty participate, and they have established smoking policies on their campuses.

Remember again, whenever we stray away from the original intent of the bill, which is to make it harder for young people to start smoking, we get into trouble. Now we want to regulate what goes on at colleges and universities. I believe the average age for college students now is in excess of 25 or 26, and as you might imagine, there are many people going back to school at a post-secondary level in order to upgrade their education, their skills, their qualifications, to make them more marketable in the employment sector.

I spoke with someone regarding this issue and I know that the government motion -- I guess I'll bring up those arguments at that time, but I'll make passing reference to them now -- intends to provide, when it comes to colleges and universities, for a general rule that there's no smoking anywhere, but they've got a couple of exceptions.

The first exception: You can smoke outside. Fair enough. I think it's patently reasonable.

Secondly, you can also smoke in any of those areas which the government is going to prescribe some criteria for. We're not really sure what those criteria are going to be, but I suspect they will have something to do with separate ventilation systems. Am I correct in that regard?

Mr O'Connor: At this point there isn't anything that's going to suggest that we move forward with something as far as these separately ventilated areas. I think the key here that the government wants to point out -- and I can see where he's got some confusion about maybe the intent of this, but the fact is we believe that people have the right to pursue education in a smoke-free environment. What we're talking about then are the portions of buildings where people go to colleges or university in the pursuit of their education.

If there is, for example, a pub facility on a campus, you're right, that would be regulated then by the municipality in the municipal bylaws. For those campuses that don't have a committee struck already, as you suggested, I would encourage perhaps that they do that and come up with their own smoking policies. The key here is that we wanted to make sure that people have the right to pursue their education in a smoke-free environment.


Mr McGuinty: Again just to reiterate, there's no smoking going on in the classrooms.

I spoke with the fellow who made a presentation on behalf of York University, and he was telling me that there are 30 restaurants and pubs on the campus and 24 of those do not have separate ventilation. I just want to plant the seed here for the government members. That's 24 that do not have separate ventilation, so if you were to make separate ventilation a requirement, for instance, then what you're going to do is to unilaterally impose some very heavy costs associated with making the necessary changes to have them separately ventilated.

What you're also doing is, perhaps unwittingly here, you're going to discriminate against the restaurants and pubs found on our campuses and you're going to drive the patrons of those restaurants and pubs, particularly the pubs, off the campus, across the street and into a restaurant or a bar or a tavern which is run by somebody else who is not subject to the same kinds of regulations. I just want to make it clear that that's a very pressing concern that they have, that they're going to be discriminated against by virtue of having their pub or restaurant located on a campus. How do you respond to that?

Mr O'Connor: To address that, and I think the point you make is valid, that these facilities on campuses are very similar to other restaurants and establishments out beyond the campus, I think the concern that was pointed out to us was that they be on a level playing field, that they not be subject to something above and beyond what would be expected elsewhere. I think that's a reasonable assumption to be made.

I can't see any reason why there would be regulations drafted that would be tougher for an eating establishment that has a smoking area on a college campus that is separate. You know, the purpose isn't for education at that point. They're an eating establishment, a restaurant or a pub, same as any other within the broader community. You're right that there needs to be a level playing field there.

Mr McGuinty: There are very few young people who are at colleges and universities, so we're not concerned here about young people picking up the habit at colleges and universities. I gather we're concerned with secondhand smoke, right? I gather that's the government's concern in this regard.

Again, the people who run these institutions are all big boys and big girls. They're subject to municipal bylaws. They already have designated areas where they can smoke. They have their residences on campus. Some of them smoke in their residences, in their own private rooms.

If you don't think there are any debates that have raged over the past 10 years on our college and university campuses regarding smoking you haven't been paying attention. In fact, in many cases they think we're way behind the times in terms of addressing it here in government.

My preference would be that we let colleges and universities address this on their own. They have been doing so effectively. I don't recall any presentations made here by anybody complaining about secondhand smoke in colleges and universities. If I'm mistaken then I stand to be corrected by any committee member. I don't recall any presenter here saying that kids were getting access to cigarettes on college and university campuses. Again, I'm quite prepared to stand to be corrected if anybody can recall anything that I did not hear.

I don't recall anybody asking that this provision be put in there because kids were getting access to cigarettes or people were having to put up with secondhand smoke. Our post-secondary institutions in this province are very advanced in their thinking relating to secondhand smoke. Many provisions have been put in place now to ensure that people aren't exposed to it. Many more will continue to be so in the future. I expect that at some point we're going to have a smoke-free campus, but when they do that, and we'll all be proud of it, they'll do it on their own, not because we told them to do it.

Mr O'Connor: Just to point out for some of the committee members who never had the opportunity as we went through a previous consultation within the ministry, it was brought up as an issue for adult educational institutions that they have the opportunity to pursue their education in a smoke-free environment. I can see why there is some concern over the way it was drafted in legislation, and there will be an amendment that hopefully clarifies some of that. But the key here is that people have the right to pursue their education in a smoke-free environment.

Mrs O'Neill: I don't know where to start, because Mr O'Connor has said so many things. First of all, he has said that we are talking about a smoke-free environment at the universities. We have a difficulty right now with the Minister of Education and Training of this province trying to interpret Bill 4 regarding suspensions. He's interpreting 20 days one way and school boards are interpreting it another way. I foresaw some of that difficulty when we were passing that bill.

Here we get the parliamentary assistant talking to us about, "Oh yes, we must be able to pursue our education in a smoke-free environment." I was on a university campus for two days last week, not in this country, true -- a smoke-free environment in the classrooms, actually in the library. I've been in many university libraries; I've never seen anybody smoking in a library. I was in, however, on that same campus, a pub that's been there since 1886 which had designated smoking areas in it. I don't know whether it had designated smoking areas in 1886, but it did last Thursday.

All I'm telling you is that your definition, as you're explaining it, has not yet been very defined. It hasn't been very specific. I don't know how anybody in a post-secondary institution would know what you are speaking about.

We have residences. We saw many residences. Most of these residences do have a smoking area. It's a person's home. But a post-secondary institution -- that's the way it's written here -- likely means the campus, which is acres and acres, sometimes blocks and blocks, if you're talking about the University of Toronto.

The retail store: Is that going to be the same interpretation with pharmacy as institution is with campus? This is very complex stuff and it does change people's lives and their habits.

I don't feel that I would want my young people having to go over to Yonge Street instead of being able to use the campus on the U of T, if they so wanted to stay on the U of T campus and have a smoke. None of my kids happens to smoke, but I can put myself in those parents' places.

We had, and I'm going to bring back again, the group of students who came here from Etobicoke and were all smokers. They were all going to a drop-in centre. The counsellor who was with them said they found the best way to deal with the situation in that drop-in centre was to have the young smokers involved in planning, first of all, how they were going to get off smoking and, secondly, how they were going to handle it until they reached that ideal.

All of this just contradicts that. We heard that the average age of the university student is 27. I certainly think if one of us walked around the campus around here even, we'd find that out. They're much older students.

The other thing that I have a great deal of respect for and that hasn't been mentioned is that most of these campuses -- and indeed I think we did have one student council from a secondary school, but I'm talking about student government. I happened to have been involved in university student government. It's a very, what should I say, well regulated, responsible, accountable body. They are very accountable. Let me tell you, I've been there.

I just feel that this can be handled well. We've heard the witnessing that it is being handled well. I've had three children go through three different universities, and they certainly felt that their problems were solved in a manner in which their peers were consulted. I just don't think that we can put a school, which we know is likely at the most five acres, and a post-secondary educational institution, which is block upon block, maybe hundreds and hundreds of acres, into the same category; and then a private vocational school, which is usually a very confined building. They just don't sit together.


You made the statement, "Maybe there will be an amendment." If there's going to be an amendment, let's hear it, folks. We're here at this crucial point of this bill. We're talking about however many universities -- what are there, 22 in the province? -- a large number of universities with very extensive campuses. We're going to change people's lives and, as my colleague has just said, maybe cost universities a lot of money. If you're going to put regulations that are going to state certain things, let's tell them up front we're going to do that, but then we have to give them some grants. They are suffering.

We really have to know what this means. It's really unfair. That's why I voted against the section of the bill that talked about a retail establishment, because I thought your definition was wet, and I think your definition is wet here again.

Mr Jim Wilson: We won't be supporting this Liberal amendment. I think if members refer to the government amendment that's coming up, it deals with this issue and allows some exceptions through regulation for what I assume will be the pub areas on a campus. We've already heard during the committee hearings that this bill won't affect smoking in the private residence rooms of individuals, which was a concern of the student council representations received from those student councils. So I think the government amendment coming forward covers the concerns that have just been expressed by my colleague in the Liberal Party.

Mrs Haslam: I just wanted to make mention that although the average age of students may be 27, it still does get students at a younger age. I'm in an exact opposite position, where I have a son who started smoking at 19 when he came into Ryerson here at school. So it may be the average age is 27, but we still find people coming into post-secondary education who haven't started to smoke yet and are at an age where they could start in these facilities. So I have a concern about that.

I was hoping that we could discuss some of the parameters around exactly what the "post-secondary institution" means, and I'm glad to hear that we're talking about the educational facilities, because I do hear a concern around the pubs and around some of the other areas on a campus. I think we should be very clear that that's not what we're talking about.

Mrs Caplan: I'm interested in the government's amendment. What I'm looking at are the exceptions. What I want to know for the record from the parliamentary assistant is whether or not the exceptions -- first is exception (2), "outdoor areas in certain places." I think that's self-explanatory.

Exception (3), "private areas in certain places": What this says is, "The prohibition set out in subsection (1) does not apply to the parts of places referred to in" all of those institutions, primarily, which are not open to the public. I'd like you to give me some examples of what that would be.

The exception in subsection (4): "The prohibition set out...does not apply to an area set aside for smoking within a place referred to...if the area is identified as an area where smoking is permitted." The question that I have is, will these have to be provincially designated or will you be able, by regulation, to permit the governances of the institutions listed under 1 through 13 to determine which places are exempt?

Just to finish my question, because it really is all in one, I want to know whether or not this will satisfy the concerns that have been raised by my colleagues Mr McGuinty and Mrs O'Neill regarding pubs on universities, designated areas in university residences, for example, and how you're going to identify those. Will it be by regulation and will there be a process that will be open to discussion around how those will be decided?

Mr O'Connor: In most instances where we're going to have to deal with some areas in regulation, it would be through a consultative process. There's no doubt about it. To help answer the question, I would ask Frank Williams to help with the legal things, because here we get into a point where it might be easier to get a legal opinion that might just clarify the concerns that you and your colleagues raise.

Mr Williams: I'm not sure just what parts of it you consider legal and what parts of it are really how we're going to implement the policy. Certainly the part of your question that referred to subsection (3), those areas that are not open to the public, for example, we don't want to necessarily restrict an owner of a private business from being able to go into the back room and have a cigarette if he or she wants. That's not our intention. It's areas that are accessible to the public.

Likewise, some retail premises are operated in private homes. Part of it's a business and part of it's the home. So in the part that would be the business, there would be restrictions on smoking; in the part that's the private home, there would be no restriction. So that's part of where the subsection is aiming at.

Mrs Caplan: That's because you've included places like hairdressing establishments and barber shops?

Mr Williams: That's correct.

Mrs Caplan: It's quite broad, "a place that belongs to a prescribed class." That's kind of legalistic. But the intention here is that it would be only in those places where the public come in, and wherever it is private, they would be automatically exempt by this legislation.

Mr Williams: That's correct.

Mrs Caplan: That's exemption (3), certain private areas?

Mr Williams: That's right. Subsection (4) is an attempt to address the types of issues that Mr McGuinty has raised.

Mrs Caplan: I'm clear on exemption (2), outside. I think that doesn't require any process. I have no problem with exemption (3). I don't think you're going to need a process on that. That's pretty clear.

On exemption (4), how are you going to determine who is exempt? I don't want to see a big bureaucracy established to have to do this. I think the point that Mrs O'Neill and Mr McGuinty made is a very good point; that is, that many of the universities have committees and so forth. Does this legislation allow those committees to grant exemptions?

Mr Williams: In essence, no. This is a policy question. I can't answer whether the government in fact is going to do this, but there's nothing to prevent the government from consulting with these various committees, seeing what their criteria are and perhaps adopting them as the criteria that would be prescribed in the regulation. That would be a partial answer.

Mrs Caplan: Is there anything in this legislation which would permit delegation to an authority for the purpose of these exemptions?

Mr Williams: The legislation the way it's written does not provide subdelegation, but as I say, the regulation could adopt the criteria that a committee established.

Mrs Caplan: I would be much more comfortable if you would consider an amendment to your amendment that would permit delegation, where you have autonomous bodies that have set up the criteria, to allow them to enforce this regulation rather than having this central control of government trying to make these exemptions for all and sundry on this list, particularly post-secondary institutions. I think you could probably get an amendment to this quite easily or I'd be quite prepared to propose an amendment that would give, through the regulatory power, the right to designate for purposes of exemption (4). I just think that makes a lot of sense, if you would be willing to entertain that.

Mr O'Connor: I appreciate the intent you've put forward here, Ms Caplan, but I think in an effort to try to be as straightforward as we can with this, that might make it just a wee bit more ambiguous. I do believe we need to reach into the community as much as we can as we develop these regulations for the ease of implementation.

Mrs Caplan: Perhaps you don't understand. All I'm suggesting is that you give yourself the power to delegate your authority. That doesn't take anything away. It's a very simple amendment to your legislation that would allow government the right to delegate for the purpose of these exemptions. I think, if anything, it would make it clearer and easier and less bureaucratic.


Mr O'Connor: In the opportunity here that I've had to consult with Brenda Mitchell, who has been helping us through this process within the ministry, she suggested that we may be able to deal with this in section 10.1 in our amendment coming up. But maybe to help clarify some of the other elements of your concerns, I'd ask Brenda if she would like to address some of them.

Ms Mitchell: I think one of the things that's changed in the act and why I suggested that this may be raised by you under our motion for section 10.1 is that when we prepared the amendment to section 9, section 9 now deals basically with non-smoking areas, and the regulatory authority for designating smoking areas has been moved to section 10.1 under our motions. I think the question you raised relates to designating smoking areas.

Mrs Caplan: I'm looking at 10.1 and I don't see there where you have the authority to delegate either.

Ms Mitchell: No, I'm just saying in terms of the section of the act where it would be dealt with, it's now section 10, because previously in the bill as printed, the authority to designate it a smoking area was under section 9, paragraph 1. When the amendment was written for section 9, that regulatory authority for exempting a smoking area was taken out of section 9 and moved into section 10. That's the point I'm making. I think Frank wants to clarify.

Mr Williams: I agree with Brenda, but I think perhaps if I could discuss with legislative counsel, if we could maybe stand your comments down till later, you might want to consider that. If I can talk to legislative counsel, I'm thinking that perhaps we can deal with it even in the regulation-making section, which is 18, which ties again into section 10.1.

Mrs Caplan: Could I request that we set this down so that you can consider that?

Mr Williams: I'm just talking about this part of the discussion, because it relates really to Mr McGuinty's motion. We're not talking about the government motion yet.

Mr O'Connor: I think what we're dealing with would come under section 18 then, regulation.

Mrs Caplan: The advice from counsel is that we set this section down and move on to the other sections while you --

Mr Williams: No, I was talking not the section, but just this part of the discussion until I get a chance to maybe discuss with legislative counsel the best way of doing it.

Mrs Caplan: Then we should be discussing another motion instead and not vote on this.

Mrs Haslam: We're not on that yet, are we? We're still on the Liberal one.

Mr O'Connor: We're actually on Dalton's.

The Vice-Chair: Thank you for the suggestion to stand it down. Mr McGuinty.

Mr McGuinty: Just so we're clear about what my motion does, again it removes colleges and universities from the ambit of Bill 119. We have to look at the alternative, obviously, so members can decide which is better. The government amendment provides -- and correct me if I'm wrong -- that there's no smoking on college and university campuses anywhere except you can smoke outside and you can smoke in those other places which meet certain criteria which have yet to be drawn up and enunciated by the government. Am I correct, Mr Parliamentary Assistant?

Mr O'Connor: In part of your analysis, yes, you could be correct. The key here is that what we're trying to deal with, and I guess maybe we're not getting the point out clear enough, is the places where the education takes place and parts that a person needs to go to in the pursuit of their education, which, for example, Ms O'Neill presented as libraries.

Mr McGuinty: Maybe I'll ask it this way. Will residences be excepted? Will students be allowed to smoke in their residences?

Mr O'Connor: At this point it's not in the legislation that would restrict them from the ability to smoke in a residence.

Mr McGuinty: The regulations won't ban smoking in residences?

Mr O'Connor: It's not the intention of the regulation to ban smoking in residences.

Mr McGuinty: Okay. Pubs and restaurants found on campuses: Will the regulations ban smoking in those? Will they have to comply with any regulations that their counterparts in another part of the city don't have to comply with?

Mr O'Connor: The intent in dealing with the pubs and restaurants would be that they would be subject to the same regulations and criteria that would be expected in the rest of the community, not on the campus. If a municipality has, and some municipalities have, some pretty stringent smoking bylaws, the more restrictive would be in place. Whether it be downtown Toronto, the University of Toronto, or whether it be a campus outside of the city of Toronto, they could actually be complying with different rules, but they would be related to the municipality in which they happened to fall.

Mr McGuinty: All right. Then I want to indicate that the parliamentary assistant has gone a long way towards alleviating the concerns that I've raised and that were raised by students and representatives. I still want to go ahead with my motion on the basis of principle, because I just think that colleges and universities are quite capable of managing their own affairs, including the issue of smoking on campus.

Mrs O'Neill: I have to ask the same question my colleague just did. The "prescribed criteria," and I know this is in the motion that Brenda referred to: What does that mean? Is that going to be criteria that are going to be established in regulations and it's only going to refer to this section of the act? Is that what we're talking about, "prescribed criteria"? Could you give me some example of what we're talking about? Are we talking about workplace rules, square footage; what are we talking about?

Mr O'Connor: I'm grasping for a good definition here that would give you an area that we're talking about as prescribed. In an effort to help me along, I'd ask Brenda Mitchell to assist me. The key here is that we're trying to not make it exclusive so they're going to be more restrictive on campuses but be able to fit in with the rest of the community which that campus falls within.

Mrs O'Neill: This is why I have so much difficulty, because every time we ask you what it means, we can't find out. This can't be a great big secret. This issue is of very high public interest, talking about hundreds of thousands of students. They want to know what's going to happen.

Mr O'Connor: I appreciate the concerns that you've raised. and in fact as I stated before, we went through a consultation a year ago at which time it was presented that adult education institutions should be part of the legislation. It was put into the legislation, and as we went through this consultation process, it was pointed out to us, quite ably, by people from these campuses that there was a problem. I think what needs to take place now is some further consultation with those people while we draft some of those regulations.

I'd like to assure you that it's not going to happen in isolation of the abilities that these campuses have of providing us with some information to deal with it in a fair and just fashion. We will consult with the colleges and the universities, the students or the establishments that are concerned at this point.

Mrs O'Neill: I hope that will be picked up in Hansard.

I have one other question and I guess it goes along with Mrs Caplan's line of questioning. I can't understand why "in private places" in your amendments that you're going to present that you haven't included section 5, which are the post-secondary institutions, as having places that are not open to the public. In my mind, that would cover such things as a smoking room for students in a residence or a residence room. All of a sudden there are no private areas on campuses of a university. Maybe you're trying to get away from workplace smoke where a professor might go into his office; I don't know.

You have to guess all the way through this bill what you're doing. That's very, very frustrating, and it's also, in my mind, confusing to the general public who are going to have to live with this. You've got it for all these other places. You've got it for a pharmacy, you've got it for premises of a financial institution, an establishment where goods or services are sold and you've got it for a self-serve laundry. A place of the self-serve laundry that's not open to the public would have to be part of the workplace then, unless it's part of the person's home.

Mrs Caplan: In a back room.

Mrs O'Neill: I know; a back room is a work environment then. You know what I'm saying? It's just full of contradictions.


Mr O'Connor: I appreciate the concerns that you're raising, and I guess that's why at this point we find ourselves in a situation where, though when the draft legislation was circulated we heard from 240 different written presentations and 34 oral, this wasn't pointed out as a real problem at that point. That's why, when we take a look just across the road at the University of Toronto and we take a look at the size of that facility, I suggest that we do need to go and consult with people from the universities, that we go and talk to people and find out where we should be putting them in for further definition through the regulations. I don't think it's something that should be done in isolation and I agree that we need to go further and go and talk to these people. It's not as simple as we'd like it to be -- life's never like that -- but we do need to realize the fact that these people have some legitimate concerns and we want to address those concerns, just as you are doing on their behalf in this committee.

Mrs O'Neill: I'm certainly going to be supporting this motion. I feel that universities have very big decisions to make, much bigger than this, and they are very capable and they are very responsible regarding the health of their students. I think that the students, the professors and the administrators of post-secondary institutions could easily make some very reasonable and likely rules that the government could live with within their own purview. They should not be part of Bill 119.

Mr Sterling: I appreciate what Mr McGuinty and Ms O'Neill are talking about, but if you look at it from the other aspect, from the other point of view, I think that the government amendment is a good one. What it does is it says, "You're in but there will be specific designated smoking areas," in their pubs and wherever is necessary in the university. I think you have to trust the people to get together to make regulations which are somewhat reasonable. But to say universities are out because they are responsible people in terms of what they're doing is not protecting the non-smoker who has to take in the secondhand smoke. What is the protection for the non-smoker who goes into a university that doesn't act responsibly or a college that doesn't act responsibly under this particular section of this act?

We are saying here, then, that you have school boards -- there are lots of school boards which have banned smoking a long, long time ago and have acted in a very, very responsible manner in terms of dealing with the smoking issue in their establishments. This is, in my view, much more important than where we sell tobacco. I think that's more a philosophical issue. This is an issue which really affects secondhand smoke and people who are exposed to secondhand smoke. Why should there be any less requirement on a university to establish rules to assure people that there are non-smoking areas as there would be in a self-serve laundry or in a school board or anywhere else?

What we're talking about here is not saying that a university is responsible or will reach reasonable conclusions. What we're doing is guaranteeing a floor for the non-smoker. We're not saying that smokers must have access to everywhere to smoke cigarettes. This is the issue. The issue is the other way around as far as I'm concerned. What we're trying to do here is set a bare minimum in some public places in this province where you must go in order to get a higher education and that you can be assured that the university or the college is going to have a policy which will assure you that you can avoid secondhand smoke in most cases, if you so choose. To take them out in a blanket way I think is not responsible.

I wanted to raise that issue because I think that while there's a problem there, there is also a problem in not including it in Bill 119.

The Vice-Chair: Thank you. Any other speakers? If not, you've heard Mr McGuinty's motion to amend subsection 9(2). All in favour of the amendment? Opposed to the amendment? The amendment is lost.

The next is a government motion to amend section 9.

Mr Sterling: Do you have my amendment as well? I didn't know if you wanted --

The Vice-Chair: Section 9, paragraph 8.1, is it?

Mr Sterling: I didn't know whether you wanted to deal with that one or the other one. It doesn't matter to me.

Mr O'Connor: We could deal with mine first.

The Vice-Chair: That's the way it's been listed here, 1, 2, 3, and then the PC, because of the numbering. Is it in order to go on?

Mr Sterling: I don't know which makes more sense.

The Vice-Chair: Well, the next is paragraph 9.8.1.

Mr Sterling: Which way does the parliamentary assistant wish to do it? Do you want mine first or yours first?

The Vice-Chair: Mr O'Connor, which do you prefer? Can I use that term?

Mr O'Connor: Maybe in a fashion to allow this to proceed, if I was to read my motion and then perhaps Mr Sterling might want to speak to his motion in the light of the motion as presented. Either way, I'm quite flexible.


The Vice-Chair: Yes, I realize that, and we have copies of the government motion so it doesn't need to be read. Right. We don't want two on the floor.

Mr Sterling: Which way do you want us to go, Mr Chairman?

The Vice-Chair: Mr Sterling will proceed with his motion.

Mr Sterling: I move that section 9 of the bill be amended by adding the following paragraph:

"8.1 The common areas of a shopping mall that are used as a corridor to connect the retail establishments, restaurants and other leased premises in the mall and including any area that is close to establishments that serve food and drinks and is used by the patrons of these establishments as an eating area."

I feel that enclosed shopping malls are a significant public area where people are subjected to secondhand smoke. I would suggest, in conjunction with the government amendment, that it be included in subsection (4) of the government amendment; that is, that the prohibition I'm setting out here in terms of shopping malls would not apply to areas which are identified where smoking would be permitted. In other words, I would include 8.1 but say that when we deal with the government amendment I would move to amend that to include it as part of subsection 4, where there could be permitted areas. What you would have as a result of those two actions would be that generally there would be a ban on smoking in enclosed shopping malls, but there might be areas in the shopping mall where smoking would be permitted, but those would be clearly identified.

Mr O'Connor: I appreciate what you presented to us. I guess the one difficulty I have is the fact that unfortunately I haven't had the opportunity to have a broader discussion around this with my colleagues. I appreciate where you're coming from. I don't know whether we would not have the ability to move forward with this type of change through regulation down the road, but at this point maybe I could ask for some legal opinion whether we could move forward with this at a further point. At this point, I haven't had the opportunity to really have this discussion with my colleagues, though I appreciate where you're headed with this.

Mr Williams: Certainly there is no problem as the bill is presently drafted or as amended, if it's amended according to the government motion. In either case, the government could move ahead at a later date to add shopping malls or whatever other area that was to be prescribed by regulation.


Mr O'Connor: My only concern, Mr Sterling, is the fact that as we went through this debate, there were a large number of areas that were laid out in section 9. We did hear some substantial debate through this process. This not being part of that debate on which places there was going to be the ban, we haven't had the opportunity to hear from some of the owners of these types of facilities. So we haven't had the opportunity to talk to that part of the business community.

I can see where your intent is. I think it's very good and I think perhaps it's something that maybe needs further consultation so that if we were to move forward this year it should happen in a regulatory fashion, knowing we have that as an ability. I think you've certainly raised a point here. I think we do have some difficulty with it, though not the intent.

Mr Sterling: If you need some time to talk to your colleagues and you can deal with this tomorrow morning, fine and dandy, we'll stand it down. If you're talking about a longer period of time, then I guess I would want to push the issue. What are you talking about in terms of consultation?

Mr O'Connor: I think there needs to be a broader discussion on this issue as you've presented it here.

Mr Sterling: Why?

Mr O'Connor: I think as we circulated the bill and had our public hearings, this part of the business community didn't realize they could be impacted with an amendment of this fashion. I do think that in this element of fairness you talked about, that discussion does not need to take place. I appreciate the intent you've put forward here, but I think there still needs to be some broader discussion on that.

You'll note too that in our legislation we have the ability for some jurisdictions that want to proceed far beyond what we have for provincial rules. They have that ability to do so as well through a municipal bylaw, for example.

Mr Sterling: You know, consultation: There is a valid argument that you should consult with people in terms of regulation and that kind of thing. But I would hasten to say that most mall owners would welcome this kind of legislation so that it would be clear to their patrons that what they were doing in fact in terms of restricting smoking to certain areas was a government edict. That's what they would prefer to act on, and therefore they're all acting the same way and therefore there's none of this cross-commercial argument that takes place any more that you go to mall X and you can smoke anywhere and in mall Y you're restricted to certain areas. In fact, in most malls I'm aware of, smoking is restricted to certain areas at the present time.

Mr O'Connor: Just the eating part.

Mr Sterling: I guess what you have to gauge here, or what the government always has to gauge, is that if it is a serious problem, which I believe it to be, then if you're going to act this way anyway, well, the sooner the better in terms of what you're going to do.

I also mentioned to you as well that as I understand it, and maybe legislative counsel would correct me, if in fact you ran into something, again, you don't have to proclaim this section or this part of this section if it was a horrendous -- you know, if everybody ran at you and said that there's this tremendous problem associated with shopping malls.

But I'm interested in strengthening this law, and we're legislators here. We have the right to make some decisions here. We talk to people in our constituency. I just don't see this in terms of there being a tremendous number of downsides on the consultation end of it.

The Vice-Chair: Ms Haslam.

Mrs Haslam: God, he talked so long, I almost forgot what I wanted to say.

On the side of consultation, I agree. I think that without it being in the discussion paper, without it being in the legislation to have them come forward and give some sort of idea, I would be nervous about putting this in place.

My question, though, is around 13, "a place that belongs to a prescribed class." Could what Mr Sterling is suggesting regarding common areas of a shopping mall be interpreted as a place that belongs to a prescribed class? Therefore, could we do that as part of the regulations or as part of 13?

Mr Williams: That's correct. The way section 9 was originally drafted, it talked about "a prescribed place," which got us into the rather awkward position of having to prescribe each place by name and that wasn't the intention. So we wanted to do it by general prescription. It could be shopping malls or it could be whatever other class of public place that we wanted to prescribe by regulation.

Mrs Haslam: In order for that to happen, that would be covered under regulations then? There would be a list in the legislation and then this particular one would go under regulations and would allow for some consultation before it was put into regulations?

Mr Sterling: Maybe.


Mr Sterling: Not with us.

Mr Jim Wilson: It doesn't come back to the legislators here, obviously.

Mrs Haslam: No, but I'm more worried about people in my riding who are in the situation where suddenly we have put something into legislation that they've had no input on, and that is my concern. I would rather err on the side that they have input and be able to look at it as part of the regulations. Anyway, you've answered my question. It can be handled under paragraph 13 as a designated class and it can be done under those auspices following consultation with malls.

Mr Williams: I guess the government always has the prerogative to move or not move ahead with a regulation, either with consultation or without consultation. So my answer would be basically, if you want to consult, you can take as much time to consult and then pass the regulation or pass the regulation to come into effect on some future date, but it would be up to the government to decide how it wants to proceed. But the authority, the way it's drafted now, is open-ended and you can interpret it the way you want.

Mrs Haslam: Mr Sterling has brought up a mall as being an area. In looking at 13 things, and we couldn't list everything, what other things didn't we list as an example that we looked at that we didn't list? I mean, the list goes on for ever and a day, I would assume.

The Vice-Chair: Is there a response to that?

Mrs Haslam: No, I don't need a response. Thank you.

Mr McGuinty: I think this is a very good amendment and I'm going to support it. We were talking earlier about colleges and universities and how people who are required to complete an education have to travel through those hallways and on the campus and different areas and there is a concern for protecting people who attend those institutions from secondhand smoke.

I think we move one heck of a lot more people through shopping malls than we do through our colleges and universities and they're going through there, by and large, I think the great majority of them, to purchase food, to buy sustenance, so they don't have an option, whereas in a way you could argue that it is optional as to whether you're going to attend a post-secondary institution.

I do have a question, though, for Mr Sterling. The first part of the motion describes a shopping mall and then you go on and it says, "and including any area that is close to establishments..." I guess my first concern is, what does "close" mean? It says, "and including any area that is close to establishments that serve food and drinks and is used by the patrons of these establishments as an eating area." What is it that you're saying by that?

Mr Sterling: My instructions to legal counsel were that I wanted to include all the common areas in a mall. In some of the common areas, as you know, for instance in the Rideau Mall in Ottawa, there's a large eating area where people buy from vendors from various parts, and I think in those areas any smoking should be done in one designated area so that other patrons who are eating at that time are not bothered by that smoke. That's why I suggested that it be dealt with under subsection (4) of the government's amendment in terms of allowing specified areas.


That's the way it was drafted after my instructions were given to legal counsel. I thought it would have been an amendment which just said "common areas in shopping malls," end of quote, finished. I didn't want to include restaurants in this. I didn't want to get into the debate on restaurants within a mall or inside a retail store. I didn't want to try to contemplate all of the other machinations that occur in a shopping mall.

I wanted to basically deal with the areas where people had no choice but to walk. If they were coming in the entrance and they were going to the library, or they're going to the store, or they were going to an eating establishment, they have to walk through a certain area and I just don't think they should be subjected to secondhand smoke. This was the result of legislative counsel in terms of that amendment. I'm quite willing to change it, as long as the intent is maintained, if better drafting can be found.

Mrs Caplan: I'm also very supportive of this amendment. Fairview Mall is in my riding and I know that North York does have a bylaw which is very progressive as far as the designation of no-smoking places, but smoking is permitted in the food court and there are big ashtrays and things in the main area and it can be quite unpleasant as you're walking through. I think this amendment that would designate shopping mall common areas perhaps is the way to define it. I'd leave it to legislative counsel to suggest changes in the wording.

While I'm aware of the section that allows for the designation of certain places in the government's amendment, just as the government amendment designates very specific places such as hairdressers and barber shops and that sort of thing, I really do think it is appropriate and I'm not concerned about designating common areas of shopping malls which are enclosed as areas where there would be an outright provincial ban as part of the anti-smoking legislation. I would urge the government to accept this amendment because I think it is worthwhile, it's thoughtful and I think it would be acceptable.

On the point Mr Sterling made, which is that you'll have time to have your discussions and consultations and so forth between now and proclamation and you can delay proclamation of that section should you wish, you can also refine it and define it by the regulatory powers that exist in the legislation.

I'm going to be supporting this amendment and I would encourage the government to accept it.

Mr O'Connor: I appreciate the comments. I would like to have some discussion with legal counsel to make sure that what we have for wording and everything is appropriate and how it would fit into our legislation. I don't know whether we need some time to deal with that or not, but --

Mrs Caplan: It's five to 5; maybe we could --

The Vice-Chair: Thank you. Mrs O'Neill.

Mr Sterling: Perhaps I could table this tomorrow morning we could vote on it right away.

The Vice-Chair: We have two people who have indicated they'd like to speak.

Mr Sterling: Oh, I'm sorry.

The Vice-Chair: Can we have them speak? Mrs O'Neill.

Mrs O'Neill: I would like to support this motion. The city I was in last week had smoke-free shopping malls as well. You would be very surprised what a difference that makes in the entire mall, just to the appearance of the mall: the cleanliness, let alone of the air, of the actual mall itself, the floor, the windows, because all of those things, as we know, are victims of secondhand smoke.

I do think it's possible. I think there needs to be some reworking of this particular suggested amendment because this business that Mr McGuinty questioned, "is close to establishments," I do think is going to envisage in my mind litigation as to what does that mean. We really don't know what it means.

I wanted to ask a question, and I guess it's of legal counsel. The exemption, then -- 13, 4 -- would permit a self-enclosed restaurant to have an exempt area. Would that be correct, even if we have the intent of Mr Sterling's amendment?

Mr Williams: I'm sorry. What section was that?

Mrs O'Neill: That's 13, 4 of your government amendments that we haven't dealt with yet, smoking in certain places. Would that be permissive, so to speak, in restaurants? And/or they have licensed bars in malls. Would an exemption be able to be permitted in an enclosed store, then? I think it would, but I just wanted to have it on the record. If we insert Mr Sterling's amendment and then of course have the government amendment presented and accepted, would the one permit the other to have the self-enclosed restaurant and/or bar?

Mr Williams: I'm sorry. I was having trouble finding the section that you were referring to. I assume you mean paragraph 9(1)13 and subsection 9(4). Is that correct?

Mrs O'Neill: Right.

Mr Williams: Okay, because I was having trouble finding what you were referring to.

Mrs O'Neill: Because it's not in the bill, of course.

Mr Williams: I'm sorry. Can you repeat the question? Now that I've found what it is, I can better answer it.


Mrs O'Neill: Could you please let me ask this question? I wanted to know if the amendment Mr Sterling is presenting would then, accompanied by this 13 and (4) of section 9, protect restaurants and/or bars and pubs in shopping malls that wanted to have a designated smoking area.

Mr Williams: I've got two problems. One, I don't have a copy of Mr Sterling's motion, so I'm a bit pressed to partly answer your question.

Mrs O'Neill: I'm not surprised.

The Vice-Chair: In view of that fact, can we stand this down until tomorrow?

Mrs O'Neill: Yes.

The Vice-Chair: Would your response be in order tomorrow morning? Is that acceptable? Agreed?

Mrs O'Neill: No problem.

The Vice-Chair: Ms Haslam?

Mrs Haslam: Actually, I like the amendment. I have some concerns about the ambiguousness of the serving food in areas, because I know that in Fairview Park Mall in Kitchener, there is smoking in the food court area and cafeteria area, and I want to be sure that's made very clear in the legislation.

Also, I understand Mr Sterling suggested delaying the proclamation of this should there be a large contingent of people coming forward with this being a problem. I accept that. I'm just concerned that in a political arena it's not used as a political football, having it come forward with a lot of complaints and then saying, "We told you this wasn't going to work." That's my concern. So I'd like to be very clear that that is my concern in supporting this particular motion.

The Vice-Chair: It's agreed then that Mr Sterling's motion to amend section 9, paragraph 8.1, is stood down until tomorrow. Agreed?

Mrs O'Neill: I agreed, with the condition that it's going to be looked at and reworked. Is that correct?

The Vice-Chair: Yes, that was your request and that is undertaken by counsel.

Mr Williams: I'll endeavour to look into the member's question.

Mrs O'Neill: Fine, thank you.

The Vice-Chair: Anything further at this time? If not, this meeting is adjourned until 10 am tomorrow, same location. Thank you.

The committee adjourned at 1659.