Wednesday 9 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

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

Haslam, Karen (Perth ND) for Mr Hope

Perruzza, Anthony (Downsview ND) for Mr Rizzo

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

Also taking part / Autres participants et participantes:

Ministry of Health:

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 1012 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. Welcome to the social development committee and clause-by-clause consideration of Bill 119.

We were dealing with a PC amendment to subsection 9(8.1) of the bill. Mr Sterling had moved that that amendment be stood down.

Mr Norman W. Sterling (Carleton): Mr Chairman, I'm going to introduce a similar amendment but in different words, and it would be more appropriate to do so when the government presents its motion to strike this whole section and replace it. In other words, I'm going to amend the motion of the government on the overall amendment of section 9, so I withdraw my previous one.

The Vice-Chair: Thank you. We'll proceed to the government amendment.

Mr Larry O'Connor (Durham-York): I move that section 9 of the bill be struck out and the following substituted:

"Prohibition of smoking in certain places

"9(1) No person shall smoke tobacco or hold lighted tobacco in any of the following places:

"1. A hospital, private hospital, psychiatric facility, nursing home, home for special care, charitable institution, home, or place belonging to a prescribed class, as referred to in subsection 4(2).

"2. A pharmacy or retail establishment, as referred to in subsection 4(2).

"3. A school as defined in the Education Act.

"4. A private vocational school as defined in the Private Vocational Schools Act.

"5. A college of applied arts and technology, a university or any other institution of post-secondary education.

"6. A day nursery as defined in the Day Nurseries Act.

"7. The premises of a financial institution.

"8. An establishment where goods or services are sold or offered for sale to the public.

"9. A video or amusement arcade, as defined in the regulations.

"10. A self-serve laundry.

"11. A shelter or station used as part of a public transit system.

"12. A hairdressing establishment or barber shop.

"13. A place that belongs to a prescribed class.

"Exception, outdoor areas in certain places

"(2) The prohibition set out in subsection (1) does not apply to an outdoor area that is part of a place referred to in paragraph 4 or 5 of that subsection.

"Exception, private areas in certain places

"(3) The prohibition set out in subsection (1) does not apply to the parts of places referred to in paragraphs 2, 7, 8, 9, 10, 11, 12 and 13 of that subsection that are not open to the public.

"Exception, smoking areas in certain places

"(4) The prohibition set out in subsection (1) does not apply to an area set aside for smoking within a place referred to in paragraph 1, 4, 5 or 13 of that subsection, if the area is identified as an area where smoking is permitted."

This is an amendment to section 9, and I think it responds to many of the people who came to this committee and made presentations asking for other areas to be included.

Mr Sterling: As indicated just previously, I move that section 9 of the bill, as set out in the government motion just read, be further amended by:

-- (a) adding the following paragraph to subsection (1):

"9.1 The common areas of an enclosed shopping mall, as defined in the regulations."

-- (b) amending subsection (3) by inserting after "9" in the second line "9.1"; and

-- (c) amending subsection (4) by striking out "5 or 13" in the third line and substituting "5, 9.1 or 13."

The Vice-Chair: Do you wish to speak further to the amendment to the amendment?

Mr Sterling: I withdrew my first amendment dealing with including shopping malls as an area where there will be some provincial regulation controlling smoking in these very public places to include it with the government's overall amendment to section 9. I believe the amendment put forward by the government to overhaul, so to speak, section 9 dealing with various different public places where smoking will be limited deals with the issue much better than the original section 9 in that it allows some exemptions for special areas to be set aside for people who might be smoking. It's a much more logical method of doing it, and that's why I've deferred to them in terms of putting the enclosed shopping mall within the framework of the new amendment put forward by the parliamentary assistant.

I'd like to thank the government for accepting my amendment, and I do believe there will be some support on that part.


If you could bear with me, Mr Chairman, I want to say early in the day, before we get into the heat of debate, that I was amazed to receive in the mail yesterday a piece of mail returned to me in support of Bill 71. This is from Eva Loraine Bryant of Mindemoya, Ontario, in Mike Brown's riding up in northern Ontario. This was sent out by me in 1986. Now, I don't want to blame the post office for this late delivery --

Mrs Karen Haslam (Perth): When was it postmarked?

Mr Sterling: Yes, there is a postmark. The postmark is actually this month, in 1994. Anyway, my point is that people who feel very strongly on this issue have been watching this debate for a long time, and I guess it's a lesson to all of us in politics that some people really don't ever forget what we do around here.

I did have about 30,000 of these sent back to me when I was pushing for Bill 71, which was the first controlling of smoking in the workplace and public places, but I want to thank Ms Bryant for her continued support. I suspect she might be watching today and I hope she appreciates the amendment I've just put forward here today to control smoking in public places.

Mrs Haslam: Wave, Norm.

Mr Sterling: One of my colleagues says I should wave, so how are you doing?

The Vice-Chair: Speakers to Mr Sterling's amendment?

Mr O'Connor: The government looks at this amendment as a friendly amendment. The anecdote is quite welcome, that there are really a lot of people interested in this issue. At times we get a little bit rambunctious in here, but we have to remember we are all very supportive of this legislation and the intention as we're bringing it forward. I appreciate Mr Sterling's working along with us, with a friendly amendment that would give us the ability to strengthen what he had suggested in earlier legislation he himself had introduced as a private member.

Mr Dalton McGuinty (Ottawa South): I'm going to support this amendment. It's a very good one. I have a question for Mr Sterling. We had the chance to speak briefly yesterday off the record. What would take place if, for instance, there are eating areas in some of our malls and there are people smoking in those eating areas? Would this permit that smoking to continue? If it does permit that to continue, I wonder about the effectiveness then, if I'm walking down a mall and there are people seated beside me and they're smoking but if I'm right here I can't smoke. I'm wondering about the practical implications.

Mr Sterling: I would agree with what your preference would be on this. One of the reasons this was redrafted in this form is that perhaps the amendment I presented yesterday was a bit ambiguous about what areas it did or did not cover. Unfortunately, when you're trying to include an area like this which has many different kinds of configurations, circumstances, it's difficult to define that in black and white in the short period of time we have to deal with this bill. What I've done is defer to the government to make the regulations dealing with that.

I would hope that any cabinet dealing with it would be very strict in terms of defining which areas are included in this. It was certainly the intent of my amendment yesterday that common eating areas in common food courts would be part of the area covered by this regulation. That is my intent. I'm going to have to leave that up to the goodwill of the people who draft the regulation, and you and I as opposition members will not have input into that because of the system we're involved in. I have faith that the government will follow the intent of the original amendment I introduced yesterday.

Mr McGuinty: Further to that, I want to make it clear for future reference that the government should consider the absurdity that would arise if we were to ban smoking in shopping malls but in food courts you could smoke, meaning I could walk by a smoker who's seated at a table who is permitted to smoke but I, standing there, could not. If we're going to go on this, we've got to go the whole hog. That's my personal feeling.

Mr O'Connor: I appreciate what's been said here. Mr Sterling's persistence in this matter needs to be commended. I would like to offer him the opportunity as an opposition member, a third-party member, to have some further dialogue when we get to the regulation-making part around this, so we can actually have the opportunity to have a little discussion with you, Mr Sterling, at that point.

Mr Sterling: I'd be pleased to assist you in that regard.

The Vice-Chair: Any other speaker? You've heard Mr Sterling's amendment to the government motion. All in favour? Opposed? Carried.

Now, speakers to Mr O'Connor's amendment to section 9, as amended.

Mr McGuinty: I have a number of questions I wanted to raise or points to make.

First off, I had drafted as well an amendment which would've brought about the inclusion of an amusement arcade. I congratulate the government for moving forward on this one. If the focus here is to make it harder for young kids to get hooked on cigarettes, amusement arcades and video arcades are predominantly frequented by kids, and that's a good move. I also support the inclusion of the bus shelter.

To go back to item 1 with respect to hospitals -- I'm not sure whether this came up before, but I just want to confirm this -- does this mean there's no smoking allowed on the hospital grounds outside?

Mr O'Connor: Yes, except for designated places.

Mr McGuinty: That comes under subsection (4), right?

Mr O'Connor: Yes.

Mr McGuinty: The other concern I had was with respect to item 3, "a school as defined in the Education Act." I gather we're all in agreement here that smoking should be banned throughout the school grounds, inside the building itself and on the school grounds. I pulled the Education Act to look at the definition of "school," and I'm wondering if we should be using "school site," instead of "school."

"School" is defined in the Education Act. It talks about "the body of public school pupils or separate school pupils" and it talks about teachers and staff members, so it's making reference to the people, but "school site" talks about the "land or interest therein or premises required by a board for a school, school playground, school garden, teacher's residence, caretaker's residence, gymnasium, offices, parking areas or for any other school purpose."

I'm just wondering why we didn't use "school site" instead of "school." Those are two distinct definitions found in the definition section of the Education Act.

Mr O'Connor: I'd like to turn it over to Frank Williams, legal counsel. I think our intent is pretty well known at this point.

Mr Frank Williams: I'd like just a few minutes to look at this, if we could stand this down to give me five minutes to have a look at the act and then come back to it.

Mr O'Connor: While he looks at that, when we broaden it to the school site, I don't know whether that would include schools under construction as a school site but not where it's being used as a school as defined under the Education Act. I imagine there are many different reasons they looked at it and came up with this definition.


Mrs Yvonne O'Neill (Ottawa-Rideau): I want to go back to yesterday's question about the exception in subsection (4) to determine who is going to determine the exception. Could we get some reading on that? I feel quite strongly that in certain of these locations, such as the post-secondary I referred to yesterday, there should be a real involvement and ownership on the part of the people who are using such a large facility as a post-secondary institution. If we want this bill to be successful, the actual owner-occupant should have some say, or certainly the municipal bylaws should have some input. I'm having some difficulty with being sure who is going to set the exception.

Mr O'Connor: I appreciate that concern. To get to the point we're at now in having this put in the legislation as it is, there was quite a broad consultation within the council of universities. We heard people coming to the committee who shared a different view with us. The Ministry of Education and Training, which has the responsibility for post-secondary institutions, has been involved in this process as well, and those people will be involved further as we go through the process to define regulations.

Mrs O'Neill: I think you understand part of my point, but what I'm suggesting, and I go back to what I thought very powerful witnessing, that on each individual site there should be something in the regulations that indicates that the people who live there or work there are involved and have input. Otherwise, this is an imposition from Queen's Park, which nobody likes.

That, I think, is one of the reasons the workplace health and safety smoking provisions have not been as successful, because they haven't had continual dealing with that at the actual site of the workplace. I remember when they first came in through the Ministry of Labour and there was a struggling to come up with something legitimate. Now the enforcement in many of those locations, as you know, has really fallen off. If we are only going to have imposition from Queen's Park, I think that's what will happen. If people have to deal with this through the workplace health and safety committee, deal with it through their student councils or their student governments, there will be much more ownership. I feel quite strongly about this.

Hopefully, the regulations will indicate that there will be the obligation on the part of the governance body. Whether that be a school board, whether it be a municipal council, whether it be a retail council, there should be some ownership developed onsite on this policy.

Mr O'Connor: Part of the ongoing process as we go through this, beyond the legislative role we are dealing with at the current time, will be the education role, and that's an important role. There will be many people involved in that process of education. Actually, a large number of the presenters who have come before the committee have been involved in the education role that goes beyond that.

I think what will be prescribed in the regulations -- and we'll talk to people as we draft those regulations; it won't be done here at Queen's Park by itself -- is the classes of places within these types of locations. At the same time, what Mr McGuinty put forward as a concern was that we may prescribe some of these places a little tighter than what is in the other parts of the community. For example, when we talk about a restaurant on a campus, are we going to prescribe something there that's going to be tougher than what is prescribed for the rest of the industry? And that's not the case. We're conscious of trying to maintain a level playing field. At the same time, there is the need for the consultation you're talking about.

Mr Sterling: When I read this legislation and the sections dealing with who's going to set out these smoking areas and who's going to be responsible for that, I read it in context of the experience of the bylaws in some of the municipalities which have made bylaws, particularly thinking of restaurants. My understanding would have been that the government's function would be to make regulations, for instance -- I'm just taking this off the top of my head -- to prescribe minimums or maximums for smoking areas in various kinds of establishments. Then it would be up to whoever controlled those premises to comply with those regulations that were set down. That would be the way it would fall out.

My question, though, that evolves from the discussion Ms O'Neill brings up, is who would be responsible for ensuring that the minimum for, for instance, non-smokers would be abided by? In other words, if it said three quarters of these premises had to be for non-smokers, who's going to enforce that? Perhaps you can help me, Mr O'Connor. Will it be the health officer, or should that be designated in the legislation? When you're introducing new regulations in society, I think it's much better if you identify who is going to carry the can on this so in fact they know that's their responsibility.

Mr O'Connor: A valid question, Mr Sterling. There are two elements to this. Part of it would be that the owner and operator of the facility would have some responsibility in this -- we had some discussion about that yesterday -- and of course the public health unit would have some responsibility in this area as well. Some of that is shared, and the ability is implied in the legislation. The owner-operator, I would think, would then comply.

Mrs O'Neill: Are you suggesting that the minimums and maximums, as Mr Sterling has just mentioned, are foreseen in the regulations? This was the way it was, if you remember, with the Ministry of Labour when this first came out in -- what? -- the early 1980s: 25% had to be smoke-free, I think it was. There were minimums and maximums set. I think it's become very loose now in its enforcement. Is that what you're anticipating?

Mr O'Connor: At this point, what we would be establishing would be the minimum standards right across the province for non-smoking areas, and then the municipalities can designate further than that. Of course, any organization can always decide to set its own policy. I used the example of the Mount Albert Lions Club up my way. A new facility opened up, and their policy is that it's a non-smoking facility. It's a brand-new facility and they want to keep it clean.

Mr Sterling: One of the questions I had on this section is one there's a lot of debate about. I wonder why the government didn't include it, and I was somewhat tempted to include it as another public place: the whole area of arenas, where young people are inhaling, because of their exertion, at a much more rapid pace than people who are not exerting themselves physically. I think I have part of the answer, the reason being that it's difficult to describe what is or is not an arena. If that's the case, perhaps we could move to amend this section in a similar fashion to the way we did with shopping centres, ie, work out the details of how we define what is included in the arena or what is not included.

I'm particularly concerned about the areas where children are exposed, and particularly where they are physically exerting themselves: in a gymnasium, when they're exercising; when they're skating, roller skating, playing ball hockey or whatever. Some of our arenas across this province don't have non-smoking provisions. A lot do, a lot of municipalities have taken those steps, but some don't, and I don't think the children who are occupying those facilities should be subjected to secondhand smoke. Perhaps you could answer why this wasn't included.


Mr O'Connor: I appreciate your concern. We're all concerned about the ETS. We do have the ability in paragraph 13 to move that way within regulation. It's something that will definitely stir up community debate, and I think the wish here is that the community should be involved in that process as well. At some point down the road we do have the ability to do that as well, but it's something there needs to be some community debate on, and hopefully the right decisions will be made.

Mrs Haslam: That's what I wanted to know, if it could come under "a place that belongs to a prescribed class." There will always be something we can add, and my concern is that we'll come up with another one and another one and another one and we'll be here for a week discussing what new things. We could say bingo halls, for instance, should be added into the legislation too, but they weren't part of the original discussion. I'm sure there would be a lot of input from people out there on that particular one. I was going to ask if what Mr Sterling is suggesting could be looked at along with some other ideas and whether that would fall under 13, "a place that belongs to a prescribed class."

Also, we talked yesterday about subsection 9(4), "exception, smoking areas in certain places," and I'd like clarification. For a couple of minutes we talked about whether the area is identified as an area where smoking is permitted, and there was the question about who says that. Let's go back to the mall question. If the mall says, "We are going to designate a smoking area in the cafeteria eating area," provided the criteria in the regulations are not such that they negate that, does that take precedence? Or, if the municipality has set criteria for where smoking is permitted, is that what is governing here, or will there be criteria in regulations that say to these places, like the mall, like the hairdresser, like the video arcade, where smoking is permitted?

If you go back to "if the area is identified as an area where smoking is permitted" in 9(4), it's 9(1)4, the private vocational school, (1)5, the college, and (1)13, "a place that belongs to a prescribed class." A prescribed class might be the arena. I'd like some clarification on how you would look at who identifies an area where smoking is permitted.

Mr O'Connor: I guess you're testing to see how well along we are with some of the regulations, and also how up I am on some of this at this point.

First, to help illuminate some of what's happening in terms of recreational places, and this may help Mr Sterling as well, the Waterloo health unit has received a grant to develop what can be used for municipal bylaws around recreational areas and community centres. That would be bylaws, not necessarily municipal. Of course, if it's a private place the operator of such a place can designate.

When it comes to our legislation, if the municipal bylaw goes further than our legislation will, the municipal will take precedence. If the owner of an establishment had a policy in place and that policy is weaker than the municipal bylaw, the municipal bylaw will come in place. If our legislation is stronger than either of the other two examples I've used, ours would take precedence. It's always the stronger offering more protection for the non-smokers that will take precedence.

Mrs Haslam: It doesn't mention regulations, and that's why I'm asking. It just says exemption "if the area is identified as an area where smoking is permitted."

Mr O'Connor: Good question. There will be an amendment that I'll be moving very shortly to 10 that will clarify that, I hope.

Mrs Haslam: Okay. I haven't seen that one yet.

The Vice-Chair: Any other speakers? It's been suggested that Mr O'Connor's motion to amend section 9 be stood down for a report from Mr Williams at a later time, is that correct?

Mr Williams: I've spoken to Mr McGuinty. I'm wondering if we should wait till he comes back into the room. I think he's satisfied with the definition the way we have it now crafted, but I would rather wait till he's here before I make any further comment.

The Vice-Chair: Is it in order to recess for a few moments?

Mrs O'Neill: I don't know how long he's going to be, because he indicated what I should do about the next amendment to come forward.

The Vice-Chair: If you're ready to proceed with the Liberal amendment to the government's amendment, we could deal with that now.

Mr Sterling: If Mr McGuinty is going to be gone for a considerable period of time, we should press on.

Mrs Elinor Caplan (Oriole): He just went out to make a phone call.

Mrs O'Neill: I don't think he'll be too long, but he didn't tell me to tell us to wait on this one.

The Vice-Chair: Mr McGuinty has returned. We were wondering about your amendment to section 9, paragraph 8.1. Did you wish to present that?

Mr McGuinty: I'm asking if we could stand it down at present, Mr Chair. I might also indicate that I had the opportunity to speak with legislative counsel regarding the definition of "school" and I'm satisfied that it is all-encompassing and will cover all the grounds.

The Vice-Chair: Will you be proceeding with the Liberal amendment, paragraph 8.1?

Mr McGuinty: Not right at this time.

The Vice-Chair: To stand it down, it's in order to move it and then stand it down, if you're going to proceed with it later.

Mr McGuinty: That doesn't preclude me from withdrawing it subsequently, Mr Chair?

The Vice-Chair: No. It would be in order to do that. Move it now, and we'll stand it down along with the government's amendment.

Mr McGuinty: I move that subsection 9(1) of the bill, as amended by the government motion, be amended by adding the following paragraph:

"8.1 The premises in which a member of the College of Physicians and Surgeons of Ontario practises medicine."

The Vice-Chair: And you wish that stood down at the present time?

Mr McGuinty: Yes, please.

The Vice-Chair: And it's agreed that the government amendment be stood down as well at this time.

Mr O'Connor: No. I think we're ready to move forward with it.


The Vice-Chair: Any further speakers on Mr O'Connor's motion to amend section 9? If not, all those in favour of Mr O'Connor's motion to amend section 9? All in favour? Opposed? Carried.

There is a government amendment to section 10.

Mr O'Connor: Yes. I move that the bill be amended by adding the following section:

"Smoking areas

"10.1(1) The person who owns, occupies, operates or maintains a place referred to in paragraph 1, 4, 5 or 13 of subsection 9(1) may set aside for smoking an area within the place and identify it as an area where smoking is permitted, if the prescribed criteria are met.

"Area that does not meet criteria

"(2) A person described in subsection (1) shall not identify an area as an area where smoking is permitted if the prescribed criteria are not met."

That just helps to clarify some of the concerns we heard from Ms O'Neill and Ms Haslam.

Mr Sterling: I have not read this motion, Mr Chairman, but I want to amend the government motion. I have discussed this briefly with legal counsel and he agrees with me that it's appropriate.

I move that section 10.1 of the bill as set out in the government motion be amended by amending subsection 10.1(1) by inserting after "5" in the second line "9.1."

In other words, I've inserted among the numbers 1, 4, 5 and 13, also 9.1, which is the shopping centres.

Mr O'Connor: That's a friendly amendment. It brings in his other concerns around the mall.

The Vice-Chair: Any further speakers? If not, all members in favour of Mr Sterling's amendment to the government's amendment? Opposed? Carried.

Now, Mr O'Connor's amendment as amended. Any discussion?

Mr Jim Wilson (Simcoe West): Perhaps the parliamentary assistant could briefly give us an outline of some of the prescribed criteria the government is contemplating.

Mr O'Connor: At this point, a person who owns a place or maintains a place may have a place that is closed off, that's used only for their purposes. It may be an area where they have an office that's not a public place but just a place they maintain for their own purposes, which could be part of something designated smoke-free. There could be an exception there that doesn't take away from the prescribed criteria.

Mr Sterling: There may be contemplated in this section criteria such as many people have desired in the past and want, that any smoking area, for instance, be separately ventilated to the outside or whatever.

Mr O'Connor: That's right.

Mr Sterling: I have two questions around the section, and maybe legislative counsel can help me here. First, can you prescribe different criteria for the different classes we've included? In other words, you might prescribe separately ventilated for -- and I'm just picking these out of the air -- 1, 4 and 5, but not 9.1 and 13. Can you do that?

Mr Williams: It's possible. There might be different criteria for different types of places. That's correct, depending on the type of premises.

Mr Sterling: I think it's necessary to have that kind of flexibility, because you're talking about different kinds of enclosed areas and that kind of thing. Can you, under this section, prescribe different criteria for buildings that are built, for the sake of argument, after January 1, 1995, and those before?

Mr Williams: I hadn't thought of it from that perspective, but I don't see why not.

Mr Sterling: It's my view that it would make a lot of sense for the government to move quickly in prescribing, for instance, separate ventilation for anything that is going to be constructed in the future, so that people will know when they're getting into building a new hospital, a new shopping centre etc, if they are going to provide a smoking area, they're going to have to provide separately ventilated areas. That's my own feeling on it.

I don't think you can move as quickly, or you may decide not to move as quickly, in going back to existing buildings because the cost may be prohibitive in terms of providing that same standard for established buildings as it would be for new. You can usually do something much more reasonably if it's not renovating an existing premise.

I'm satisfied that the section is necessary and we will be supporting it, but I would hope the government looks at moving quickly to have fairly stiff criteria for smoking areas, particularly in new buildings.

Mr O'Connor: Thank you for your support, Mr Sterling.

The Vice-Chair: Any other speaker? If not, those in favour of Mr O'Connor's motion to amend section 10, as amended? All in favour? Opposed? Carried.

Does that deal with section 10 in entirety? We have approved the government's motion to amend section 10, so it's the new section 10 that's approved. Mr Williams, would you like to assist?

Mr Williams: I was just going to suggest that you might want to move that section 10 be carried. There's no amendment to section 10. Section 10.1 is an addition to the bill.

The Vice-Chair: Then section 10, as printed, is still in order. That's what I was confused about. Fine. That clears it up.

Section 10. All those in favour of section 10 in the bill? Opposed? Carried.

Section 11: There's a government amendment.


Mr O'Connor: I move that section 11 of the bill be amended by striking out "or that imposes the greater penalty" in the fifth and sixth lines.

The Vice-Chair: Do you wish to comment?

Mr O'Connor: The current wording of the bill is "the provision that is more restrictive of smoking or that imposes a greater penalty prevails." If one piece of legislation was more restrictive of smoking and the other had a more restrictive penalty, the enforcement could be compromised.

Mr Jim Wilson: It would be a larger penalty versus a more restrictive smoking rule.

Mr O'Connor: Yes, and it's the recommendation we've received from the Attorney General's office.

Mr Sterling: I support this. You could have a much less restrictive policy or bylaw with a huge penalty. Then you're caught in the conundrum of which law really supersedes the other, the one with the bigger penalty or the one with the more restrictions. Therefore, I think striking out the penalty is the proper way to go.

The Vice-Chair: Does anyone else wish to speak? If not, those in favour of Mr O'Connor's motion to amend section 11? All in favour? Opposed? Carried.

Those in favour of section 11, as amended? Opposed? Carried.

Section 12: All those in favour of section 12? Opposed? Carried.

Section 13: There's are government motions to amend.

Mr O'Connor: I move that subsection 13(4) of the bill be amended by striking out "normal" in the third line and substituting "regular."

Would you like me to move the further --

The Vice-Chair: No, let's deal with this one. Any comments regarding this one? Do you wish to explain?

Mr O'Connor: Again the intention here is clarification for consistency purposes requested of us by the Attorney General's office.

The Vice-Chair: Any questions or comments? All those in favour of Mr O'Connor's motion to amend subsection 13(4)? Opposed? Carried.

Further amendment?

Mr O'Connor: I request that we vote on section 13 subsection by subsection, because there is one I would like to have changed slightly.

I'd like to move that section 13 of the bill be amended by adding the following subsections:

"Same, vending machines

"(8.1) An inspector conducting an inspection may open a vending machine that is operable or is in a place to which the public has access, and no person is liable for damage done to the machine in connection with the opening.

"Seizure and forfeiture

(8.2) The inspector may seize any tobacco and money found in the machine; the tobacco is forfeited and shall be dealt with as the Minister of Health directs, and the money is forfeited to the Minister of Finance."

This is just enabling power to allow the inspector permission to open these machines.

Mr Jim Wilson: But I think the power given to the inspector under this amendment is excessive, in fact draconian, given that you're taking someone's property. Under the powers of this amendment the inspector could take a crowbar, totally wreck the vending machine and make it useless to the operator of that machine. Although the government has decided to ban tobacco vending machines everywhere in the province, the last hope for some of these people would be to sell those machines to other jurisdictions that still allow them. The inspector can totally wreck the vending machine, and the government has put in this draconian phrase that "no person is liable for damage done." That's bloody awful, and I think it's excessive when you're dealing with somebody's vending machine.

I would like a comment from the parliamentary assistant. Given that they've refused the PC amendment to allow compensation to these vending machine operators that you're putting out of business and now you can go around destroying their machines if need be, I think that's very excessive.

Mr O'Connor: I appreciate your concerns, Mr Wilson. The fact is that at this point it would be a prohibited machine. We hope that by spelling out the extended time frame for people, they will know when this legislation is coming into place so that they've got something they can work towards to have this machine removed.

It would be certainly the intent of the government and the inspector that they would approach the owner and the operator of this machine and ask them to open it. The key here is that it would be after the deadline, and these machines would be a prohibited machine at that point anyway. I hope that through a very public process we'll be able to identify to these owners and operators of these machines that they have a machine that is no longer going to be allowed in the province of Ontario.

Mr Jim Wilson: If I might have a supplementary, Mr Chairman, it seems to me that yes, you're dealing with a machine that's prohibited under this section. But when somebody steals a bicycle and the police find the stolen property, they don't destroy the bicycle. They try and find the rightful owner and give it back in good condition so the little boy or girl will get their bicycle back. In essence, you've got property that's the subject of a crime, and you don't go around destroying the property. Why can't you treat these vending machine -- I just think it's extremely excessive to give a government employee the right to go in and smash up a vending machine.

Mr O'Connor: The key here, Mr Wilson, is that at that point we have a machine that has tobacco that shouldn't be sold through that venue --

Mr Jim Wilson: But you don't know that till you open the machine and you've already destroyed the machine.

Mr O'Connor: The purpose of this section is that the machine can be opened. Hopefully, the owner of the machine will have complied already, but in the case where they haven't been able to comply, the inspector would be able to approach the owner of the machine and tell them this machine is prohibited and then remove the tobacco products.

The key here is that we're trying to work with these people, not work against them. We're going to work with them as much as we can. In a situation where we have a machine in contravention, we have to have the ability to see whether the machine is illegally selling these tobacco products.

Mr Jim Wilson: What comes first, though? Are there any probable grounds? What if you open the machine and there's nothing in it and you've already wrecked it? It is quite possible. Some of these vending machine people aren't going to go to the expense of retrieving their vending machines, possibly, for quite a while. The one in Orillia particularly will be out of business. I don't know how in the world they're going to have the money to go around retrieving their machines.

You may find some sitting around in beverage rooms who think they're conforming to the federal act of Canada and aren't aware of your particular act. You're going to go in and wreck their machines without any probably grounds, without knowing whether there are any cigarettes in them or not. Does the inspector at least have to buy a pack out of the machine first to know that there was anything in it?

Mr O'Connor: The key here is that, first of all, unlike the federal government's ban in the areas it has prescribed, which is everywhere except licensed premises, we are giving them a date. They'll have a date they'll know they're going towards. I don't think there's going to be a cigarette vending machine operator in the province who isn't going to know that on December 31 their machines will be prohibited in the province of Ontario. It's that rare exception that may be the case.

Mr Jim Wilson: Well, obviously you're preparing for some sort of exception or you wouldn't ask for these powers in the act.


Mr O'Connor: If there were a way the machine could be made inoperable by the owner of the machine, if it was on the premises, and it could be shown to be inoperable, I guess at that point they wouldn't be in contravention of the law if it were inoperable. And it can be made inoperable by the owner of the machine.

Mr McGuinty: I have concerns about how far-reaching the section is. Why is it necessary to open a machine?

Mr O'Connor: How else will you know whether there are tobacco products in there? What we're dealing with is a machine whose whole purpose is the dispensing of tobacco products, which is illegal.

Mr McGuinty: Maybe I'm missing something here, but if I've got a vending machine and I want to sell cigarettes, how am I going to let people know there are cigarettes in there without making that apparent?

Mr O'Connor: Some machines are designed in a fashion that you can't tell whether there are tobacco products in them. If we have an operable machine sitting there without a way of knowing whether there are tobacco products in it, that machine is in contravention of the law.

Mr McGuinty: How would somebody know there are cigarettes in a machine if that wasn't advertised somehow on the outside of the machine?

Mr O'Connor: In many cases, there's no way of knowing whether there are tobacco products in that cigarette vending machine until you start feeding your coins into it. After December 31, that machine is going to be prohibited, and you don't know whether that machine contains the tobacco products.

The key here is that what we've got is an extended period of time, given the concerns we've heard, of December 31. We've got a date laid out. The federal government has banned vending machines right across the country in every place except licensed premises, which caused a problem here in the province of Ontario. After hearing from many witnesses saying young people do have access to these licensed premises and we have a problem with that here, and then hearing the concerns that these operators of these machines want to comply with the law and they're trying to comply with the federal law, that never even gave them a date -- they had suggested that the date might be July 1 and that's when the law would be proclaimed -- what we're giving them in this legislation is a date to work towards.

I don't think these operators are going to be out there trying to break the law intentionally for any extended period of time, because what we've got here is an opportunity for them to see. They've got till December 31, unlike the legislation that came out of Ottawa that didn't tell them when.

Mr McGuinty: I'm not disagreeing with you.

Mr O'Connor: In fact, the ads went in the newspaper telling them they were banned after they had been banned. We're trying to do this in a fashion that's going to be more open.

Mr McGuinty: With the greatest respect, I don't see how it's in any way productive to keep referring to what's happened in terms of the timing of the federal legislation in so far as my question's concerned. We have to presume that the people who own and operate these machines now will be innocent on January 1, 1995. If I'm an inspector and I have two options, to put some loonies in the machines or break it open with my crowbar, I think I should be putting some loonies in the machine. That's in keeping with the presumption that the person who owns that machine is innocent.

Okay, you can't tell whether there are cigarettes packages inside. Why wouldn't we put some loonies in the machine? Why wouldn't we require that the inspector have reasonable grounds upon which to believe there are cigarettes inside the machine before you go in with a crowbar and cause damage?

Mr O'Connor: Following some of the assumptions you've made, what would happen if the inspector didn't have these powers and the inspector put the loonies into this prohibited machine in the province of Ontario and out came the cigarettes?

Mr McGuinty: Then you can use the crowbar.

Mr O'Connor: So you're saying this is a good amendment if it spits out -- I would think the inspector's going to use some reason, as you're suggesting here.

Mr Jim Wilson: Oh, come on. Not always.

Mr O'Connor: I would think that before the inspector is about to go and take what appears to be an operable machine, he's going to go to the owner of this machine even before that point.

Mrs Caplan: But you don't require in the amendment the concept of reasonable grounds. If you had the test of reasonable grounds, what Mr McGuinty is saying would follow. Your amendment gives them the right to break open the machines without examining first, without having reasonable grounds. In jurisprudence in Ontario, the presumption of innocence is a basic fundamental of our justice system. I think we all agree that if the machine contains cigarettes you should have the power to open and remove them, but there should be reasonable grounds before you do that.

Mr McGuinty: I agree with my colleague. It's fine to give the inspector this kind of power, but there has to be some kind of general limitation to ensure that it can't be abused. For instance, this wording doesn't even say it has to be a cigarette vending machine. It just says, "An inspector conducting an inspection may open a vending machine." There's no definition of "vending machine" in the definition section of Bill 119, so we haven't even confined it to a cigarette vending machine, first of all.

Second, I think there should be something, and I hope the parliamentary assistant is open to a friendly amendment on this, which requires that the inspector have reasonable grounds to believe that the vending machine contains cigarettes. It's as simple as that.

Mr O'Connor: Mr McGuinty, in some of the other types of machines you refer to, most often they display the product, usually through glass. Vending machines whose sole purpose is to sell cigarettes would be the machine we're talking about, and they're pretty standard in what you see. The key here is that when the inspector feels this machine, an obvious cigarette vending machine, may contain cigarette tobacco products, an operable machine that could be problematic -- it's in contravention of the law. I'll have to check this out with legal counsel, but perhaps we could amend it to read something like that an when conducting an inspection, "where an operator or owner refuses to open the vending machine, and the inspector has reasonable grounds to believe that tobacco products are in the machine, may open the machine." I think this would address your concerns.

Mr McGuinty: Very much so.

Mr O'Connor: I'll have to ask legal counsel if --

Mr Williams: You got it right, subject to legislative counsel correcting my --

Mr O'Connor: We may have to stand this down so we can rewrite it to include that and get some other advice in case we have some problems with that. That would address your concerns?

Mr McGuinty: Yes, it would.

Mr Sterling: I was going to move an amendment. I defer to legal counsel, but my amendment would have added, after the word "opening" in subsection (8.1), "if tobacco is found therein." In other words, you only give freedom from liability if in fact the inspector finds tobacco in the machine. If he doesn't find tobacco in the machine, then the owner of that vending machine is presumably entitled to compensation for the damage done.

Surely to God we're not saying that an inspector goes in and acts either rationally or irrationally, breaks open the machine with a crowbar because the owner is not there or the key isn't there or whatever, and it was candy bars, not tobacco, and they can walk away and say, "Sorry, you're out of luck. I'm covered by the legislation." I don't think we should do that.

I don't know which is preferable, the reasonableness test or -- I'm concerned about the liability for damage done. Even if he thinks he's reasonable or has reasonable grounds, I don't think the crown should be absolved of paying for the machine.


Mr Williams: I would prefer the amendment I suggested to the parliamentary assistant, for the following reasons. The problem with the motion you're moving, Mr Sterling, is that you could get into the conundrum where, as you say, you go into a premises where the owner or operator isn't there, so you have nobody you can ask. You stick the loonies in the machine and cigarettes come out, so you've got reasonable grounds to believe that there's tobacco there. You open the machine and you find you got the last pack. That puts the inspector in a rather awkward position.

I think there has to be protection for the inspector as well. If he opened it and there was no tobacco, then the inspector would be liable. That's the problem I have with that. I'd rather leave it on reasonable grounds to believe there's tobacco, and that would be the grounds you got from putting the loonies in and having the tobacco package come out of the machine.

Mr Sterling: If you put the loonie in and get the tobacco out, why would you break open the machine? You've got your evidence.

Mr Williams: The point is that you'd want to remove the tobacco from the machine so nobody else has access to the machine and can get cigarettes.

Mrs Haslam: They can't see through machines. That's what I was asking clarification on, because I'd rather go with the reasonable doubt. If we can get a friendly amendment that says "reasonable doubt after inspection" or after they are sure there's tobacco in there, I would like to see that.

My questions were around the same idea. If an inspector comes in, if he drops loonies in and gets materials, if he asks the operator or owner to open it and the operator or the owner doesn't open it, then he has reasonable grounds to break it open. I would imagine that is the situation inspectors would be in. We're talking public health inspectors.

I think of the police, who say to you: "I have reasonable grounds to suspect there's dope in the trunk of your car. Open it up." The person says, "No, I won't." Than they go ahead and open it up and they aren't held liable, is my understanding; they aren't held liable for the damages.

I think we should allow the same situation. Although they're not police, they are inspectors, and we should be giving them the grounds and the reasonableness to look at this type of machinery and not hog-tie them. I would rather err on that side and go with the original amendment Mr McGuinty was talking about, looking at reasonable grounds, and if there are reasonable grounds and the owner or operator will not open the machine, they certainly have the right to open that machine.

I don't anticipate the public health inspectors travelling around with a crowbar in their hands, either. I would imagine they will be doing inspections. They will have reports of a machine from someone in the public. They will then contact the owners and say, "Is this machine operable or not?" I find public health inspectors do their job well, and I wouldn't anticipate that they're going to go in and damage a machine unnecessarily.

Mrs Caplan: I think this is a really important debate. As we give inspectors powers, we have to be very careful as we draft laws that we don't assume behaviour that is going to ensue. Anything we can do in legislation that is prescriptive about the kind of behaviour we expect, especially when we are limiting rights of the individual and the public and doing that in the public interest -- it's still very important for us not to overrotate and to give powers to inspectors which are going to impact on our civil liberties in a way which was uncontemplated or unintended as a result of the way we've drafted legislation.

While we may sit around this table -- and many of us have had experience with public health inspectors -- and feel that by and large they do a very good job, I don't think we can assume a certain behaviour in the future if they have a power in legislation that we have given to them.

I think the amendments that have been suggested by Mr McGuinty are very important, because they will protect the rights of the individual and they will ensure appropriate behaviour by inspectors who are being given unprecedented powers in this legislation. I think we have to do so cautiously and carefully and not assume anything which we can prescribe, so that the result will be as intended. I feel very strongly about that. I know our job as legislators is often to intrude on individual rights in the name of the public interest, but I think we must be careful, very careful, to do this in a way which is as thoughtful and careful as possible. So I encourage support for Mr McGuinty's amendment, which would require reasonable grounds before you could have the powers of, really, search and seizure.

Mr Jim Wilson: This is tag-team theft on amendments, I think, between Caplan and McGuinty and O'Connor, but none the less, it was my idea. Having said that, I think we also have to have an onus of liability on the inspector. I want to follow up on Mrs Caplan's comment, because I agree: You can't assume the behaviour of health inspectors.

We owned a general store for several decades in the family, my grandfather and father and his brothers. My grandfather used to shout, yell and threaten the health inspector out of his store. He always found them so unreasonable. It was not unusual to have a very bad relationship between the local health inspector or the local liquor inspector and businesses.

MPPs should be aware that we get complaints from time to time about the enforcement by inspectors in premises in our ridings and we're asked to take a reasonable look at what's going on. Because we can't interfere directly with their powers, we often are called upon to write the minister to review what's going on.

I agree that you just can't assume how these people will behave. Many of them have never run businesses, and they come in and have a public health bias. When you're dealing with a butcher shop area, they may ask for things that are extremely unreasonable and difficult for the business person to do or the butcher to do. They'd never been a butcher, so as we found in our business, they didn't understand that it's damn near impossible to clean your knife after every steak you cut and there's a lot of to and fro. Fortunately, in our public health acts now, there is some flexibility for inspectors to hear out the business operator's side of things.

For instance, I can remember a requirement that public health inspectors thought up to wear mesh gloves. Well, it turned out that mesh gloves, when you were butchering meat, were more bloody difficult and caused more accidents, but some bureaucrat thought this was the way to protect the hands of workers. It turns out you ended up slashing your wrists because the blade would go up the mesh and up to your arm and then you had to wear the things up to your underarm. It's an example of a very ridiculous thing thought up somewhere along the line by someone who had never been a butcher.

Mrs Caplan: But were they smoking while they were cutting the meat?

Mr Jim Wilson: Actually, in those days you probably did smoke, and God help your hamburger.

I just wouldn't assume behaviour at all, because we often appoint people to these positions whom it takes time to teach that you also have to put your feet in the shoes of the people you're inspecting so you understand their point of view.

Mr Sterling: Mr Chairman, I'm going to put forward my motion, notwithstanding what legal counsel has said. I'll tell you why I'm going to put it forward, that generally speaking, when you compare the resources of the people who may own a candy bar machine or whatever to the resources of the government of Ontario, there is really nothing there. That somebody would break open a machine after they had taken out one pack of cigarettes and there would be no more there -- well, the chances of that happening are about one in a million.

Maybe the amendment isn't perfect in protecting the government, but compare who we're protecting here, either the poor guy who owns a candy bar machine which is mistakenly opened by an inspector who breaks the machine -- why should that inspector be protected, who may have the time to go to court to argue that he had reasonable grounds, or why should the government be protected from compensating the poor guy who owns the candy machine that was busted by the health inspector?


There has to be a huge argument that this is going to inhibit a health inspector from opening the tobacco machine, and I don't think it would. If he thought there was tobacco but there is a mistake -- the likelihood of compensation in these kinds of things is so remote, but I think it's important that we don't give in this section what to me is a signal to inspectors that, "You go in, you take a crowbar to a machine, regardless of what it is, and you're protected, and we're protected, in legislation."

That's what the words in this amendment say. If you read them and you are an inspector, you'd say: "I've got a lot of power here. I can walk in and I can wreck this machine." I'm talking about the poor inspector. I'm not talking about the majority of them. I'm talking about the odd inspector you get who becomes a little authoritarian and takes matters further than he or she should.

So I move that subsection 13(8.1), as set out in the government motion, be amended by adding "if tobacco is found therein" after the word "opening" in the last line of subsection (8.1).

The Vice-Chair: That's your amendment, Mr Sterling, adding those words? Mr Sterling has moved an amendment to Mr O'Connor's motion.

Mr McGuinty: Could I have the parliamentary assistant read the amendment he read earlier, just so we're clear about what we're dealing with here?

Mr O'Connor: The amendment I read earlier hasn't been amended. That was just a suggested amendment, so I haven't actually amended my amendment at this point. Before I do that, probably the easiest way, in the light of what you were thinking, and giving legal counsel a chance to rewrite it, would be to withdraw my amendment and re-enter it with the suggestions you've made. That's where we're at, at this point.

Mr McGuinty: My concern would be that the wording contain something to the effect that you've got to have reasonable grounds. If he has reasonable grounds, the inspector and the government should be absolved of any liability. That's the critical test. If he didn't have those reasonable grounds, he or she is in trouble, and the employer, the government, is in trouble. That's the usual rule that's applied in these cases, certainly with respect to policing. That's not a test that is easily met. If an inspector has information from a number of people that this machine contains cigarettes -- it may not even be plugged in at the time -- as long as that information is reliable, we have to allow him that authority. I don't see any reason to deviate from the usual rule, which is as long as you have reasonable grounds. That's the test to be met, that has to be satisfied. If it's not, you're in the hot seat.

Mr O'Connor: Mr Chair, to further help with what Mr McGuinty's trying to add here, and I appreciate his support, I'd ask legal counsel to --

Mr Williams: I've had some discussions with legislative counsel and she's now trying to put some words together. I don't know how you want to do this, move on to another section or continue the debate on this issue.

The Vice-Chair: We have additional speakers, so perhaps we could continue.

Mrs Haslam: I would agree that's the kind of amendment I'd be looking for to support.

I'd like to know for my own interest, who pays, for instance? My concern is that you leave an inspector out to dry if that happens. I'd like some clarification on this. If he has reasonable grounds and that's proven, that's fine, but if, on the other hand, he goes in and no tobacco is found, who pays for that? Is it himself or is it his employer as the public health unit or does it come back to the government? I need some clarification on that before I'm ready to say okay, let's go that route, because I'm not in favour of that route. I would like to see it more along the lines that reasonable grounds must be adhered to.

Mr Sterling: As far as I can determine in terms of what happens here, I would have to see the wording of what we're drafting. But my concern is that whether there are reasonable grounds or not, what we're talking about here is not a major, major offence like dealing with drugs, dope or whatever. If, even with reasonable grounds, there's no tobacco found in it, I don't believe the citizen should pay. I guess this is more to do with victim rights or whatever it is.

Mrs Haslam: What is the comeback? If there's reasonable grounds that I am smuggling bicycle pumps and I say, "Sorry, I don't have the keys and I'm not going to open this; I don't have any bicycle pumps in there," and they open it, damage my lock, and there are no bicycle pumps there, what's my comeback? Nothing.

I'm saying this should be handled in the same way as whatever the rights are I have as an individual in other jurisdictions or under other legislation. I am not about to say a public health inspector has less rights than our own police force or that I have more rights because I have a tobacco vending machine than if I had a trunk that was pried open and I didn't have bicycle pumps in it. That's what I'm asking legal counsel for clarification on.

As an individual, in the case where I have no bicycle pumps, where my trunk has been opened and they say, "Oops, sorry, Karen, no bicycle pumps," what is my comeback on the police or the customs people who open up my trunk and there's damage? Is it a court case? Do I have to sue? In which case, that should be what we look at in this legislation.

Mr Williams: I'm certainly not an expert in this area, but my gut feeling is that if there's not reasonable grounds, whether it's a police officer or an inspector in this sort of circumstance, there would be some liability. Normally, I would assume that the liability would be borne by the employer of the police officer or the inspector. By adding some phrase that refers to "reasonable grounds," it would give the individual some legal rights if in fact there were no reasonable reason to break into the machine.

Mr Donald Abel (Wentworth North): What if there were reasonable grounds?

Mr Sterling: That's the problem I'm faced with. Let's say the reasonable grounds are that somebody said, "I got tobacco out of that machine."

Mrs Haslam: Or "I saw somebody get it."

Mr Sterling: The poor guy who owns the candy machine isn't even party to any of this. He's absent from the premises. The health inspector says: "My reasonable ground was the fact that this outstanding citizen said they got tobacco. I opened it up, and there's no way tobacco could be sold. I broke the machine. Under this section I don't have to pay." Why do we have "no person is liable for the damage to the machine"? Is that a normal section you put in every kind of section like this?

Mr Williams: If you don't put something in with respect to liability, then the inspector could be liable for breaking open the machine where there are reasonable grounds.

To put some reality into this situation, I would hope that come January 1 or February 1, there's no reason for an inspector to break into any machines, that these machines are gone. I would hope, six months after the first of the new year, that there are no machines around so in essence this whole section becomes redundant.

In practice, an inspector would go in, ask an operator to open the machine, and that would be the end of it. The tobacco would be removed.


Mr Jim Wilson: Mr Chairman, in terms of the new subsections 13(8.1) and (8.2), if people refer to section 16 and the government's amendment thereto, currently in section 16 there is the ability of the inspector to seize the entire vending machine, but also the onus to return it within a reasonable period of time. You have to look at what the government's also proposing in an amendment to subsections 16(2) and (3), where there's a reasonable grounds test. I think a reasonable grounds test also must be contained in this amendment, and I understand that's the drafting that's going on now.

Also, in the case where the machine is damaged, I don't see why we can't have a financial liability on the crown. I ask legal counsel, if the inspector is found not to have had reasonable grounds, what penalty is imposed? Does the court just say, "I guess an apology is good enough for wrecking that machine"?

Mrs Haslam: That's my question; the same rights I would have under my trunk being broken.

Mr Jim Wilson: As the crown gets the proceeds of any contents of this machine, the crown should also be responsible for any liability of damage to a machine when an error is made. That's common sense.

Mrs Haslam: Yes, but there wouldn't be any proceeds if there wasn't any --

Mr Jim Wilson: No, but in other cases where it's a legitimate seizure or forfeiture, the proceeds go to the crown; therefore, it would seem reasonable that the crown should also pay for any errors that might be made.

You're probably right. A reasonable approach to this is that the likelihood of this happening is small, but obviously there is a likelihood of it happening or it wouldn't even be in this act. Somebody's thought that this might happen and that we have to put these provisions in the act in two different sections. So what's the answer if the inspector is found in error, didn't have reasonable grounds --

Mrs Haslam: Or did have reasonable grounds.

Mr Jim Wilson: -- under either of these sections? What's the penalty?

Mr Williams: The answer is the same as I gave to Ms Haslam. If we amend the section the way it's being rewritten by legislative counsel, I don't think you have to say so in the legislation, but certainly there could be liability if somebody was found to have broken into a machine without reasonable grounds. I think that applies to any statute where an inspector or a police officer exceeds their powers under the law in the particular circumstance.

Mr Jim Wilson: So no need to specify and the courts would then have flexibility to decide?

Mr Williams: Yes, that would be correct.

The Vice-Chair: Any other speakers to Mr Sterling's amendment to subsection 13(8.1)? It's adding at the end of that subsection the words "if tobacco is found therein." All in favour of Mr Sterling's amendment? Opposed? The amendment is lost.

Mr O'Connor's motion to amend subsections 13(8.1) and (8.2): Ms Carter was listed to speak to it previously. Do you wish to speak at this time?

Ms Jenny Carter (Peterborough): I don't buy a lot of things out of vending machines, but can't you always tell whether there's any of the product there? If not, you're inviting the public to put money in and lose it. It seems kind of basic but --

The Vice-Chair: Mr O'Connor, do you wish to respond to that?

Mr O'Connor: Mr Chair, at this point I would like to withdraw the two motions I put and re-move the amendment -- I'll read it slowly -- that hopefully captures the intent as committee members' concerns have been raised.

The Vice-Chair: Mr O'Connor now withdraws the motion before the committee and presents a replacement motion. Proceed.

Mr O'Connor: I move that section 13 of the bill be amended by adding the following subsections:

"Same, vending machines

"(8.1) An inspector conducting an inspection may open a vending machine for the selling or dispensing of tobacco if,

"(a) the vending machine is operable and is in a place to which the public has access;

"(b) the owner or operator of a place referred to in subsection 7(1) refuses or is unable to open the machine; and

"(c) the inspector has reasonable grounds to believe that there is tobacco in the machine.

"Exemption from liability

"(8.2) No person is liable for damage done to the machine in connection with the opening;

"Seizure and forfeiture

"(8.3) The inspector may seize any tobacco and money found in the machine; the tobacco is forfeited and shall be dealt with as the Minister of Health directs, and the money is forfeited to the Minister of Finance."

I hope that addresses the concerns raised by my colleagues.

The Vice-Chair: Could we have copies produced and circulated to the members?

Mrs Haslam: I want to know why (a) says "and"; that it's not two separate sections. You're saying is if it is operable and in a place accessible. I'm wondering why it shouldn't be (a) if it is operable, and (b) if it is in a place accessible.

Mr O'Connor: Yes, I'll change the "and" to "or" and have it circulated as such so we can see that. The "and" would be struck out and we'll put in the word "or."

Mrs O'Neill: In terms of the "refuses or is unable to open," what is the "unable to open"? Lost the key? Intoxicated? What have you got in mind? Why not "refuses"?

Mrs Haslam: If they don't have keys and they use that as an excuse --

Mrs O'Neill: There must be a legal reason.

Mr O'Connor: The person we're going to ask to open the machine may not have the key. The owner of the premises on which the machine's found doesn't have the key because that person may not be the person who actually stocks the machine, puts the tobacco products into the machine. We're trying to anticipate some things but at the same time respect the intent Mr McGuinty's raised.

Mrs O'Neill: It just seems to me that the owner is at quite a disadvantage as most of the owners of these vending machines are not present. Then who is liable: the owner of the premises or the owner of the vending machine? This gets very complicated, and I think we have to be quite clear where the onus is going to lie.

Mr Jim Wilson: I'm ready to vote on the amendment without having the version in front of me. I took notes as the parliamentary assistant read the amendment. The new drafting meets the concerns I had.

The Vice-Chair: I had Ms Caplan listed to speak to Mr O'Connor's motion. However, the motion has been replaced with another motion. Did you wish to comment?

Mrs Caplan: No. I'm supportive of the change that's been made. It addresses my concerns.

The Vice-Chair: Mr Wilson, it's being circulated now, somewhat quicker than we expected. Thank you. Mr O'Connor has moved the motion that's now before you. Any further discussion?


Mr McGuinty: Just so I'm clear on this, if an inspector wants to open the machine, there are certain prerequisites that have to be met. Requirement number one is that the vending machine has to be operable or that it's in a place to which the public has access; requirement two is that the owner or operator of the place referred to refuses or is unable to open the machine; and requirement three is that the inspector has reasonable grounds. Is that correct?

Mr O'Connor: Yes.

Mr McGuinty: All three there have to be met.

Mrs Caplan: And he must believe it's for tobacco use, so that it's not inadvertently a candy machine.

Mr O'Connor: We should have no broken bubble gum machines as a result of this.

Mr McGuinty: The "exemption from liability" in (8.2) says, "No person is liable for damage done to the machine in connection with the opening." That's a little open-ended. I'm wondering if it should be saying "in connection with the opening so long as the machine was opened in accordance with the foregoing" or something to that effect.

Ms Sibylle Filion: Could you repeat the suggested wording?

Mr McGuinty: Subsection (8.2) presently reads, "No person is liable for damage done to the machine in connection with the opening." I want to ensure that the opening that's referred to in (8.2) was the kind of opening that's authorized pursuant to (8.1).

Ms Filion: We could add it in and it wouldn't harm it, but I don't think it is necessary in this instance that the two follow directly. The cross-referencing, in my opinion, isn't necessary.

Mr McGuinty: Would you stake your career on it?

Ms Filion: I would hope the member wouldn't put me in that position.

Mr Jim Wilson: You don't have to answer that. Politicians never answer those questions.

Mr McGuinty: It's just a concern I see on the face of it.

Ms Filion: Consistent with the trend towards plain language, there's a trend in reducing the number of cross-references in drafting.

Mr McGuinty: And this is the only section that's talking about "opening" anyway, right?

Ms Filion: That's right.

Mr O'Connor: Good. We don't want to put too many lawyers out of work.

The Vice-Chair: Anyone else? Now that you've heard Mr O'Connor's motion to amend section 13, all in favour of the motion? Opposed? Carried.

Mr O'Connor: I have a further motion. I move that section 13 of the bill be amended by striking out subsection (9).

As you know, we circulated this and discussed many elements of this with the Ministry of the Attorney General. It was suggested that this wasn't necessary to be in here.

Mr McGuinty: Are you making reference to -- I can't seem to find a copy of it -- this provision about the rights of the person being questioned?

Mr O'Connor: This also refers to some of the concerns raised by Mr Wilson during the hearings.

Mr Jim Wilson: My concern was not to delete the clause but more about whether there was an onus on the inspector to ensure that people were aware of their rights. This makes them less aware. At least when it was in there they had something to refer to.

If it's the government's position that everyone assumes they have a right to legal counsel when being questioned by an inspector, I can tell you most people wouldn't know that. If the Attorney General is saying, "You don't need that because people can get legal counsel if they want" -- I'd prefer that you not remove it. In fact, my argument was that they should be informed of their right to have a lawyer present during questioning.

Don't forget, you're going to be dealing with big, big dollars, big, big business. If there's a need for a raid and inspection and all that's contemplated under these sections -- in my opinion, people aren't going to get into illegal matters in this area unless it's big business, certainly, Mr Chairman, in your area of the province, where you're well aware of the smuggling and the big business that was going on. The right to legal counsel is something people should be informed about.

Mr O'Connor: I may have to call for some legal counsel on this, but what we're talking about is legal counsel before a charge has even been laid. I think we're really getting into a conundrum once we start saying you have the right to legal counsel before a person's been charged. I don't know what we'd be doing if we started putting that in other pieces of legislation. It's an awkward thing.

Mr Jim Wilson: We have parallels -- not legal counsel, but we've got an Advocacy Act that entitles you to all kinds of counsel. What can't the poor person who's being questioned by an inspector know of his or her right to legal counsel? Under the Advocacy Act, we have to read forms to children, for goodness' sake. It just seems to me it's a fundamental right. If it's a right in society, people should be aware of their rights.

Mrs Haslam: Are butchers informed of their rights when an inspector goes in? Legal counsel?

Mr Sterling: Here we are back to the meat question.

Mrs Haslam: Yes, back to the meat question. Let's get to the meat of this question.

Mr Williams: Maybe I can clarify. Our advice from the Attorney General's office was that in light of subsection 13(11) and especially subsection 13(14), there could be a conflict between those two sections and subsection (9). Subsection (14) says, "No person shall hinder, obstruct or interfere with an inspector." I don't think we want to leave an inspector in an awkward position where they come in to do an inspection and the person whose premises are being inspected on a Wednesday says: "Sorry, my legal counsel's in Ottawa. They won't be back till Monday." Then the inspector is completely hamstrung in carrying out an inspection. Our advice is that the two sections conflict, that it should be removed.

In any event, as the parliamentary assistant has pointed out, certainly if somebody's charged, they have the right to legal counsel once the charge has been laid.

Mr Sterling: In other words, what I'm getting from legal counsel is that taking it out is not only a matter of saying it's redundant, but that you're taking it out so you don't want these people informed of their rights. Is that right?

Mr O'Connor: The point is that we're going into an area where, before a person's been charged with something the inspector may find them in violation of, they've got the right to have legal counsel there for whatever type of inspection. It goes beyond what we've got now. I think it's pretty reasonable, the way it's written, to have that withdrawn, because having legal counsel there before someone's even been charged doesn't seem to make much sense, unless you're a lawyer.

Mr Sterling: The advantage of putting it in here is that this act won't be read by the person who's actually involved in this altercation. It will be read by the inspector who is charging or questioning this particular individual. For the sake of instruction of that inspector, it may be useful to have it left in the act. That's the way I look at it: the inspector being better informed of what the rights of the citizen are when he's questioning this particular individual.

Mrs Haslam: Does the butcher have a lawyer with him when the health inspector inspects his shop?

Mr Sterling: He's entitled to.

Mrs Haslam: Then he knows he's entitled, just like this particular --

Mr Jim Wilson: I doubt he knows.

Mrs Haslam: Yes, he's entitled to it, under the Human Rights Code, under the charter.

Mr Williams: Under the charter, if you want to have counsel present, you can have counsel present. You don't need to say so under the legislation.

Mrs Haslam: It's there. We don't have to put it in this legislation, because it's already out there under the charter.

Mr O'Connor: The key here is that when somebody's been charged, of course they've got a right to counsel.

Mr Jim Wilson: That may be true, that at all times people are entitled to legal counsel -- and thank goodness they're here during committee hearings -- but given that you're bringing in a new act with new powers for inspectors, when this particular subsection 13(9) appeared, the concern was that it wouldn't really be a level playing field, because you're asking for the business records and a number of business-related things from the person who's subject to the questioning. Perhaps we could call it a courtesy, if it's not necessarily legally required, that the inspector be able to say, "By the way, before we go any further, you are entitled to legal counsel." Maybe you can put a section in that ensures that somebody has a reasonable time to obtain counsel, not to delay the thing till Monday, as you said, if the inspection was on Wednesday.

Mrs Haslam: Why don't we send them a letter saying: "We're going to inspect your store for illegal cigarettes on Friday. Could you have your lawyer available?"

Mr Jim Wilson: No, the point is you would be there and you would have reasonable grounds, I would assume, because the test is in here, for all the things you're going to ask for. If you want to go through my filing cabinets, I'd like to be informed whether I have the right to legal counsel. I don't think people know that under the charter right now.

Anyway, those are the thoughts I have on it. I suspect we're not getting very far.

The Vice-Chair: Did you wish to speak, Ms Haslam?

Mrs Haslam: Let's just vote on this.

The Vice-Chair: You've heard Mr O'Connor's amendment. All in favour of Mr O'Connor's motion, please indicate. Opposed? Amendment carried.

Section 13, as amended: All in favour? Opposed? Carried.

The committee will adjourn until 2 pm.

The committee recessed from 1202 to 1415.

The Vice-Chair: Good afternoon, ladies and gentlemen, the social development committee is continuing clause-by-clause consideration of Bill 119. We're down to section 14 and there is a government motion.

Mr O'Connor: I move that section 14 of the bill be struck out and the following substituted:


"14(1) A person who contravenes subsection 3(1), 3(2), 3(6) or 4(1), section 5 or 9 or subsection 13(14), 15(4), 16(6), 17(2.2) or 17(3) is guilty of an offence and on conviction is liable to a fine determined in accordance with subsection (3).

"Continuing offence, signs, smoking areas

"(2) A person who contravenes section 6 or 10 or subsection 10.1(2) or 17(1) is guilty of an offence and on conviction is liable, for each day or part of a day on which the offence occurs or continues, to a fine determined in accordance with subsection (3).

"Determining maximum fine

"(3) The fine, or daily fine, as the case may be, shall not exceed an amount determined as follows:

"1. Establish the number of times the defendant has been convicted of the same offence during the five years preceding the current conviction.

"2. If the defendant is an individual, the amount is set out in column 3 of the table to this section, opposite the number of previous convictions in column 2 and the section or subsection number of the provision contravened in column 1.

"3. If the defendant is a corporation, the amount is set out in column 4 of the table to this section, opposite the number of previous convictions in column 2 and the section or subsection number of the provision contravened in column 1.

"Sequence of convictions

"(4) In establishing the number of times the defendant has been convicted of the same offence for the purposes of subsection (3), the only question to be considered is the sequence of convictions, and no consideration shall be given to the sequence of commission of offences or to whether an offence occurred before or after a conviction.

"Continuing offence, vending machine

"(5) A person who contravenes subsection 7(1) is guilty of an offence and on conviction is liable, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $2,000.

"Offence, failure to submit report

"(6) A person who contravenes section 8 or a regulation made under clause 18(1)(f) is guilty of an offence and on conviction is liable to a fine of not more than $100,000.

"Duty of directors and officers

"(7) A director or officer of a corporation that engages in the manufacture, sale or distribution of tobacco has a duty to take all reasonable care to prevent the corporation from contravening this act.


"(8) A director or officer of a corporation that owns, occupies, operates or maintains a place referred to in paragraph 1, 5, 9.1 or 13 of subsection 9(1) has a duty to take all reasonable care to prevent the corporation from contravening subsection 10.1(2).


"(9) A person who has the duty imposed by subsection (7) or (8) and fails to carry it out is guilty of an offence and on conviction is liable to a fine of not more than $100,000.


"(10) A person may be prosecuted and convicted under subsection (9) even if the corporation has not been prosecuted or convicted."

I've got a table here to read, and what I'll do is go down through the table column by column.

"1. Provision contravened: 3(1), 3(2), 3(6), 4(1), 6, 10, 10.1(2), 13(14), 15(4), 16(6), 17(1), 17(2.2), 17(3); 5; 9.

"2. Number of earlier convictions: 0, 1, 2, 3 or more; 0, 1, 2, 3 or more; 0, 1 or more.

"3. Maximum fine -- individual: $2,000, $5,000, $10,000, $50,000; $2,000, $5,000, $10,000, $50,000; $1,000, $5,000.

"4. Maximum fine -- corporation: $5,000, $10,000, $25,000, $75,000; $100,000, $300,000, $300,000, $300,000."

That certainly was a mouthful, Mr Chair, and I appreciate the committee's indulgence as I read that.

The Vice-Chair: I believe the only change from what's been circulated is the addition of 9.1 under "Same," subsection (8).

Mr O'Connor: That's correct.

The Vice-Chair: Discussion?

Mr McGuinty: In the new section 14, in subsection (8), we're talking about directors and officers "of a corporation that owns, occupies, operates or maintains a place referred to in paragraph 1, 5 or 13" --

Mr O'Connor: It includes 9.1, the amendment by Mr Sterling. That wasn't in what was circulated, but I read it and added it.

Mr McGuinty: Yes. In other words, we're saying we can go after the people who run the companies if they're breaching -- correct me if I'm wrong here -- the law in so far as allowing people to smoke in a non-designated place is concerned.

Mr O'Connor: It also includes the areas of sale as well. The table will be referred back to, the fines in the table.

Mr McGuinty: Right, but does it say we can go after directors and officers if they've -- sorry.

Mr O'Connor: Given that this is a rather technical one, maybe what we could do is ask our legal counsel who we've got here at our disposal to clarify where you're having some difficulty, Mr McGuinty.

Mr McGuinty: It seems to me, Frank, that we've got a distinction here and I just want to first of all confirm that I'm right in this regard. It says that if you are caught selling tobacco -- well, no. If you commit any offence under the bill and you're a corporation, you can't go behind the corporate veil to get after the people who run the show. You can't get at the directors and officers except, and there seems to be one exception here, you can get at the directors and officers if they allow smoking to occur in a non-designated area or in an area that doesn't meet the prescribed criteria. Am I right?

Mr Williams: I guess there are two things. Obviously, subsection (7), which is very similar, is to catch the sort of situation where you've got illegal selling that could possibly take place. Subsection (8), which is the one you're asking about, and the contravention of 10.1, is the situation that has arisen because of the motion that was moved this morning, whereby if there are places where smoking is to be permitted, the onus is put on the owner or occupier to ensure that the signs that are there are the proper signs and to prevent people from signing an area as being a smoking area when in fact it's not really a smoking area. The onus is on the owner or occupier. In the case where that's a corporation, it's just to ensure that the officers or directors of the corporation have to take some responsibility for what the corporation does. That's all it's intended to do.

Mr McGuinty: Are we saying that volunteer directors who sit on boards of hospitals, psychiatric facilities, colleges, universities, could be liable for a $100,000 fine here?

Mr Williams: I guess in theory that if they approved the signing of a part of the campus where they knew full well there was to be no smoking, probably the answer is yes, but certainly an officer or director who was diligently carrying out his duty would not so approve such a thing. If they voted against it when there's a meeting of the board of directors, then I would assume there would be no liability, as long as they exercise their duty in a proper fashion. That applies to anything that an officer or a director of a corporation does in any other regard, not just smoking and tobacco-related offences.

Mr McGuinty: I'm particularly concerned, though, about volunteer directors. It's been my sense, as the law through various statutes has evolved, that we're making it harder and harder to get people out there to volunteer to do the kind of work that needs to be done to keep things moving in this province. My concern is that we're now going to set up another roadblock in the way of volunteer directors.

Volunteer directors by and large are not necessarily up to snuff on the legal ramifications of the decisions they make. They show up at a meeting. There's an agenda placed before them. They're there oftentimes because they have some connection with an institution or some presence in the community and they're there out of a spirit of goodwill. They're told to do things and by and large they approve them. Some of them have more time and they question, they get into them.

That's my concern, Mr Parliamentary Assistant. What we're doing here is saying to volunteers who happen to be directors, who aren't being paid any money, "You now could be fined $100,000 for not staying at home and watching TV at night but rather coming out to the meeting and trying to get involved in the community."

Mr O'Connor: I don't think this is much different than other legislation requirements placed on boards of directors. For example, it could be workplace health and safety types of areas. I would ask legal counsel to comment on that.

Mr Williams: Just one further point: I'm not an expert on corporate law and all the ramifications, but it's my understanding that most corporations, and I would assume non-profit corporations where they have volunteer directors in a lot of instances, do have liability insurance that covers the normal types of things, where a director in all good faith carries out a duty, and as a result of some decision that's made by the board, something happens and he's sued.

My view would be that if they're doing something in good faith and they honestly believe and have been given information upon which they've acted, and they've acted in good faith and taken reasonable steps to ensure that what they're doing is proper, there would be no liability. If they're clearly doing something outside their authority, then I can't see where the problem would lie.


Mr McGuinty: The concern being again that they don't know when they're doing something outside their authority, and sometimes they don't receive the advice that a professional director would demand to receive before they move forward.

Just to bring forward another example, student centres in our college and university campuses are governed by a corporation which is run by students, so in student centres the directors and officers are all students. If a mistake occurred, if an improper decision was made with respect to abiding by prescribed criteria as to where smoking would be allowed within the student centre -- that's where all the pubs and the restaurants are, and sometimes there's music listening and there are reading rooms and things that the students have set up for themselves -- what we're saying is for the students to be subject to a $100,000 fine.

It just seems to me to be pretty far-reaching and -- I hate to use the word because it's overused -- draconian in terms of how far we want to go here to deal with directors. I'm specifically concerned with volunteer directors, not professionals.

Mr O'Connor: I appreciate your concern. The amendments that I've made in this section aren't much different than some technical changes to reflect other changes that have been made. The intent of this section remains pretty much intact. In fact, this is what we went out on the road with for public hearings. I don't recall a lot of conversation about this as we were on the road. I hear your concern, though.

Mr Williams: One other comment that I might make is that the amounts that are set out in the table are maximums. It doesn't mean that the court is necessarily going to impose a $100,000 fine on a director of a student council. That's only the maximum amount. As you see, there's no minimum amount. So I'm sure the court, and the court usually does in these sorts of circumstances, would take into consideration the type of situation, the type of director that you have, if it's a volunteer director, and the information that the director had at his or her disposal when the decision was made, and the fine or lack of fine would reflect that.

In fact, the courts traditionally tend to be very reluctant, in those types of situations, to impose large fines. That's why we didn't put a minimum in, because we didn't want the court to be placed in the awkward position of trying to decide whether to convict or not convict and maybe not convict because there was such a high minimum fine that in essence the act would never work.

Mr McGuinty: I've registered my concerns. I think we've had some good discussion here in terms of the intention of the government on this matter, which could form a useful basis in the event that somebody was ever charged under this. I'm going to vote in favour of section 14, as amended. I think it's very important, obviously, that we have penalties and maximum fines in order to ensure that we give this bill some teeth.

The Vice-Chair: Does any other member wish to speak or comment?

Mr Jim Wilson: It's really a point of order, Mr Chairman, that you may want to rule on. We certainly want to get this bill done this afternoon, but I just wonder if we can vote on this particular section, given that the table contains sections we've not yet dealt with and that are subject to amendment. Not only the table, but this section deals with other sections in terms of fines. My recommendation would be to stand it down till we deal with sections 15, 16 and 17. For example, the table presupposes the passage of an additional subsection to the bill, 17(2.2). We've not dealt with subsection 17(2.2).

The Vice-Chair: That's correct. I think we should go on. We'll stand this down and go on with the other sections.

If it's agreed, we'll then stand Mr O'Connor's motion down at this time and proceed to section 15. There is a government motion regarding section 15.

Mr O'Connor: I move that section 15 of the bill be struck out and the following substituted:

"Automatic prohibition

"Tobacco sales offences

"15(1) For the purpose of this section, the following are tobacco sales offences:

"1. Contravening subsection 3(1) or 3(2), section 5, 6 or 7, or subsection (4) of this section.

"2. Contravening section 8 or 29 of the Tobacco Tax Act.


"(2) On becoming aware that the following conditions have been satisfied, the Minister of Health shall send a notice of the prohibition imposed by subsection (4) to the person and to all wholesalers and distributors of tobacco in Ontario:

"1. The person has been convicted of a tobacco sales offence committed in a place owned or occupied by the person.

"2. The person was convicted of another tobacco sales offence committed in the same place during the five years preceding the conviction referred to in paragraph 1.

"3. The period allowed for appealing the conviction referred to in paragraph 1 has expired without an appeal being filed, or any appeal has been finally disposed of.


"(3) The notice shall specify the date on which it is to take effect.

"Sales, storage and deliveries prohibited

"(4) During the applicable period,

"(a) no person shall sell or store tobacco in the place where the tobacco sales offences were committed; and

"(b) no wholesaler or distributor shall deliver tobacco to the place or have it delivered there.

"Applicable period

"(5) For the purposes of subsection (4), the applicable period is,

"(a) the six months that follow the date specified in the notice referred to in subsection (2), if the person has been convicted of one other tobacco sales offence committed in the same place during the five years preceding the current conviction;

"(b) the nine months that follow the date specified in the notice, if the person has been convicted of two other tobacco sales offences committed in the same place during the five-year period; and

"(c) the twelve months that follow the date specified in the notice, if the person has been convicted of more than two other tobacco sales offences committed in the same place during the five-year period.


"(6) It is a defence to a charge under subsection (4) that the defendant had not received the notice at the time the offence was committed.


"(7) The prohibition on storing tobacco does not apply to small amounts of tobacco for the immediate personal use of persons who work in the place.

"Sequence of convictions

"(8) In establishing the number of times a person was convicted of another tobacco sales offence for the purposes of this section, the only question to be considered is the sequence of convictions, and no consideration shall be given to the sequence of commission of offences or to whether an offence occurred before or after a conviction."

This reflects some of what we heard through the hearings and also brings into play a conviction that would be under the Tobacco Tax Act.


Mrs Haslam: It's the teacher in me that wants a clarification of some of the language. On the second page of the motion under "Sales," (4), it talks about "place" and in "Applicable period," (5), it talks about "place." In (4), what happens if that place is bought out by another person? And in (5), what happens if the person charged with an offence changes his location? Because it says "place." It says "if the person has been the same place during the five years preceding the current conviction."

Mr O'Connor: It would apply to the place.

Mrs Haslam: So if I opened a store front, sold tobacco, was charged, closed the store front, opened another store front and was charged, you couldn't do a thing to be me because it's a different place.

Interjection: That is correct.

Mrs Haslam: Yea, bingo. Isn't that interesting. Could I have some clarification on that? As Ms Caplan often says, this is legislation and we have to be very careful in what we put in place.

Mr Williams: That's correct. When we were trying to draft this, we found we had to make a decision on the balance of how we could enforce this. Part of the problem too is the fact that because this is an automatic statutory prohibition, you've got to be able to link where the offence has taken place, where you send the notice, and it got very difficult if we were trying to just track the person.

We also ran into a problem where, if the person is a corporation, does that mean you can't sell tobacco, say, to Shoppers Drug Mart if it's been committed in one store? It means that you can't sell any tobacco to Shoppers Drug Mart and they can't use tobacco in any of their stores. So we wanted to relate the conviction to the place where the offence took place.

In addition, there is also the problem of signing the premises where there have been two or more convictions. We wanted to make sure that we have the ability to go in and put a sign on the place where the convictions had taken place. We're not saying it's perfect, but this was the best scheme we could come up with that we felt would work with the automatic statutory prohibition scheme.

Mrs Haslam: So the owner is ostensibly responsible for his staff and he gets charged and his store doesn't sell tobacco?

Mr Williams: That's correct.

Mrs Haslam: It's not linked at all to the people.

Mr Jim Wilson: Ms Haslam raises an excellent point that I certainly didn't catch in my reading of it. I guess what you're saying, though, is that if a corner store -- it seems bizarre to me that a place could be convicted. I know it's the owner or occupier who is actually convicted, but if a charge exists on the place or pertaining to the place and you sell that place to someone else and subsequently there's a conviction to the previous owner, I guess, would the place still has to have a sign put up even though it's under new ownership?

Mr Williams: I would say the answer is yes. It gets very complicated. The logical consequence of what I think you might want to ask when we're finished with this is that this seems unfair. The type of situation that we also want to prevent is where one family member owns the business, and in order to get around the type of situation where you might have a section saying it doesn't apply where the business is sold, we don't want to raise the situation where the family member could sell it to somebody else and the business carries on and they still sell tobacco. As I say, I'm not saying it's a perfect scheme, but it's the best scheme we could get to work the way we wanted to set it up, with the automatic statutory prohibition, without getting into some other complicated scheme.

Mr Jim Wilson: Concerning your comment about Shoppers Drug Mart, their stores are numbered and, secondly, they can be identified by address, so I don't see a problem there.

Mr Williams: But I'm talking about the average mom-and-pop store. There are hundreds and thousands --

Mr Jim Wilson: In your previous explanation of why you had to take this model, you used Shoppers Drug Mart and you didn't want to stop selling cigarettes to all Shoppers Drug Marts. First of all, they won't be allowed to sell cigarettes, so they are out of the picture, and secondly, they can be identified by street address.

Mr Williams: Just to clarify what I said earlier, you could get the sort of rather strange situation where -- I don't want to zero in on Shoppers Drug Mart -- a large chain, if the chain was convicted once and you didn't relate it to the place, then in essence it couldn't sell tobacco in any of its stores. They've got 100 stores and after the second conviction, you relate it to the person. It means that none of their stores would be able to sell tobacco. Likewise, the wholesalers and distributors would be prohibited from selling tobacco to that chain. I don't think we want to prevent that.

Mrs Haslam: No, I understand; it's the lesser of the two.

Mr Jim Wilson: Could you not make an exception for corporations?

Mrs Haslam: Or is there something you could add --

Mr Jim Wilson: Because what you're doing is penalizing the mom and pop shops, really.

Mrs Haslam: No.

Mr Jim Wilson: Because this charge could take a long time to be disposed of or a conviction rendered, and things happen. People don't wait around. Here's a question: If I were to buy a store from someone where there's a charge, would I be notified as part of my real estate dealing that there's a charge pending? Because that could really affect my business, these signs that have to be put up afterwards.

Mr Williams: Certainly, if you're a diligent purchaser, you would go and inspect the premises and see that there's a sign in the premises saying that they can't sell tobacco.

Mr Jim Wilson: No, but that's only upon conviction. What about pending? What about if I'm charged -- I own the store -- and I say: "Forget it, I only sell cigarettes and a few other things anyway. I'm just going to close this store. I'll sell this store"? There's a charge pending. There's no sign up yet. Somebody naïvely buys it and then two months later I'm convicted of the offence and that old store that I sold has to put the sign up, which is the reason I got out of it --

Mrs Haslam: And if you were convicted of the offence, you could still go and open one next door.

Mr Jim Wilson: Yes. That's another great point.

Mr Williams: Maybe to clarify some of the confusion, although the charge relates to the premises where the offence has taken place, it's still the person who owns the premises who's being charged. They're the one who commits the offence more than once in that location.

Mr Jim Wilson: But when it comes to signage, the premises retains the sign after the conviction, regardless of who owns it now.

Mrs Haslam: And would a second conviction in a second location count as a second conviction or only a first?

Mr Williams: I'm sorry?

Mrs Haslam: I've sold it to good old Mr Wilson here and he can't sell tobacco in his store, while I on the other hand can open a store next to him and I can sell tobacco. You catch me selling to a minor and it's my second conviction, but only my first in that place.

Mr Williams: I would concede that your example is a possible scenario, but I think you'll find that certainly mom and pop stores, people who own variety stores, don't just easily pick up and move next door every day. They just can't do that physically. Most businesses just aren't run that way. My argument would be that that's not a terribly likely scenario to take place.

Mr Jim Wilson: I'm not thinking of a large store.

Mrs Haslam: We're just trying to find ways to be sure.

Mr Jim Wilson: What about a tobacco kiosk? It moves to the next mall because this one -- I mean, a tobacco kiosk with one of these signs, I would assume the effect of this thing is not only to discourage young people but to discourage customers. If I had one of these signs pending or whatever else comes with the conviction, why wouldn't you just try and get out of your lease and move? Because that's all you sell, that and chips and pop and candy bars, I guess. That's what's likely to occur. I agree that mom and pop stores that have been in the neighbourhood 20 years aren't like to go too far.

Mr Williams: I think the thing we've got to be cognizant of is the two things we're trying to prevent. One is you're trying to give a message to the public that selling to minors is a no-no. The other thing you're trying to do is prevent the vendor from selling to the minor in the first instance. That's the whole gist of this. It's not a matter of putting people out of business or getting them to move their businesses. I think we're looking at this in a rather skewed manner.

Mr Jim Wilson: I don't think we are, because you're taking about something that somebody else did wrong and you're making the new owner inherit that problem. The place didn't sell the cigarettes; a person sold the cigarettes.

Mrs Haslam: If you have looked at that scenario, the one that I'm raising, if this is your best effort and this is the best way to deal with it, that's fine. I'm only looking at other options and whether other options were investigated in this particular issue.

Mr Williams: Yes, they were. I guess what I'm saying, and I said that earlier, is that it's not perfect. We could have done it in other ways, but we found that the other ways where we tracked the person, rather than the location where the person happened to operate, got us into worse conundrums and more trying to manoeuvre with our words. When all was said and done, this shook down as being the method that worked the best, and we worked this out. We had long consultations with the Ministry of the Attorney General on enforcement and how we could enforce this and best come up with an automatic statutory prohibition scheme, and this was the method that seemed to be the best when all was taken into consideration.


Mr McGuinty: This is a problem. Is there a registry? Does the bill create a registry so that if I was a buyer now, in addition to the gas, the hydro and the water, property taxes and business taxes, and employee severances that I have to look out for and make sure those are covered, now I've got to check something else? Is there something else I can check to determine if there's been a conviction?

Mr Williams: I'm not up on how freedom of information relates to how available information is on convictions or when people have been convicted, so I'm not sure I can really answer this properly. But if there was no impediment under freedom of information, I don't see why -- certainly when the ministry is going to be tracking convictions, they're going to keep very close track of who's been convicted where. Otherwise, obviously, the scheme isn't going to work. Assuming that there are no impediments, and I'd have to check into whether there are impediments, I don't see why the ministry couldn't set up some way of somebody finding that out.

Mr McGuinty: Yes, because you made reference to a buyer being diligent. I recognize that's an obligation on a buyer, but there has to be some avenue for him or her to exercise that, within which they can exercise that diligence.

Mr O'Connor: Mr McGuinty, in this instance what we're dealing with is the automatic prohibition, so this is after the convictions have been levied. If the person was at a point before the automatic prohibition was to come into play -- say they only had the one conviction and there was a new owner -- then my understanding is that it would apply to the previous owner. The new owner then would come into it without a conviction.

What this deals with is the automatic prohibition, which is that they've been found in contravention, the signage would go up, the notices would go out and the people supplying the tobacco to the premises -- all the notices would go out. It's at the point where the convictions have all taken place and this person is no longer able to sell. So when a person wants to go into the store to take a look at premises that they were about to purchase, there would be signs already in place. That's what this portion is, to put the signs in place and to have the products removed.

Mr McGuinty: So if I contravene the legislation on day one, and on day two I sell the premises, does that mean the premises will be subject to a prohibition if I'm convicted on day three?

Mr O'Connor: That wouldn't take place on the first conviction.

Mr McGuinty: Well, if it was whatever, you know; if it was my third conviction.

Mr O'Connor: There would be a process with that as well. Before the prohibition comes into place, there's the opportunity for the person to appeal and what not. It doesn't happen overnight. There is a process and you'll note that when I was reading this, I talked about some of the criteria that had to be met before the automatic prohibition actually came into place.

Mr McGuinty: I don't think that changed anything. I think the problem is that the penalty is visited upon the premises --

Mr O'Connor: Yes, that's the way it is. You're right.

Mr McGuinty: -- rather than the guilty person.

Mr O'Connor: The difficulty is that the guilty person may be a person who owns many stores, but the one premises that has been found could be managed by -- they could have six managers or whatever working for them. It's those premises that, yes, then would be subject to this section of the bill.

It was a difficult situation to try to come up with the best-case scenario, where this shop owner could have half a dozen shops but only one premise has been a problem, not upholding the legislation and following the rules. All the rest of the stores, it was felt, shouldn't be subject to the same rules because they had one bad manager out of the lot. The owner, I would assume, would have approached that manager or whatever. The best way to deal with it, it was felt, in a fair manner, would be to do it to the premises, put the automatic prohibition in for the premises. It was a difficult situation.

Mr McGuinty: If I run a business at 18 Bank Street, my premises become subject to a prohibition. If I shut down and set up at 20 Bank Street, I'm in the clear?

Mr O'Connor: Yes, you would be, given that the premises themselves -- I would think, though, that a shop owner isn't about to put himself in a situation where they're found in contravention and go through a process of moving and the expense just to get beyond what they've been convicted of. There were some areas here where choices had to be made, and somewhere in there we had to find what was the most reasonable way to get to the end that we wanted, which was premises or a shop that's been found in contravention where the prohibition needs to come into place -- could be met.

Mr McGuinty: I'm just thinking aloud here, because this problem has just been raised now. I look at clause 15(4)(a) here on page 2 of the amendments, "No person shall sell or store tobacco in the place where the tobacco sales offences were committed;" or in any replacement premises owned or operated by a person who was convicted.

Mr Williams: If I can follow up on something the parliamentary assistant has already said, to maybe put everybody's mind a little bit more at rest as to how this is actually going to work, the notice that goes out from the minister saying that you now have a statutory prohibition against selling tobacco doesn't take place until all the time periods have expired for both appeal and the notices of appeal. In essence, all the appeal periods have expired, and when the sign goes up, it goes up when you're still there in the store. It's not like you're going to have to wait to see if it's appealed; the sign doesn't go up until after the appeal period expires. In essence, if you sold the store before the second conviction, it's not going to kick in, in any event.

The other thing I think worth mentioning is that if somebody moves to another location and is convicted of a tobacco sales offence, the fine is a progressive fine as far as your personal convictions are concerned. It may be $50,000 the first time, if you're a corporation; $100,000 the next time. That still stays in place.

Mrs Haslam: I'm almost afraid to ask. In (a), if owner A has had a conviction and has accepted the conviction: "Fine and dandy; thank you very much. It's only one conviction. I'm allowed two within" -- it's after the second one, is that correct?

Mr Williams: Yes, that's correct.

Mrs Haslam: Okay. A couple of years down the road he sells the business. Another year down the road the new owner is convicted. It's the second offence in the same place.

Mr Williams No, it's only the first offence for that owner in those premises.

Mrs Haslam: Okay, then I'm fine, thank you.

The Vice-Chair: Does anyone else wish to speak? You have before you Mr O'Connor's motion to amend section 15 by replacing it. All in favour of the motion? Opposed? Carried.


Mr Anthony Perruzza (Downsview): Just for the record, Mr Chairman, I was in favour.

The Vice-Chair: Yes, I noticed your hand went up just as I was calling the other.

Section 16, government motion to amend.

Mr O'Connor: I move that subsection 16(2) and (3) of the bill be struck out and the following substituted:


"(2) Tobacco seized under this section is forfeited and shall be dealt with as the Minister of Health directs.

"Vending machine

"(3) The inspector's power of seizure includes power to open a vending machine in order to examine the contents, if the inspector suspects on reasonable grounds that the machine contains tobacco that is stored in a place in contravention of section 15, and no person is liable for damage done to the machine in connection with the opening.


"(4) Any money found in a machine containing tobacco that is seized under this section is forfeited to the Minister of Finance.

"Application of ss. 13(4) to (7)

"(5) Subsections 13(4), (5), (6) and (7) apply, with necessary modifications, to an inspector acting under subsection (1) or (3).


"(6) No person shall hinder, obstruct or interfere with an inspector acting under subsection (2)."

This section allows for the confiscation of the tobacco in vending machines that are found in contravention of the legislation, which are subject to premises that are under automatic prohibition in the sale of tobacco as well.

The Vice-Chair: Any comments or questions? If not, you've heard Mr O'Connor's motion to amend subsections 16(2) and (3). All in favour of the amendment? Opposed? Carried.

Section 16, as amended, all in favour? Opposed? Carried.

Section 17, government motion to amend.

Mr O'Connor: I move that subsection 17(2) of the bill be struck out and the following substituted:

"Posting by inspector

"(2) If signs are not posted as required, an inspector may enter the premises without a warrant and post signs in accordance with the regulations.

"Application of ss. 13(4) to (7)

"(2.1) Subsections 13(4), (5), (6) and (7) apply, with necessary modifications, to an inspector acting under subsection (2).


"(2.2) No person shall hinder, obstruct or interfere with an inspector acting under subsection (2)."

These, I guess you could say, are more on the technical side. They will allow an inspector the authority to enter premises and make sure that the signs are posted as required.

Mr Jim Wilson: Given the past three or four sections, I can see the real potential here for conflict. This subsection 17(2) deals with a new right for an inspector to enter the premises and stick up the signs that are required when somebody's convicted of having sold cigarettes to minors.

Going back to our scenario, the new owner of that corner store may not understand. One assumes, if I were convicted and wanted to ensure that the person coming to buy my store, because I've decided to leave for whatever reason -- I'd take the bloody signs down that day and make sure he or she didn't see them. Then of course the inspector comes along after I have bought the store and comes in with his hammer and nail and says, "By the way, this sign's supposed to be here and it's going to be here."

I can see real conflict if there isn't some sort of registry or some sort of change to the real estate act or something that requires disclosure that a conviction has occurred and that the premises are labelled for a period of time. This really reeks of big government, and you're setting up a potential conflict. It may be rare but --

Mr O'Connor: On that comment, during our time that we had the committee hearings, I believe we heard from the Retail Council of Canada. They had the opportunity to make comment if they saw a problem with this. The intent of this was in the legislation. This is more or less technical in the changes to it. The intent was there, and all these hypothetical scenarios that we've been discussing didn't seem to be a problem with them.

I guess there needs to be some reason when the inspectors are carrying out their duties, and I don't think they're going to be totally unreasonable people. At the same time, there is some responsibility in this as well.

Mr Jim Wilson: In defense of the Retail Council of Canada, they didn't have Mrs Haslam advising them, who has quite correctly pointed out that this scheme is a bit wacko, I think.

Mrs Haslam: I worry when Mr Wilson starts to compliment me.

Mr Jim Wilson: You think you worry?

Mrs Haslam: We're both worried. I know you're wincing because I'm coming up with something else, but let me just trace back and say I'm sorry I brought this up. What do public health inspectors now have under their authority? They already have that authority to do that in restaurants. They already have that authority to close down Mr Wilson's butcher shop. Correct? They already have this kind of authority in other situations out there, and the idea that a restaurateur was going to sell his shop or the butcher was going to sell his shop to a new owner in between doesn't seem to be causing a lot of problems out there now. Are the duties we're giving them in this legislation similar to what they already have in other situations?

Mr Williams: That's correct. The reason we amended this section was to actually strengthen it from what we had in the original second reading bill, because as you notice, the subsections that are referred to in section 13 are ensuring that in fact the inspector does do things in the proper fashion. These are amendments that were suggested to us by the Attorney General as well.

Mr Jim Wilson: In the examples given by Mrs Haslam, I don't think counsel's correct in response. For instance, if your butcher shop is closed down for health reasons and you sell it, there's no period of -- like, here the signs are posted for a period and the prohibition is for a set period regardless of who the new owner is. If it's closed down, you take remedial action.

Mrs Haslam: Immediate action? If an inspector comes in --

Mr Jim Wilson: If you're closed down for health reasons and you sell it and the new owner comes in, presumably they can clean it up so they can get operating right away. There's no set time frame of prohibition that the shop must be closed because the knives were dirty that day. You take remedial action, you phone the health inspector, they come back and reopen you. Sometimes it takes an hour. Sometimes you clean up right in front of them --

Mrs Haslam: So they can close you immediately.

Mr Jim Wilson: -- and they stand around smoking a cigarette or something waiting for you to start again.

Mrs Haslam: Do they close butcher shops and restaurants immediately?

Mr Jim Wilson: That was in the very old days.

Mr Williams: I think Mr Wilson's correct. Usually you're given some time to correct the situation, but I guess if it was a serious health hazard, they could close it immediately, if it was serious enough.

Mr Jim Wilson: Yes, they can, but also there's no statutory prohibition period.

Mrs Haslam: But there's a period of cleanup.

Mr Jim Wilson: You take remedial action and you get open again.

Mr Williams: I'm not quite sure how this relates to our section, though, to be quite honest.


Mr Jim Wilson: The point was that you answered a question from Mrs Haslam, saying it was quite correct that the scenario was that a new owner has an inspector coming in and putting up signs because the previous owner left and ripped down the signs or whatever, and that was likened to the fact that health inspectors already have powers to do that sort of thing.

All I was saying was that under the powers Mrs Haslam referred to, you're permitted as an owner, a new owner or an existing owner, to take remedial action and get your store back open or to meet the order that's imposed by the health inspector. This one says that the signs will hang around for --

Mrs Haslam: It's my understanding that's --

The Vice-Chair: Please, one speaker.

Mr Jim Wilson: Let's make clear to the public that this one says that regardless of what happens, these signs hang around for a set period of time.

Mrs Haslam: But that's not what I understood. I understood that it was --

Mr Jim Wilson: Prohibition hangs around for a set period of time.

Mrs Haslam: But it wasn't that way, because the new owner wouldn't have to put up with those new signs because the previous owner was the one who had sold the business and therefore that wouldn't be a situation that he had to deal with.

Mr O'Connor: That's right.

Mr Jim Wilson: Is that right, now?

Mrs Haslam: Yes, that's the clarification I got the last time. That's why I don't have a problem with this one.

Mr Jim Wilson: Okay.

The Vice-Chair: Any further questions or comments? If not, Mr O'Connor's motion to amend subsection 17(2) is in front of us. All those in favour of Mr O'Connor's motion? Opposed? Carried.

Section 17, as amended: All in favour? Opposed? Carried.

Mr O'Connor: Mr Chair, we should probably go back to section 14 at this time. It was stood down.

The Vice-Chair: Revert to section 14, and Mr O'Connor had presented an amendment: further discussion on the government motion to --

Mr O'Connor: This is the one you suggested we stand down till we dealt with --

The Vice-Chair: Because it has a table attached. The motion by Mr O'Connor was that section 14 of the bill be struck out and the following substituted, and that had been read.

Further discussion on Mr O'Connor's motion on section 14? If not, all in favour of the motion? Opposed? Carried.

Section 18, government motion to amend, and I see that the previous one that was circulated has been replaced and is headed "Alternate 2, 4-CS." Is that correct?

Mr O'Connor: That's correct, yes.

I move that section 18 of the bill be struck out and the following substituted:


"18(1) The Lieutenant Governor in Council may make regulations,

"(a) prescribing anything that is referred to in this act as being prescribed;

"(b) authorizing the sale of tobacco in a part of a psychiatric facility for the purposes of paragraph 3 of subsection 4(2);

"(c) respecting the signs to be posted under sections 6, 10 and 17;

"(d) respecting the packaging requirements, health warning and other information referred to in section 5;

"(e) respecting the reports to be submitted under section 8;

"(f) requiring persons who sell tobacco at retail to submit reports to the Minister of Health;

"(g) defining `video or amusement arcade' for the purpose of paragraph 9 of subsection 9(1);

"(h) establishing what constitutes a common area for the purposes of paragraph 9.1 of subsection 9(1) and defining `enclosed shopping mall.'

"(i) prescribing criteria for the purposes of section 10.1.


"(2) A regulation made under clause (1)(c) may specify the wording and appearance of the signs and the locations where they are to be posted.


"(3) A regulation made under clause (1)(d) may,

"(a) impose different packaging requirements for different forms of tobacco;

"(b) govern aspects of packaging, including labelling, colouring, lettering, script, size of writing or markings and other decorative elements;

"(c) prescribe a minimum package size to contain not fewer than the prescribed number of items or not less than the prescribed number of grams of tobacco;

"(d) require that the health warning be inserted inside the package, printed on or affixed to its outer surface, inserted between the package and the outer wrapping, or printed on or affixed to the outer wrapping;

"(e) require that the other information be inserted inside the package, printed on or affixed to its outer surface, inserted between the package and the outer wrapping, or printed on or affixed to the outer wrapping.


"(4) A regulation made under clause (1)(e) or (f) may prescribe the contents and frequency of the reports.


"(5) A regulation made under clause (1)(i) may,

"(a) prescribe criteria relating to the size or location of smoking areas;

"(b) prescribe criteria relating to the floor space or permitted occupancy load of smoking areas as a proportion of the total floor space or permitted occupancy load of the place;

"(c) prescribe criteria relating to the ventilation of smoking areas;

"(d) prescribe criteria relating to the provision of equivalent or superior non-smoking areas;

"(e) prescribe different criteria for different categories of places.

"Effect of ss. (2) to (5)

"(6) Subsections (2), (3), (4) and (5) do not restrict the generality of subsection (1)."

Basically, these are some of the technical amendments and refer to some of what we discussed earlier.

Mr Jim Wilson: I have a question. I think I have the right version of this motion. It's alternate 2. One thing I notice that I don't recall talking about to any great extent is with reference to clause 18(1)(f). It's talking about "requiring persons who sell tobacco at retail to submit reports to the Minister of Health." I thought we had discussions about wholesalers and distributors of tobacco products having to submit reports, and I know there's a requirement for that but I wasn't aware of -- well, I guess I was aware, because we did have a chat to some extent about the paper burden. Can you just explain to me what exactly these are?

I'm sorry; I'm a bit confused. I recall a distributor coming in and talking about the added burden of paperwork, but I don't remember retailers being told, in any of the previous circulations of this legislation, that they're now going to have to do another paperwork regime. As you know, as the government should be well aware, it's the paperwork and regulations and taxes that are killing our businesses in this province, and here we have the Ministry of Health requiring more paperwork by small retailers who sell tobacco.

Mr O'Connor: Thank you for the question. We did hear from some people who felt that the reports we have in section 8 -- if we don't have compliance or have difficulty in getting reports because we may not be able to find all the retailers, there needed to be a way the minister could then go to the retailers. So I guess it's enabling at this point, because of some of the concerns that were pointed out to us by some of the people who made presentations to us.


Mr Jim Wilson: What do you mean you can't find retailers? They submit taxes on these things through your revenue department. Can't you get off the backs of small business and just have government talk to government on these things?

Mr O'Connor: The intention is that we deal with the wholesalers on this. It was pointed out to us, though, by people coming to this committee that they felt that if there was some difficulty around section 8, which dealt with the reports from the wholesalers and distributers, then the minister should allow herself the opportunity to move forward in passing some requirements on the retailers. It's not the intention, but it's to enable the legislation to proceed. The intent of the legislation, as we've been hearing -- that's why that presentation was made to us. It was with that concern, and that's what this amendment deals with.

Mr Jim Wilson: That presentation wasn't made by a retailer who's going to have to fill these out. Once again, you have people who have never run a bloody store in their lives dictating more paperwork for the small business community. I think that if that had been in the original circulation of the bill, you would have had the small business community coming forward and saying, "Look, some of us already have 36 or 40 reporting dates a year, and now there's a possibility that the Ministry of Health's going to want some more paperwork filled out by us, in addition to our employer health tax levy forms," which drive small business and in fact the business community of Ontario absolutely crazy.

Are you trying to kill jobs? It's bad enough that you've got wholesalers doing all this. They testified before this committee, if you want to go back to that, that they felt they were giving sufficient information now to the revenue department and that they didn't understand why the Ministry of Health needed more of the same paperwork filled out. Do you understand that paperwork costs jobs?

Mr O'Connor: The point is that we heard from people making presentations to the committee. They were concerned that the intent of the legislation, which has received a lot of support -- that if you were to follow through with the intent of the legislation, we'd need to know who the retailers are. It's the hope that all this can happen through section 8 of the bill.

If section 8 of the bill proves to be problematic, that's why people came to us through presentations suggesting that the minister should be able to approach the retailers for a report from them if that was necessary. It certainly isn't the intention of this government to make more work for the retailers, but the intention is that we've got 13,000 people in the province of Ontario dying needlessly from tobacco use and we're trying to protect the young people here. So with all that intention in there, we do need the ability to carry out the intention of the legislation that we all support.

Mr Jim Wilson: So you have to find out who the retailers are and you're going to have these people, and you don't know who they are, fill out reports. The only way you're going to find out who the retailers are, I suppose -- I don't know -- is to post a notice on hydro poles that, "The retailers on this street have to report to Big Brother whether or not they're selling tobacco."

That's crazy. You can't sell tobacco unless you remit taxes. You can't have a retail licence in this province unless you acquire one from the Ministry of Revenue. Why can't the Ministry of Health simply talk to the Ministry of Revenue to find out what retailers are selling tobacco products, rather than sending a pile of more forms out to retailers?

Mrs Haslam: It's not that specific.

Mr Jim Wilson: No, the information there, Mrs Haslam --

Mr O'Connor: I guess the key here is that there are a lot of retailers in this province. We heard even from some retailers who don't sell tobacco products through the course of these hearings. There are a whole host of retailers. Not all retailers sell tobacco products. I guess the key here is that it's the tobacco products we're trying to deal with. We're not trying to complicate it. What we're trying to do is be able to conform to the intent of the legislation. To do that, we're putting in an enabling portion here that will allow the minister to approach the retailers if it's necessary.

Mr Jim Wilson: I don't understand it. I've still not heard an explanation to justify the enabling action here. You can't sell tobacco legally in this province unless you remit the tobacco tax back to the province and the feds, so you know already who's selling tobacco, legally anyway. Anyone selling it illegally isn't going to fill out a report anyway.

Mr O'Connor: I guess maybe I could ask for a clarification, but I don't know whether --

Mr Jim Wilson: I think it's the bureaucrats thinking they need another report and not in any way understanding the amount of paperwork and the job losses that have occurred in Ontario because of our overregulation and paper burden on the business community. If you can avoid another report, I would simply ask you to do so. If you can get together with the Ministry of Revenue and avoid this at all costs, you should take it out of the legislation.

Mrs Haslam: I apologize, because I was out of the room when this started, but section 8 deals with "A person who, in Ontario, sells or distributes tobacco for subsequent sale at retail." So it's not a retailer. It's not your corner store that has to fill out the reports.

Mr Jim Wilson: No, it's 18(1)(f), Karen.

Mrs Haslam: Yes, but 18(1)(e) says -- oh, I see what you're saying, 18(1)(f).

Mr Jim Wilson: Then (f) says again you've got to fill out a report.

Mrs Haslam: To sell tobacco, to submit a report. I stand corrected.

Mr Jim Wilson: That's new. That wasn't part of the hearings.

Mrs Haslam: Yes.

Mr Jim Wilson: They slipped that in. I noticed it last night.

Mr O'Connor: I don't believe that at this time each individual retailer submits their taxes on tobacco individually. I believe that's done through the wholesale avenue and through the distributors.

Mr Jim Wilson: You're already asking wholesalers for those reports --

Mr O'Connor: That's right.

Mr Jim Wilson: -- and you want more detail in those reports. You've won that battle. Now why do you have to go after the retailers?

Mr O'Connor: What was pointed out to us was that if there are problems in that area -- and the detail is not about the amounts of tobacco -- we can then take a look at other elements of it if we don't have that information. We may need this extra authority. So we've put in this section the authority that's been asked for by people who came to the committee.

Mrs Haslam: If and when needed: Is that the gist of it?

Mr Jim Wilson: It's always if and when needed, as you know, and if and when needed in government means it's always needed, and it always ends up in the paper stream eventually.

The point is that you've got tough legislation now, when this passes, to require reports in whatever detail you prescribe from wholesalers. Am I correct? Including where in the world they dispose of their cigarettes, who they sell cigarettes to.

Mr O'Connor: Correct.

Mr Jim Wilson: So why don't you just enforce that section, which we've already given you in previous voting, or we will be giving you, which I think is punitive enough, but there's fewer wholesalers and I think we had some commitment during the hearings that Health would try not to be too punitive in this area and would try and get together with Revenue. At least that's the discussion, we were told. Now why at the 11th hour do you have to slip in paperwork for retailers, when if you simply used the wholesaler scheme you thought up, you should get all the information and more than you can possibly need for the sale of cigarettes in the province of Ontario?

Mr O'Connor: I can only point out that through the course of our hearings, we had concerns brought to our attention that they felt that if there were problems there, the minister should then have the authority to go to the retailers, and this will allow the minister to do that.

I agree that in the scenario you presented in section 8 that would be the best approach, and I'm sure that's the approach that will be taken to begin with. It was just in addressing some of the concerns as pointed out to us through the course of our hearings that this section was amended this way.

Mr Jim Wilson: I just beg to differ. I don't require retailers begging for this or anyone else; I require people talking about the reports that wholesalers had to fill out, and I thought that was a bad enough paper burden, but there aren't that many of them in the province and part of the condition of selling the product would be that. But now you're adding a whole new stream. Don't tell me it won't be used. Government doesn't go around asking for prescribing powers it doesn't intend to use or hasn't already thought of a reason to use, and you haven't given me a good reason yet.

Has the Treasurer been asked his opinion on this? Has Mr Rae, the Premier, been asked his opinion on this, more paperwork for small business? It's not what I'm reading in his speeches these days.

Mr O'Connor: This is to address some of the concerns we heard. We want to move forward and make sure we can uphold other sections of this bill so that the intention that has been brought to us -- for all the people who came to us applauding what we have to do and the way we need to do it, we need to make sure that we have the tools to enable us to do it. The intention is to use section 8, and the concern is that if there are some problems there, the ministry would like to be able to then go directly to the retailers and work with them. Not every retailer in the province; just the retailers of tobacco products.


Mr Jim Wilson: You're hardly going to work with them. It's a witchhunt clause, that's all it is if you don't trust wholesalers to give you the information, even though you can penalize them if they don't give you the proper information. You've already got another information stream and that's the revenue department, and now you're giving yourself a witchhunt clause that says there might be a few more other retailers out there selling cigarettes. I don't know how in the world they would sell cigarettes without a retail licence and without submitting the tax back, and there's a paper trail on the tax.

I just think that in your good graces you should rethink clause (f) here and take it out unless you have an absolutely concrete reason that you need it, and you don't. If you'd just open your eyes and look at how government works, you don't need this prescribing power. You've got more than enough information that 93,000 bureaucrats can't possibly digest right now.

Mr O'Connor: Mr Chair, through you to the honourable member, as we go through this, and realizing that this is a health piece of legislation and always keeping in mind that we want to deal with things in a local fashion when it comes to some of the health issues as presented to us -- that's why we heard from so many people involved in the health promotion elements of this -- I think it could be that somewhere down the line we may want this information for work within the community as well, and this would allow us perhaps an opportunity to deal with health promotion on a local level. Again, all I could point out is that there were concerns pointed out to us through the course of the hearings and we're addressing them.

Mr Jim Wilson: Let's be a little more specific, then. What kind of report are they submitting? Now they're going to help you do health promotion reports on a community level or something?

Mr O'Connor: No, the key here is that we --

Mr Jim Wilson: It's not their job, by the way. They might do it out of goodwill, but the minister could simply write a letter to them saying, "I'm the Health minister and I'd like your help in your community to fight tobacco among young people." You're requiring reports here. You're requiring paperwork. If there's one thing that's very clear to everyone in this province, it's paperwork that's killing the jobs in our province.

Mr O'Connor: I realize that, Mr Wilson. In fact, I heard through the course of these hearings suggestions by your party that we extend liquor licensing and create some more bureaucracy in trying to deal with other elements of this legislation.

Mr Jim Wilson: I agree and that's why we backed off that.

Mr O'Connor: Then at that point I realized that you wanted to back down, realizing you didn't want to place some extra burden on these establishments.

Here again, the fact of the matter remains that section 8 is the portion of the bill where we're going to work with the wholesalers and distributors to have these reports. As pointed out to us by presenters to this committee, they felt the minister should allow herself the authority through this section that to go to the retailers and work with them to have reports filed if they were having difficulty.

Mr Jim Wilson: I give up.

Mr McGuinty: I want to support Mr Wilson's objections raised to the inclusion of clause (f) in subsection 18(1). First of all, it's a surprise. Retailers were never made aware during the course of the hearings that the government was considering making them file reports of one kind or another. I get the impression that it's kind of a back-door effort to implement some form of licensing. If we're going to talk about licensing, then let's talk about licensing. If that's what the government's after, then let's talk about licensing.

In fairness to people who were never told that this was part of the agenda, who have never had an opportunity to express their concerns about it -- I know what they'd say. I'd say they've already got enough paperwork, period.

I think that retailers can be encouraged to become a partner in health care. I'd like to see everybody in the province become a partner in terms of promoting health care. But I just don't see the necessity for the inclusion of clause (f) here, and I don't think that passing a new section 18 with it is fair to the people who should have had an opportunity to respond.

Mrs Haslam: This is an interesting argument. I'd like some clarification, because I've been informed, and I'll ask legal counsel about this, that the revenue and taxes are collected from tobacco wholesalers, that the revenue and taxes are not recorded in the revenue ministry for retailers, so there may be a problem in getting a good list of retailers because of that, plus the fact that a wholesaler may sell to a larger corporation that then distributes to a smaller number of stores. That would preclude us from getting that list of retailers. If those two reasons keep us from having an up-to-date list, that's why you've given the authority, should that happen, so that we can get a good list of retailers who sell tobacco. Am I correct in those things?

Mr Williams: Yes, that is correct. In fact, for the tobacco taxes that are collected, it's an indirect tax. It's not collected directly from the retailer. The retailer will reimburse the distributor from whom he or she buys the tobacco, but it's the tobacco wholesaler-distributor that submits the taxes to the Ministry of Revenue.

The other complicating factor, as Ms Haslam has pointed out, is that a large drugstore chain usually has its own distribution centre where it may get tobacco from the tobacco wholesaler and then in turn distribute it to their individual stores. The chain of information tends to stop at that distribution unit. Our hope is obviously to try to get that information from the wholesalers and distributors, but if for some reason we can't, we want to have the ability to go a step further.

Mrs O'Neill: I'm having quite a bit of trouble with this as well, mainly because of the lack of consistency between section 8 of the bill and section 18 now. I realize that you can make regulations on anything you want to, but I think it's quite deceiving to have in the body of the bill under section 8 that the person who's going to submit reports is going to do it for the purposes of being a wholesaler, or in the position of being a wholesaler, in that the person is described as one who would be selling "for subsequent sale," and now we get "requiring persons who sell tobacco at retail" in section 18. In my mind, if the government was going to do this, it definitely should have changed section 8, which it didn't.

I feel quite strongly, therefore, that I would like to have an amendment to the amendment placed in my name that we remove clause 18(1)(f) from this to make the regulations consistent with the act.

The Vice-Chair: You're moving an amendment?

Mrs O'Neill: I am.

The Vice-Chair: Discussion on the amendment?

Mr Sterling: It is kind of strange that something requiring somebody to report is in the prescribing section of the bill. Normally in the prescribing section of the bill you are further defining sort of the details of what is required of people and citizens and government in the main body of the bill. Therefore, really, if it's the government's desire to do this, it should be dealing with section 8 and not with section 18.

Mr O'Connor: If I might, perhaps we can ask legal counsel whether or not this section requires that section 8 should have been amended to deal with the wishes that have been presented here. Should we have amended section 8 to allow us to put this in section 18? Was it necessary?

Ms Filion: No, it wasn't necessary. You can give yourself a fairly broad range of powers in the regulations.


The Vice-Chair: Do you wish to continue, Mrs O'Neill?

Mrs O'Neill: Yes, I do. That's what makes regulations so difficult. We're affecting literally thousands and thousands of retail outlets in this province with this regulation. Aren't we lucky that we were able to find it out at this moment, because there likely will be further regulations later, but it wasn't part of the hearings. In no way did the retail industry know it was going to have to do this. They're used to dealing with this government through their wholesaler, for the most part.

I'm sure most of us have talked to retailers. I've talked to them lately because they're quite upset, and I'll bring this to the table right now, that they're not getting the rebate on the tax from this province that they've paid up front for the cigarettes that are on their shelves right now, and they are having to sell them at less than they paid for them. That is a hardship for the small businessman. I'm talking about a store that's about as big as my bathroom. I've had two complaints from my riding on that issue already. Anyway, that's another matter.

That's the way they're used to reporting to the Ministry of Revenue and paying the Ministry of Revenue, and now the Ministry of Health is going to ask them for something else. It's never been brought to their attention till this afternoon, at this moment in this hearing, and most of them wouldn't even be interested in listening to this, because they don't think it affects them.

Mrs Caplan: What's driving small business people crazy in this province is the need to fill out government forms. The thought of yet another government form is just unreasonable. I don't know why you have to have this in this legislation at this time. The one complaint that I hear over and over again from small business people in this province is that the regulatory burden from the provincial government is driving them up the wall, is driving them out of business, is forcing them to distraction and frustration, and certainly is not helping create jobs in this province. The cost in time and effort to fill out government forms and reports is something which small business in particular is just going wild about.

I would urge the parliamentary assistant and the minister to send a very important signal to the small business community in this province and remove clause 18(1)(f) from the regulatory reporting requirement of the Ministry of Health on this matter. There are numerous other reports that are being filled out already, and frankly this one is just absolutely and completely unnecessary. It's an unnecessary regulatory burden. It's one more thing that's going to make small business mad. It's going to affect our ability to encourage job creation in the private sector and encourage small retail business in this province.

Whether it's tobacco sales or anything else, they will see this as yet another government form. It's the wrong signal and I would encourage you to take the very sensible suggestion of my colleague the member for Ottawa-Rideau and take out clause 18(1)(f).

Mr O'Connor: To the honourable member, the key here is that there needs to be auditing. If we take a look, for example, at the OHIP system, the OHIP system has its own checks and balances that are in place. Very rarely do you go to the patient and ask, them, "Have you been to Dr X, x number of times over the course of the last set period of time?" But OHIP does do that on occasion. On occasion, they do go to a selected few people within the province with a report that says, "We have had claims on your behalf for medical services that have been rendered to you by Dr X." It's a checkpoint; it's a check and balance. Every system needs to have checks and balances in it.

Now we have a situation where we have wholesalers that through section 8 of this will be filling out reports to the Minister of Health that will allow us to track the sale and distribution of tobacco. The intention is that that's where we're going to be dealing with this. What we won't have if we strike this out is that check and balance, that opportunity for us then to go to a retailer on occasion and say, "Is this within what we're doing?"

What we're not trying to do here is place an undue burden on small businesses, as we have heard; in fact, this is one of the governments that reduced taxes to small businesses. This government doesn't want to do that. What we want to do is try to allow ourselves a place where we can have a check and balance, and that's what was presented to us as we went through the committee hearings. That's why these people made this suggestion that this check and balance be put into this legislation.

Mrs Haslam: As I understand it, "The Lieutenant Governor in Council may make regulations...requiring persons who sell tobacco at retail...." Is it the intent that it be done in regulations immediately? As I understand it, the intent is to go to the wholesaler, to the distributor. That's where your revenue lists are; that's where your tax lists are. You don't have a list of

businesses out there through revenue or through taxes that sell tobacco.

If that doesn't work, what this allows you to do is to go further in trying to track the sale of tobacco, but it isn't a given that this will be done. That's how I'm reading it. I'm reading it that we're going to go for clause (e), "reports to be submitted under section 8," which is wholesalers and distributors.

If you don't get the information about who is selling tobacco out there, if you need to know more about the tracking of where that tobacco is sold, without this you have no comeback: You don't have anything in the Revenue ministry that tells you where it's sold and there isn't a licensing process in place, so you don't have the possibility of finding out what retail outlets sell tobacco. Is that the case?

Mr O'Connor: If I can assure you to some degree, when the regulations are introduced and proclaimed, the intention here is that we're going to go with section 8. That's where we're going to be dealing with it. We're trying to deal with it at the wholesale and distribution levels. It's not the intention to go to the retail element unless we find difficulties. What we're asking here is that should we find that we have some difficulty, we have the authority that we can go to the retailers, if that is the case down the road.

There are some real concerns that some people within this industry have some interesting ways of dealing with reporting, and it's the intention that we have a way of validating things down the road and offer some protection for the intention of what we have in this legislation.

Mrs O'Neill: I think I have to make a correction. I do not think Ms Haslam was correct when she said the Ministry of Revenue will have no record of who sells tobacco.

Mrs Haslam: No, I said not retail; they have a record of wholesalers and distributors.

Mrs O'Neill: And they have a record of the retail through the wholesale.

Mrs Haslam: I asked for clarification from the legal --

Mrs O'Neill: That's really quite confusing. The wholesalers must have it, because I actually saw the forms when I talked to --

Mrs Haslam: Not the retailers.

Mrs O'Neill: -- with the person who's complaining about the rebate. I saw the forms myself that must be submitted by the retailer to the wholesaler regarding submission of tax.

Mrs Haslam: Ask for clarification, because that was the question I asked.

Mrs O'Neill: There is nobody from the Ministry of Revenue here at the moment.

Mrs Haslam: Isn't that what you were indicating to me?

Mr Williams: The information that I have been able to obtain from the Ministry of Revenue legal branch is that where the distributors sell to individual store owners, certainly there's no problem. But there are instances with chain stores where the sale from the wholesaler or distributor is to the chain store, which has its own central warehouse where it sells to its individual stores. That's not considered a distributor in the normal sense, and there's no way of the original wholesaler or distributor knowing whether store A or store B of that chain gets 10 pounds or 200 pounds of tobacco, and that's the problem.

Mrs Haslam: How are taxes rebated, through the wholesaler or the distributor or through the retail outlets?

Mr Williams: The retail outlet basically pays to the distributor what it has sold in the way of tobacco tax, but it's collected --

Mrs Haslam: And they are the ones who report to Revenue?

Mr Williams: From what I understand, the tobacco tax is collected at the wholesale-distributor level.

Mr O'Connor: So at that point there is no record within the government of Ontario of who the retailers of tobacco are in the province.


Mr Williams: The thing that is confusing to everybody, and I admit it is confusing, is the fact that the Ministry of Finance does collect provincial sales tax from vendors, but the vendor's permit that a retailer has does not indicate whether in fact it is a seller of tobacco. They used to, I think, 20 years ago; they don't any more.

Mrs Haslam: There's no accurate list.

Mrs O'Neill: Here again we have the bulldozer on the mosquito, because you're talking about 120,000 and most of these are small. We know the big guys. This Minister of Health has just hired 50 police on cigarettes. We just had that happen last week. Talking about checks and balances, how belaboured are the retailers going to be? They've got this police squad out there. Now they're going to have to have reports. They are already licensed as retailers. Most of them belong to retail councils; they belong to the boards of trade and chambers of commerce. These people aren't all crooks. I'm really getting tired of the way you're talking about the business people of this province and saying that they have to be looked at from every single direction. We're going to have a whole --

Mr Perruzza: I resent that. Point of order, Mr Chair.

Mrs O'Neill: Well, I'm sorry, I have the floor. We have Bill 119, which is a very --

The Vice-Chair: Point of order, Mr Perruzza.

Mr Perruzza: My point is this: Ms O'Neill has implied that the government side --

Mrs O'Neill: That is not a point of order.

Mr Perruzza: -- has referred to small businesses in the province of Ontario --

Mr Sterling: No, you just treat them like that.

Mr Perruzza: -- treating small businesses in the province of Ontario as crooks. That's absolutely untrue and, quite frankly, a bold-faced you-know-what. I would ask you, as Chairman of the committee, to ask Ms O'Neill to either clear that up, get it off the record or fix it in some way, because that's not true. We've done more for small business than they ever proposed to do when they were in government. They just taxed them out of existence. That's what you did. You taxed them out of existence.

Mrs O'Neill: And you're driving them.

The Vice-Chair: Mr Perruzza, thank you for your participation. Ms O'Neill, would you please continue.

Mrs O'Neill: I feel very strongly that people are not being treated fairly. They're not being treated with the dignity that they need. They're not being encouraged to hire even part-time people. We had very responsible business people come here and tell us how they were going to implement Bill 119. Let's see them do it instead of imposing further impositions on to their line of business.

Mrs Caplan: I would very much like to make a helpful suggestion. The one thing that business is saying is that we are overregulated, that one ministry doesn't talk to another. Why don't you simply amend the form from the Ministry of Revenue, if there's additional information that you require, rather than having a new and additional other form from the Ministry of Health? Let's get serious and let's get sensible here. Cut it out. They don't need to fill out yet another form. You are not doing anything but frustrating them.

Mr O'Connor: The fact of the matter is that while we were dealing with this issue we went to the ministry and asked whether or not there was a way of doing that in the reporting systems. There wasn't. So what we're trying to do here is put in that check and balance. As a former Minister of Health, I'm sure she realizes that there needed to be a check and balance when we deal with the Ministry of Health and the OHIP system. There is that check and balance which allows the ministry to go to an individual and ask whether or not they have been in receipt of different benefits through the health care system that are to be paid for on their behalf. It's not something that's done all the time and not every person in the province of Ontario goes through this check and balance.

What we're not doing with this, and I'll state it again for the record, is that we are not requiring every retailer in the province of Ontario to fill out a report. What we are doing at this point is addressing the concerns that were brought to this committee that should section 8 of this bill prove to be problematic, should section 8 of the bill not provide the detailed information that would be necessary, we have the ability to put in that check and balance that would be necessary so that we can fulfil all the rest of what we want to do through the retail of tobacco through the province of Ontario.

It is not the intention at this time, and when regulations are proclaimed it is not the intention, that there will be massive reporting by all the tobacco retailers in the province of Ontario. But what we need is that check and balance, so that we have the intention, the fine intention that all the members of the Legislature have in this legislation, that we have that ability to move forward, so that we can more forward and try to slow down that rate of the 13,0000 people who are dying from tobacco-related illnesses every year, that we have that ability to put in there what we want as the intention.

The intention here is that should section 8 not give us the information that's necessary, should that prove problematic, then we have an avenue open to us to go to the retailers and work with the retailers to establish a reporting system from there. When the bill and regulations are proclaimed, it's not the intention that every retailer in the province of Ontario who sells tobacco is going to be subject to filling out a report.

Mr Sterling: I have a question for the parliamentary assistant. Under the retail sales tax, retailers are compensated for filling out the retail sales tax and submitting it. Is it your intention to compensate retailers for filling out this form?

Mr O'Connor: At this point the wholesalers are the ones who fill out the form, not the retailers. The retailers at this point do not remit to the Ministry of Finance the remittance that is required. It is something that is done through the distributors and the wholesalers.

Mr Sterling: But for other products that they sell in their stores, when they remit a retail sales tax form, they get paid for doing that. They receive compensation for doing the government's business, providing it with information. Are you going to compensate them for doing this additional burden of work that you're requiring of them? Are you going to compensate them?

Mr O'Connor: At this point, there is no intention of having them fill out this report, and then --

Mr Sterling: You can't have it that way, sir. You either deal with the issue or you take it out.

Mr O'Connor: Thank you, Mr Chair. I thought I had the floor there.

The Vice-Chair: Yes.

Mr O'Connor: I appreciate that. The intention isn't that all the retailers in the province of Ontario aren't going to be filling out reports.

Mrs Caplan: That's a double negative that suggests that they are.

Mr O'Connor: My grammar's being corrected here. Thank you. I'm afraid I don't have a degree in English; sometimes my English may fail me a little bit. I appreciate what the concerns are. The concerns are that there is going to be undue hardship placed on retailers by their filling out reports on a constant basis on the tobacco sales they're going to have.

Let me state for the record, again, and I thought I did it already, that it is not the intention that every retailer of tobacco is going to be filling out a report daily, weekly or monthly. It is the wish that we can deal with it through the distributors, through section 8, the wholesalers. Should that section be problematic -- and it was pointed out to us through the committee hearings that there was a concern that if this fails, how is the minister then going to be able to comply with all the good intentions that we have in this legislation? If that's the case, how can we do it?

This is the way we can do it. The day that this act's proclaimed, we're not going to, all of a sudden, require all of the retailers in the province of Ontario to be filling out report after report after report. But for us to be able to comply with the legislation, to deliver on the intent of the legislation, so we can proceed with what we wish in this case, we do need to have that ability. That's what we have here. The compensation package that the member's referring to would be the same level as what we see with the GST.


Mr O'Connor: It's not there? I'm sorry it's not there, but there's not a huge reporting thing we're talking about. This isn't anything like the GST. It is very problematic and is a heavy burden on retailers, I agree. We're not talking about that type of reporting, so I don't think that we can move with that. In fact, if the member were to move something requiring compensation, I'm sure it would be ruled out of order.

Mr Perruzza: Well said, in very good English.


Mr Sterling: The parliamentary assistant is presenting what I would call a ridiculous situation. He's saying we don't need this section unless section 8 doesn't work. I say to you, sir, that as a parliamentarian I have the right to consider this when in fact it's going to be used. I don't want to pass laws that are going to be kept in abeyance by a government to just sort of pull out of their pockets whenever they need to fire the gun.

You come back to the Legislature and have this section passed. That's what the Legislature's supposed to be here for. You pass laws when they're timely and needed; you don't pass laws, "If this doesn't work, then we're going to try this, or then we'll try that." You don't create laws in terms of either you're certain of your action or you're not certain of your action. When you're certain of your action, come and talk to us, and then we'll talk about whether we pass this law or we don't pass this law.

If you're not going to use this section, then why don't you put some compensation in for people who fill these forms out? In my view, it would be very much less likely that the government would require this report if in fact a compensation tag was attached to it.

In other words, the bureaucrat or the minister, who some day down the road decides, "Well, I've got the power. Let's say, for the sake of research, that we require these retailers to make a report" -- that's fine and dandy for someone to consider that when they're not paying for it. "Sure, let's require it. Let's dump this burden on all of the 120,000 retailers who are doing it." But if there is compensation attached to requiring that particular piece of paper, then they're very much less likely to take the decision lightly.

Therefore, I would ask the parliamentary assistant to consider very seriously putting some compensation attached to this requirement, as is the case with the retail sales tax.

Mrs Caplan: The taxpayers want government to streamline its operation. They have an expectation that ministries will work together to solve problems. My constituents tell me that they can't understand it when one ministry and another ministry won't cooperate and work together.

You are the government. You, your ministers and your Premier have the ability to say to the Ministry of Revenue, "Here are some additional data we'd like you to include on your forms because the Ministry of Health needs this information." You can do that. You can do it without a new regulation specifically for the Ministry of Health. You can direct the Ministry of Revenue to provide the Ministry of Health with the information that it requires. You can require that ministries work together.

I've been listening to your arguments and I don't think there's any guarantee, once you have this regulatory power, that you're not going to simply burden small business with yet another form. Once you have that power, it is in the interests in bureaucracy to justify their own existence and send out the requests for the information.

It is additional work for small business and it is additional work for civil servants, and it will have a life of its own unless you take the leadership as the government and say: "We're going to cut this out. We're going to reduce the regulatory burden. We're going to streamline government. We're going to make sure that ministries not only talk to each other but work together."

The first step towards doing that is to remove clause (f) and this requirement for yet another form to be filled out, to be sent to the Ministry of Health, when a form is already being sent to the Ministry of Revenue. For you to say that the Ministry of Revenue says they can't change their form, I can tell you, sir, both as a former minister -- Minister of Health -- and presently the Revenue critic, to me your response is absolutely unacceptable. You can tell the Ministry of Health that the Ministry of Revenue can work with them to provide that change.

It's interesting because your Finance minister is the Minister of Revenue. He is the chairman of your treasury board. They are supposed to be looking for ways to make government more efficient. Here is an example of something that you can do that is very simple, and I ask you if you will not, today, take the first step towards sensible government.

The Vice-Chair: Do you wish to respond at this time?

Mr O'Connor: I guess I could respond to the very direct questions that she's asked here. It makes sense that the Ministry of Health would go directly to the Ministry of Finance and have this discussion. In fact they have had that very discussion. It is a result of some of that discussion which pointed out the fact that the Ministry of Revenue doesn't get these reports from the retailers as suggested. After hearing from the Ministry of Revenue that we don't have this reporting take place now, what the minister wants to achieve through section 8, if that can't be achieved, is to have the ability.

What we are hearing here today is that the two ministries should talk. One ministry should go to the other ministry and tell them: "Let's start doing it even if it isn't required today. Let's start making every retailer in the province have to report." That's not what we're trying to do. That's not the intention.

What she's saying, in saying that the two ministries should work together, has in fact happened. The two ministries have got together and talked and that's why we found out that every retailer in the province of Ontario that may sell tobacco doesn't report directly to the Ministry of Finance. It doesn't happen that way.

What we're asking here, then, is for an increased burden to be placed on them immediately, and I don't think we want to do that. I don't think we want to place that increased burden on them immediately. Should section 8 of this bill not provide the information necessary, and should it be necessary, we are asking for the ability to then go to the retailers and work with them.

What she's asked for actually has happened. We've had that opportunity to go and have the two ministries -- many ministries, as you can see, Mr Chair, through the course of the day's hearings. We've heard suggestions made by different ministries and some amendments taking a look.

Actually, there have been many ministries involved in this discussion. When the suggestion is that the two ministries work together, in fact they have worked together. It's because they've worked together that we found out that this reporting doesn't take place at this level. It doesn't; it takes place at the distribution level; it takes place at the wholesale level. That's where the tobacco tax is. For us to then go to every retailer and add more paperwork to them I don't think would be fruitful. We're not about to do that. That's why I state that we're not about to proclaim that as part of the bill here. Should we need that ability, as was presented to us by the people who came to this committee saying that the intention of the bill is fine but what happens if the wholesale information doesn't provide you with the detail you need, how are you going to deal with that? Shouldn't you then at least give yourself the authority to go to the retailer? That made a lot of sense.

Not wishing to place a lot of undue burden on the retailers, we haven't placed that as a primary concern in the bill, and that's why there's not another section in there in section 8, saying all retailers are going to have to report. What we're doing here is trying to put in a little bit of sense that will allow us, with the intention of the legislation, to move forward.

All ministries that are concerned have had the opportunity to actually come to the table, sit down, discuss this in a reasonable fashion, and the ministries have decided that the best approach would be, if necessary, that we need to have that authority. That's why we've got it in section 8 here.

Mrs O'Neill: The more Mr O'Connor speaks of this, the harder I can accept it. It's with the greatest of difficulty that I'm accepting his arguments.

We had a very big problem in this province, I think it was in 1988, when ministries had to sit down and draw up a French-language voters list. That was a heck of a lot more complicated than what we're doing now. We worked day after day. I happened to be part of that and it wasn't easy. But we came up with a new enumeration form in this province that's acceptable and we publicized it and people got on the right voters list.

I have seen the forms of which you speak. I do not believe they cannot be corrected, adjusted, amended; I just don't believe it. If the will was there it would happen.


I have so much trouble when you as parliamentary assistant and/or a minister -- and I'm thinking again of the war in the media now between the chairman of the school board in Scarborough and the Minister of Education, which I think is just disgusting because it involves an individual student, and that's what it's come down to, and there are going to be other individual students involved -- where a minister now is interpreting an act on his own that lawyers for the board have interpreted another way. I was also part of that piece of legislation.

You're telling us when and how this is going to be used. It doesn't say a thing here that you're going to use it if necessary. It doesn't say a thing here that you're going to use it for auditing purposes. Auditing purposes are very different than what you're describing. Auditing purposes usually happen at the most on an annual basis. You don't suggest here that it'll be on an annual basis. You don't suggest what the purposes are.

You talk and talk and talk about checks and balances. You talk about some army of bureaucrats that are going to gather this information some day. It's just really deplorable that small business is going to sit down and all of a sudden think that it has something else to do. They're going to feel obliged to do it and they're going to wonder when they're going to be hit on the head with the hammer.

I really don't see how you can keep this in here in conscience unless you amend it to say exactly what you've been saying this afternoon, and my motion stands until you present something else that goes for clause 18(1)(f) that is more clarified for the purposes you have been expounding and expounding.

Mr McGuinty: Just to come back the issue before us, Bill 119, basically it's a good bill. There are some difficulties that I personally have with it but on the whole it's a good package, and it's unfortunate that what the government has done has muddied the waters with this particular provision.

You know, you don't want to turn a silk purse into a sow's ear. You don't want to give all of this a bad name. I don't want the only thing that comes out of Bill 119 to be, if I'm a retailer, "Isn't that the bill that those people down at Queen's Park passed which is going to make me fill out another form?" I don't want that to be the message that is sent by Queen's Park when this becomes law.

I can't really believe that the government didn't recognize what this is all about. This is like waving a red flag in front of a bull.

Mrs O'Neill: Exactly, exactly.

Mr McGuinty: This is 1994. Our small business people have just managed to pick themselves up to the point now where they are on their knees. They are just barely able to make ends meet. They deal with something that is foreign to many of us called overhead. If they're sick, overhead goes on. They have costs. Not only do they not get paid but they have costs, and government has put all kinds of obstacles during the course of government, and I'm quite prepared to say that we have during our term added to that, but that's history.

Now we have an opportunity before us to address this issue and what we can do in a very real way in terms of helping. Rather than doing something to them, let's do something for them and let's ensure that we're not adding burdens in terms of paperwork, let alone government costs that will be associated with collecting this kind of paperwork and reviewing it and doing whatever, God knows what, with it. Let's get this out of here.

My colleague Ms O'Neill has put forward I think a very reasonable motion and Mrs Caplan has spoken wonderful words of wisdom on this based on her experience in these matters. Let's get on to the important part of section 18, which deals with generic packaging. I think we've spent a lot of time on this. Let's yank this part. Let's get on with it.

Mrs Caplan: I really have said everything I want to say on this. My view, if the government insists on moving ahead with this, is that it really is an example of just incompetence and not understanding how the world has changed.

Mr O'Connor: I don't know if this could be simply amended by adding something that may appease what I'm trying to state here as the intent; if we could add to the end of that amendment the words "if necessary," if that would help. The key here is that it's not the intention we're going to move forward with it and have reports happening all the time but to show the intent here is "if necessary." That would allow us, then, to show that it's not going to be a requirement that's going to happen all the time but just if it's necessary.

The difficulty we have here is should we have problems with section 8. I don't want to put a lot of extra words into the legislation. I know that does complicate our lives, and we've certainly had enough complication in dealing with clause-by-clause, but if the words "if necessary" were added to that clause. Perhaps before I make that suggestion that I think may help alleviate some of the concerns that are presented, we should have a little bit of discussion on that.

Mr McGuinty: I'm sorry, just to confirm, you want to add the words "if necessary" to --

Mr O'Connor: To clause 18(1)(f).

Mr McGuinty: That doesn't lend any comfort to me at all, because "if necessary" is purely subjective. What may be necessary to you may not be something that I deem to be necessary whatsoever. To some people, to go through a day it is absolutely necessary that they have a cigarette; to me, it's not necessary at all.

Mrs Caplan: What is necessary is for the Ministry of Health to work with the Ministry of Revenue. That's what's necessary. What's necessary is for government to streamline regulations. That's what necessary.

Mr O'Connor: I'm glad you pointed that out, because that's what I said, and we've done that.

Mr Perruzza: We're trying to address five years worth of Liberal incompetence.

The Vice-Chair: Mr Perruzza, sorry, you do not have the floor. Mr McGuinty, would you continue, please. You have the floor.

Mr McGuinty: I always appreciate Mr Perruzza's interjections. The long and the short of it is, that doesn't lend any comfort to me, and I think that we should simply remove clause 18(1)(f) in its entirety.

Mr O'Connor: I appreciate that. I think that what I've offered was perhaps something that could be a compromise. I'll ask legal counsel if they can think of something that perhaps might appease some of the concerns that are being presented here. I think I've stated clearly that it's not the intention we're going to have reports flying out of these retailers all the time.

Mr McGuinty: If it's not the intention, then let's pull it.

Mr O'Connor: But that not being the case, we still need to have that ability should section 8 be problematic. So I'd ask our counsel, Mr Williams. Frank, if you could help us, give your thoughts on what I've made as a suggestion and maybe something else.

Mr Williams: I've just spoken to legislative counsel. She's got all my handwritten scribble there, something to the effect that the report would not be required except where the information under section 8 could not be obtained. Sibylle, do you have the other wording I have there as well?

Ms Filion: If we could just have a few moments so I can get something down on paper, it would be a separate subsection, which would be something like a (1.1), which would read, "A report under clause 18(1)(f) shall not be required unless the report is necessary to verify reports obtained under section 8 or to obtain information that cannot be obtained under section 8."

Mrs O'Neill: If I may clarify, I guess with Frank because he's the one who made the suggestion earlier, this would really only likely affect the big dealers. For the individual stores the information is available through the wholesalers.

Mr Williams: That's true.

Mrs O'Neill: That would certainly come a lot longer way in the amendment than the amendment that Mr O'Connor has just presented.

Mr O'Connor: That's what I was suggesting, that you deal with legal counsel to try to come up with an amendment that's going to address the concerns that you have.

Mrs O'Neill: That sounds a lot better.

Mr O'Connor: I'm just trying to work with my friendly colleagues here.


Mr Williams: My information from Revenue, just to reiterate, is that basically we have no problem getting information on the individual retailers from wholesalers and distributors. It's Ontario corporation 123 that has 10 gas bars that comes and buys from a wholesaler-distributor and we don't know just where in Ontario those gas bars are located and how much tobacco is purchased and goes into each individual location. That's what we're concerned with.

The Vice-Chair: Any other speaker at this time?

Mrs O'Neill: I guess we'll have to wait for the amendment to the amendment, because it'll have to be voted on first. Correct?

The Vice-Chair: No, actually it will not be an amendment to the amendment. Your amendment stands because it's to strike out, as I understand it.

Mrs O'Neill: Okay, so we'll strike it out and then replace it with this?

The Vice-Chair: Replace it as an amendment.

Mrs O'Neill: All right. I think we can go for that.

The Vice-Chair: Do you wish to wait for the wording before you withdraw your motion?

Mrs O'Neill: I'm trusting that it's going to be as has been read. Is that correct?

Mrs Caplan: Very reasonable.

Mrs O'Neill: Okay, then let's go for withdrawing this and putting in something else.

The Vice-Chair: Mrs O'Neill withdraws her amendment to strike out clause 18(1)(f).

Mrs O'Neill: I think we have to have my amendment, don't we, and vote on it to get this out and put that in?

Mrs Haslam: Ms O'Neill's amendment is to withdraw (f)?

Mrs O'Neill: Yes.

The Vice-Chair: It can be withdrawn.

Mrs Haslam: So if we vote on hers and say yes to hers, then we can then put in --

Mrs O'Neill: Yes, that's what I'd like to do, is to get this out. I don't want to withdraw my amendment; I want to vote on my amendment to get this out of here and to get a new thing in.

Mr O'Connor: You may want to amend what we have here, so we may not want to remove it but amend it. Let's wait and see the amendment so your concerns can be addressed.

Mrs O'Neill: Yes, we'll have to wait and see it.

The Vice-Chair: The committee will then await the wording of the proposed amendment for a moment.

Mr Sterling: Mr Chair, on section 18, I don't see why we shouldn't perhaps discuss at this point in time, while we're waiting for the other amendment, clause 18(3)(b), which includes basically what I had proposed in section 5 of the act earlier this week, I guess it was yesterday. That was that clause (3)(b) provides the government with the opportunity to control packaging to the point of having plain packaging, as I read that particular amendment. I guess my question to the parliamentary assistant is, what plans or what kind of timetable can we expect the government to undertake in moving towards plain packaging in Ontario?

Mr O'Connor: I thank you for your question. As I had stated, the minister is at this present time consulting with the other provinces in an effort to develop a national strategy, to come forward with it so that we can approach it on a national basis. When we are dealing with all the jurisdictions across the country, sometimes this type of process can take a bit of time. I would hate to put a timetable to the minister at this point, though it's something that is a priority, there's no doubt.

I guess another part of this section would relate to Mr McGuinty's amendment around the numbers in the package size as well, to clarify where he had put down a minimum pack size. This deals with a number of areas, and I guess for some of the concerns that we heard from people around different ways that people have been able to circumvent the intentions of possibly the plain packaging by having an outer package and an inner package and the outer package being plain and the inner package actually then being a package similar to what we see today.

So there are a number of parts to this, but that's what we deal with in this section. I can't commit the minister to a time frame, though I know it's something that she wants to move forward with and has a great deal of concern on, as do many other Health ministers across the country.

Mr Sterling: Perhaps the parliamentary assistant, between now and when this matter is considered either in committee of the whole House or third reading back in the Legislature, would either speak to the Minister of Health or, if the Minister of Health is in fact going to be carrying the bill at that stage of the game, forewarn her or give her notice that I'm going to be asking the same question at that point in time, that I'd like to get some kind of time line on this.

I think it's much fairer for all parties that people have an idea as to when Ontario is going to act in isolation, if that's necessary. I mean, it's nice to talk about consulting with all of the other ministries, but there are 10 provinces and two territories and there may be some disagreement among them as to when to act and when not to act. Therefore, I'd like to have some kind of idea. I don't think we're going to hold the minister to the day or to the month even, but I'd like to know whether this is a year project or it's a three-month project or it's a two-year project.

I believe that clause 18(3)(b) of this bill has more effect on kids taking up smoking than just about anything else in this bill and therefore I'd really like to get a time line. If you'd be good enough to notify the minister that I'm going to be asking that question and expecting some kind of serious response, I would appreciate it.

Mr O'Connor: I appreciate that and take that as notice and so duly will be recorded in Hansard. I at this point have before me, Mr Chair, a motion that I think will hopefully put to rest some of the concerns around this section that we have been debating for some period of time.

The Vice-Chair: Yes, Mr O'Connor. Would you proceed to read the proposed motion.

Mr O'Connor: I move that section 18 of the bill, as set out in the government motion, be amended by adding the following subsection:


"(1.1) A regulation shall not be made under clause (1)(f) unless a report referred to in that clause is necessary in order to,

"(a) verify reports obtained under section 8; or

"(b) obtain information with respect to the sale of tobacco that cannot be obtained under section 8."

I hope that this can be seen as a friendly amendment under the constructive advice of my colleagues here in the wish to make this legislation as workable as we can and not place undue, strenuous burdens on the retailers in the province.

Mrs O'Neill: Mr Chairman, I would like to place my motion to remove clause (f). We would replace it with --

Mrs Haslam: No, this is an addition.

Mr O'Connor: This would be additional.

Mrs O'Neill: This is a much better (f) than what he's got in here now. Why can't we get rid of what's in here now?

Mr O'Connor: Because it refers to (f).

Mrs Haslam: It qualifies it.

Mrs Caplan: It qualifies (f).

Mrs O'Neill: Well, all right.

Mr O'Connor: What I have here is a qualifier, and I would hope that, Ms O'Neill, when you take a look at it --

Mrs O'Neill: It's hard to deal with something we don't have in front of us.

Mr O'Connor: The good intentions that you've presented to this committee I think are valid concerns and I think that this is a qualifier that will, I believe, be amenable to your concerns.


Mrs O'Neill: Could we have a copy of that before we leave today, please?

Mr O'Connor: Yes.

Mrs O'Neill: I guess I will have to withdraw the amendment. I think I have achieved something for the small business people of the province.

The Vice-Chair: Ms O'Neill withdraws her amendment to section 18. Mr O'Connor, would you at this time present your amendment to your motion.

Mr O'Connor: I believe that I've read that in.

The Vice-Chair: You've read it, but it has not been moved.

Mr O'Connor: I move that section 18 of the bill, as set out in the government motion, be amended by adding the following subsection:


"(1.1) A regulation shall not be made under clause (1)(f) unless a report referred to in that clause is necessary in order to,

"(a) verify reports obtained under section 8; or

"(b) obtain information with respect to the sale of tobacco that cannot be obtained under section 8."

The Vice-Chair: This is an amendment to the motion that you previously moved that's before the committee.

Mr O'Connor: That's right. It's to address the concerns by many of the committee members.

The Vice-Chair: Discussion on Mr O'Connor's amendment to his motion. Anyone wishing to speak to the amendment at this time? If not, the amendment to the motion has been read. All those in favour of the amendment, please indicate. Opposed? Carried.

Mr O'Connor's motion to amend section 18, as amended, is now before the committee. Did anyone wish to speak or are you ready to vote?

Mr McGuinty: I just want to speak very briefly in support of the regulatory authority given here to the government to deal with packaging, and in particular I want to make it clear that it is my understanding that we are hereby giving government all the authority it needs to regulate packaging in every way, shape or form, no ifs, ands or buts. I just want to put that on the record, and if any member of the committee is in disagreement with my statement, I'd ask that they speak now.

Mr O'Connor: Or for ever hold their peace.

Mrs Caplan: Our expectations of government moving on this expeditiously are very high. We all want to see plain packaging as quickly as possible.

Mr O'Connor: I guess given the light in the sense of what Mr McGuinty's presented, maybe we could have legal counsel respond.

Mr Williams: I just have one comment. I would take exception to your buts. This is a tobacco bill.

Mr McGuinty: That's "b-u-t" for the purpose of the record.

Mrs Caplan: Good quip.

The Vice-Chair: Anyone else wish to speak to the amendment?

Mr Sterling: I'm happy to see that the government has made it clear in this bill that it is talking about plain packaging. My concern was that the previous bill was talking about health warnings alone in terms of notices on the package.

As I said previously, my concern was with the explanatory notes in Bill 119 under section 5 which, in my view, was sort of indicative of the kind of overall interpretation one might give section 5 of the bill, that they were talking about packaging in terms of health warnings and health warnings alone.

I'm very happy that they have incorporated into section 18 the kinds of issues which I raised in my amended amendment to section 5 yesterday, that the government will have control over the kind of lettering, the size of lettering, the type of lettering, the kind of colouring, whether it has to be all one colour, what kind of decorative elements they can use on it, if any, and that kind of thing, and the location of that print as well.

I'm very happy that they've included clause (b) of subsection 18(3) in this bill and I'm very supportive of it.

Mrs O'Neill: I wonder if I could ask the parliamentary assistant regarding the prioritization that's going to be given to the criteria and the establishment of the criteria. The last item we dealt with in committee before we went into clause-by-clause was a letter to the ministers, particularly the Minister of Labour, regarding workplace smoking regulations.

This is a very important section of the act. I think half the witnesses at least talked to us about it. I would hope that, in conjunction with the owners, occupiers and operators of this province, this part of the act would be given very strong prioritization. Something should be happening here, I would suggest, by early fall at the latest. I really do believe that I want to have some kind of statement from the parliamentary assistant to that effect, just to satisfy those people, because every single person in the province is going to be affected by this part of the act.

Mr O'Connor: I appreciate the challenges as put to me here. I think we ourselves have come together as a committee and put forward a very strong statement by writing directly to the minister suggesting that this happen in the very near future. I note that my copy of the letter we wrote to the minister appeared on my desk this morning. So as a committee and as a member of this committee, I think that very strong statement we all agree has been made and we had that presented and put forward. I think it's a concern that we do have.

I think there are actually equally important parts of this legislation that will deal with other issues, including workplace issues which we are yet to deal with, but I certainly do appreciate the opportunity to support Mrs O'Neill on that.

Mrs O'Neill: For the record, Mr O'Connor, you also stated that education would be a very high component of the bill and there would be funds devoted to education to accompany Bill 119. I hope that is a priority of this government.

Mr O'Connor: In fact there were substantial amounts of money already spent in this fiscal year, gone out to public health communities throughout the province. As parliamentary assistant, I've had the opportunity to visit many different locations throughout the province and see some of the fine work, this public education you refer to that's necessary, to see some of those components come together. I agree with you it's a very important part of this as well.

Mrs O'Neill: Finally, Mr Chair, I place my request again for those programs that are in place and the moneys that have been set aside and hopefully are flowing to those tobacco growers who are trying to change their production, who are trying to find other ways to support their families. It's my third request.

This is the last day, but I still place the request and trust I will get that. I know that's not Mr O'Connor's area of responsibility, but surely this committee has a right to ask for that through our clerk, through yourself, to the minister responsible, who I believe is the Minister of Agriculture.

Mrs Caplan: I think we're ready to vote.

The Vice-Chair: We have Mr O'Connor's motion, as amended, which replaces section 18. All in favour of Mr O'Connor's motion as amended? Opposed? Carried.

Mr McGuinty: I just want to note for purposes of the record that this passed unanimously.

The Vice-Chair: It passed unanimously. That's correct.

There was a PC amendment to subsection 18(2).

Mr Sterling: I've withdrawn that. I'm not going to present that.


The Vice-Chair: Section 19, a Liberal amendment. Mr McGuinty, do you wish to proceed at this time?

Mr McGuinty: Yes, Mr Chair. I'll begin with section 19.1 of the bill.

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

"Report by chief medical officer of health

"19.1(1) On the first anniversary of the day this section comes into force and annually thereafter, the chief medical officer of health appointed under the Health Protection and Promotion Act shall present a report on this act to the Legislative Assembly.

"Contents of report

"(2) The report shall contain an assessment of the effectiveness of the act in reducing the use of tobacco in Ontario, an assessment of the enforcement of the act and the level of compliance with the act and recommendations, if any, for means of improving the effectiveness of the legislation, including amendments to this act."

The Vice-Chair: Thank you. Did you wish to comment?

Mr McGuinty: Yes. One of the recommendations that was made to us I think time and time again during the course of the committee hearings was that there should be some system for following up and for monitoring the performance of this bill. I'm sure we all have high hopes for it but I think there should be a system in place, as I say, which will allow us to measure its performance in a very real way.

The proposal that I put forward here is one that was made by a number of presenters, which would simply require that our chief medical officer of health, whom I would like to see play a more active role in promoting health in the province -- I know he does, but I'd like to see that role given further profile -- comes back to the House and, via a report, lets us know specifically what kinds of inroads we have been making, and perhaps more important, where we can improve the bill further.

Smoking, especially in so far as it relates to children in this province, has been a problem that has continued unabated for some time. I would like to think that this is not the last of our efforts directed particularly at preventing children from starting to smoke.

We had an interesting example here just recently when we had a coroner who had presided over a coroner's inquest, I think a couple of weeks ago, return to Queen's Park pursuant to a directive contained in the coroner's jury's recommendations that he follow up one year later to report on which of the recommendations had been followed through on by whoever was supposed to do so.

Again, it just called attention to the original problem which brought about the coroner's inquest in the first place and let the public know what kind of progress, if any, was made. That's why, for the very same reasons, I would submit that this kind of a provision will again cause us, as legislators, to focus on this problem and also give notice to the public as to what kinds of advances we've made and what remains to be done.

The Vice-Chair: Thank you. Mr Sterling.

Mr Sterling: I want to strongly support this motion by my Liberal colleagues. As you can see from the motions we've put forward we had a very similar motion, and I don't think they differ that much that it would require me to put my motion, so I'm not going to present that motion at this time.

I think one of the things the committee might want to do after this bill is passed would be to -- if in fact this kind of amendment was accepted by the government; it's something which I think is extremely important in terms of accountability in our Legislature regardless of which government happens to be there.

What I would like to see if this kind of amendment does pass is that the committee call before the committee the chief medical officer of health and ask him or her what kind of method or what kind of reporting or assessment he or she would undertake in terms of carrying through this function.

I say that in terms of having sat on a committee with the freedom of information and privacy commissioner, because if you establish early on how in fact that assessment is going to take place and how the reporting function is going to take place you can save yourself a lot of money and anguish and time by setting up whatever systems you're going to set up to know how the information is going to be required to be spun out to the public.

If this committee, for instance, decides that it wants a certain kind of information and it's going to be collected in a certain manner, then everybody knows how to set up their computers, what kind of software will be needed, and that will be established early on in the game.

I think the idea of having a yearly review of this particular matter would be good. I would hope, if the section was passed, that some time in the spring after it was passed the medical officer of health would come in front of this committee and indicate to the committee how he was going to undertake this kind of reporting and that it would be clear what kind of data he would be collecting, where it would be coming from, so that everybody in the government, everybody in the private sector would know how this was going to be done, so that the collection of that information would be done in the least expensive way and the least bothersome way to all of the people who are required to report under this act.

Mr O'Connor: I really do appreciate this opportunity to speak on this amendment. I think the intention is terrific. I think that we, as members of this committee, really want to see this followed. I have a concern but point out that the chief medical officer of health of this province has taken this issue as probably his key, number one focus.

In second reading debate in the House I quoted Richard Schabas, the chief medical officer of health for the province, and stated that he felt that public health enemy number one was tobacco. His 1991 report to the province was completely dedicated to the issue of tobacco use, tobacco not being his only concern. He does file an annual report, and I think this medical officer of health has been quite diligent in filing these reports on an annual basis.

Committee members will recall that some of this information was presented to us when the chief medical officer of health for the province came to this committee, and he used some of the information in his subsequent report, 1992, and I believe in his report on the heart again mentioned tobacco-related concerns.

My only concern here is that we're going to compel him to annually report on this issue. I think it's something we all agree we need to track, we need to see where it's at. I think annual reporting to it might be a little bit onerous, and then having him reporting to the Legislature goes beyond what he has had mandated to him in the past. That could be a concern.

I think the chief medical officer of health, upon hearing this debate, is going to want to report. In fact maybe what we can do, I would suggest, is that this committee might even want to write to the chief medical officer of health of the province of Ontario, suggesting that he report on a very regular basis to the Legislature where we are headed in so far as compliance with the Tobacco Control Act is concerned, maybe suggestions on how we can improve the direction and where we're going. I worry about our compelling him to report on an annual basis to us as a Legislature something that hasn't been compelled of him in the past. I worry that at some point in the future other issues may come up and we're compelling him to do something that would put him in time frames that might restrict his ability to react to whatever the most current public health concern is of the day.

I think the intention here is fine. I think that compelling him to report on an annual basis in itself does prove to be somewhat problematic, though. I think we've seen a commitment from the medical officer of health to keep this in the forefront as a very serious public health issue, and I don't think that by our not including this in the legislation we're going to see him all of a sudden not talk about this and speak out very loudly and vociferously on the concerns of this public health issue.


Mrs O'Neill: Again, we're having the same situation we had earlier where the parliamentary assistant's interpreting what a person who now presently holds the office might do, or has done even. We're talking about an office, not a person who holds that office or is the officer at this moment.

This is one of the very few health bills -- and there aren't a lot of health bills or bills that refer to health. There are certainly very few bills, period, that have unanimous consent, and this is going to have so. We know this is important. We know it affects 13,000 people minimal -- and that's those who die; that's not those who are affected by all kinds of other medical problems -- and yet we don't want to report on that annually?

I was reading today how drunk driving is now at a standstill as far as its decline. There is a hard core of people, a new study that proves it has reached and bottomed out, as they say. Are we going to let the same thing happen with the tobacco? We need to have an annual report on how we're doing. I'd like certainly to have the medical officer of health come forward with the newest and latest cessation proposals, things that can be done for young people, and make this a priority.

Every person in any position has to have priorities. Sometimes we're in a position to set some of those for the people who work for us, which happens to be some of the people we're talking about right now.

I feel very strongly that this would not be onerous. It sets a priority. It carries it through. It's on an annual basis. This report then goes out right across the province to all the other medical officers of health and is then distributed within the communities. It follows through with this bill being a priority for this province at this time and for ever thereafter.

Mr Sterling: I must say I'm disappointed by the parliamentary assistant's response to this. I think Ms O'Neill makes a good point. We're not talking about a person here; we're talking about an office. That office is the chief medical officer of health in Ontario.

The other part that's important here is that Mr O'Connor acknowledges that the medical officer of health has stated this is the number one problem. So why wouldn't we want him to report on an annual basis to the Legislature as to how it was going? I think what we need to do, if this is the number one problem, is to continue to have a focus on this year after year after year. I might even go further than this. I think this is a fairly minimal requirement.

The only thing I would be concerned about is if the medical officer of health thought the resources that were required in order to do this were so great that it was pulling him off other things where he could use that money in a more productive manner to discourage more young people from taking up the habit, but I haven't heard that and therefore I assume that's not the case.

I want to say that I strongly support this and I think it's a mistake on the part of the government to not continue to have this focus on this number one problem, as the parliamentary assistant has said.

Mr McGuinty: Just to confirm, it may very well prove to be onerous in terms of the amount of work the chief medical officer's going to have to do to fulfil this, but doesn't this problem warrant that? If the parliamentary assistant has said it once, he's said it 150 times: 13,000 Ontarians die every year as a result of a smoking-related illness. He has said that smoking is the single greatest preventable cause of illness in this province.

Mr O'Connor: According to the chief medical officer of health.

Mr McGuinty: I don't have any qualms whatsoever about placing this responsibility on our chief medical officer, and I think it has to be annually. We should have an update annually so that we can measure in a very real way what kind of inroads we're making, and if we're not, what do we do to take corrective measures?

Mr O'Connor: I appreciate the intention here; I think the intention is fine. In fact what we'd like to monitor here through this would be the effectiveness in the intent of the legislation, which is the young people here. I suppose that could even have been mentioned in his amendment.

I think the key here is that we do have and currently do fund the Ontario tobacco research unit through the province of Ontario. They will monitor and they will be watching to make sure and evaluate -- they will be evaluating -- the effectiveness of the entire strategy that we have before us. They will not only be evaluating the legislation but the communications and, of course, as Ms O'Neill raised, the importance of the community action and what's happening there and the support from the communities.

We actually have a unit in the province of Ontario that is doing just that, and we have a committed chief medical officer of health who has been mentioning this in his report and in fact in 1991, as I stated, dealt with this through his entire report. My concern is that we're going to be causing duplication and added government that may be not necessary.

I think we all have some very serious concerns here and I know we have a unit, the tobacco research unit, that is getting funding through the centre for health promotion at the University of Toronto, for example. They are getting funding and they will monitor the effectiveness of this legislation, of the action in the community and the supports out there. We're going to have that reporting. It's not by the chief medical officer of health, so I have some difficulty with that, but I think the intention that you have here is important.

I think we're reaching the intention already, currently. We do have a way of reaching that through what we have in process already. I certainly wouldn't want to take away from what we've been receiving at this point from the chief medical officer of health. He has been reporting on an annual basis and reporting on this issue, but to compel him through this legislation -- I have some difficulty.

Mrs Caplan: The parliamentary assistant has convinced me that in fact the amendment Mr Dalton has placed is a good one. You've just told us that there is a unit in place that can do the work and present the report to the medical officer of health who can then present the report to the Legislature. It's there, it's done, it's not going to require any additional work and you've convinced me that you should be supporting Mr Dalton's and the Liberal amendment.

The Vice-Chair: That's Mr Dalton as in McGuinty.

Mrs Caplan: I'm sorry.

Mr O'Connor: Mr Dalton, Mr McGuinty.

Mrs Caplan: I'm sorry.

The Vice-Chair: That's all right.

Mrs Caplan: Right. My colleague Dalton.

The Vice-Chair: I knew who you were talking about.

Mr McGuinty: I was the only rookie, you see.

Mrs Caplan: It's late in the day.

Mr O'Connor: Mr Chair, I do have further motions I'd like to move. The difficulty we --

Mrs Caplan: Think about this: A legislative requirement for accountability makes sense. I can understand your concern about its being onerous, except that you've now told us there is an institute that you are funding to do the research and to do the work. That work can be made available to the medical officer of health, who can then report to the Legislature. That accountability is good and it should be supported.

Mr McGuinty: It's trite, but I'll repeat it. This is an important issue and we, as legislators, get caught up in all different kinds of things during the course of the year with our various responsibilities and from time to time people have to hit us over the head to remind us how important some particular issues are. They may have to draw our attention to this issue time and time again, and that is my intention in having somebody come forward and report to the Legislature on this problem and the inroads that we have made and the further steps we can take.

Mr O'Connor: I appreciate some of the concerns as raised. I appreciate Mr McGuinty's suggestion that somebody should be doing this reporting, that we hear some reports from somebody about this issue. I would suggest that this committee, given that it's not the chief medical officer of health's unit that is preparing the information, and perhaps he may have some difficulty in signing his name to someone else's report, that perhaps his unit -- I would suggest, so that we can comply with Mr McGuinty's wishes here, that for this unit that is getting funded by the province of Ontario, we get a copy of that report annually. I think every member of the Legislature should get a report from them.


We're not compelling the chief medical officer of health. Let's get on the mailing list for some of the work that's being done in the province right now, and maybe that's an approach that we can do. I have difficulty compelling the chief medical officer of health here. I know that he may and we may -- you have difficulty sometimes signing your name to someone else's work. That being the case, let's get the work that's being done and have that presented to us.

Mr McGuinty suggest that somebody should be reporting to us. That's a reasonable account and perhaps we should get somebody to do it. Maybe we have that avenue open to us. As was suggested by Ms O'Neill on the workplace issue, we wrote a letter together as a committee, and maybe we should do that to this unit and get that report, request that on an annual basis.

Mr Sterling: I'd like to vote on this as soon as possible.

The Vice-Chair: Like right now? Any other comments?

Mr McGuinty: Do I take it the parliamentary assistant's position then is that he would prefer that I substitute for "chief medical officer of health" in my amendment "this committee"?

Mr O'Connor: Mr McGuinty, you suggested that somebody should be doing the reporting. I'm saying that work is being done currently, and that as a committee we should, yes, get that information, because as members of the Legislature we're concerned about that.

We should then get the information that is being put together, whatever mailing list we need to get on so that we can get that information. It might even be on a weekly basis if possible. We could probably go to all the many units across the province that are working on this issue and have updates from right across the province. It would be probably even more far-reaching than what we're getting from your wishing to compel the chief medical officer of health.

Mr McGuinty: If the government is really sincere in its intention to address the tobacco problem in this province, then I think an essential component of any such strategy has to be that we compel somebody to report on our progress. It's not a matter of leaving it up to somebody's discretion or some committee down the road asking for something. We should be compelling somebody to report to us regularly. I think if you're sincere and you're interested and this just isn't a flash in the pan, then you will compel somebody to do so. If it's not the chief medical officer of health, fine. Just give me an alternative and let's put somebody else in there.

Mrs O'Neill: The more that Mr O'Connor speaks, the muddier the water seems to get, because he is now talking about several bodies and he is not talking about presenting a report on this act. This act is different. This act has several components to it. Whether it affects the retail industry, whether it affects the schools, whether it affects the laundry, all of these things are very different and I think that it should be directed to this act. I want a recorded vote on this amendment presented by my colleague.

Mr O'Connor: I guess the key here is that in dealing with all of what we've had discussed here, we've heard discussion that the communication is going to be so important, the grants to the community, so that the grants going to these communities that are going to develop cessation programs, which is part of the entire strategy, which doesn't limit us then to just this act -- that we monitor the strategy, that we are going in the province far beyond what is included in this act, and that we have that.

We're doing that now through the Ontario tobacco research unit, which is at the centre for health promotion through the University of Toronto. We have that ability to deal with not only the confines of the legislation but also the entire communication, the work in the community, and we can go beyond that.

I think what needs to be monitored here is not just the very limited scope of this very important legislation but the entire strategy, which includes all the community work as well, as has been pointed out on many occasions through these hearings.

I guess we're prepared to vote.

Mrs O'Neill: A recorded vote.

The Vice-Chair: Thank you. Anyone else? You've heard Mr McGuinty's amendment. All in favour of Mr McGuinty's amendment at this time?


Caplan, McGuinty, O'Neill (Ottawa-Rideau), Sterling.

The Vice-Chair: Opposed?


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

The Vice-Chair: That is defeated.

Government amendment to section 19.2.

Mr O'Connor: I move that the bill be amended by adding the following section:

"19.2(1) Paragraph 34 of section 210 of the Municipal Act is repealed.

"(2) The Municipal Act is amended by adding the following section:


"213(1) In this section,

"`public transit vehicle' includes a school bus and a passenger vehicle used for hire;

"`workplace' includes a public transit vehicle.

"Bylaw, smoking in public places and workplaces

"(2) The council of a local municipality may pass a bylaw regulating the smoking of tobacco in public places and workplaces within the municipality and designating public places or workplaces or classes or parts of such places as places in which smoking tobacco or holding lighted tobacco is prohibited.


"(3) A bylaw made under subsection (2) may,

"(a) define `public place' for the purposes of the bylaw;

"(b) require a person who owns or occupies a place designated in the bylaw to post signs referring to the prohibition or to such other information relating to smoking as is required by the bylaw;

"(c) prescribe the form and content of signs referred to in clause (b) and the place and manner in which the signs shall be posted;

"(d) permit persons who own or occupy a place designated in the bylaw to set aside an area that meets criteria prescribed by the bylaw for smoking within the place;

"(e) prescribe the criteria applicable to smoking areas in clause (d), including the standards for the ventilation of such areas;

"(f) require areas set aside for smoking in places designated by the bylaw to be identified as an area where smoking is permitted; and

"(g) require the employer of a workplace or the owner or occupier of a public place to ensure compliance with the bylaw.

"Public places

"(4) Despite any definition of `public place' contained in a bylaw made under subsection (2), no bylaw made under subsection (2) shall apply to a street, road or highway or a part thereof.


"(5) A local municipality may appoint inspectors for the purpose of a bylaw made by the municipality under subsection (2).

"Entrance without warrant

"(6) An inspector may, at any reasonable time, enter any public place or workplace designated by a bylaw under subsection (2) for the purpose of determining whether there is compliance with the bylaw.


"(7) Despite subsection (6), an inspector shall not exercise a power to enter a place, or a part of a place, that is used as a dwelling unless,

"(a) the occupier of the dwelling consents to the entry, having first been informed by the inspector of his or her right to refuse consent; or

"(b) if the occupier refuses to consent, the power to enter is exercised under the authority of a warrant issued under section 158 of the Provincial Offences Act.

"Powers of inspector

"(8) An inspector may make such examinations, investigations and inquiries as are necessary to determine whether there is compliance with a bylaw made under subsection (2).


"(9) No person shall obstruct an inspector carrying out an inspection under this section.



"(10) A judge or justice of the peace may, upon application by an inspector appointed under subsection (5), issue a warrant authorizing the inspector to enter, examine, investigate or make inquiries with respect to a public place or workplace if the judge or justice of the peace is satisfied by evidence under oath that,

"(a) the entry, examination, investigation or any inquiry is reasonably necessary for the purposes of determining whether there is compliance with a bylaw made under subsection (2); and

"(b) the inspector has been prevented or is likely to be prevented from exercising any of his or her powers under this section or the inspector has been obstructed.

"Expiry of warrant

"(11) A warrant shall name the date on which it expires.

"Execution of warrant

"(12) A warrant may specify the days and hours during which it may be executed and if there is no such specification in the warrant, the warrant shall be executed between 6 am and 9 pm on any day of the week.

"Use of force

"(13) The inspector may use such force as is reasonably necessary to execute the warrant and call on police officers to assist in the execution of the warrant.

"Application to upper-tier municipalities

"(14) A county, district, regional or metropolitan municipality or the county of Oxford may exercise the powers under this section if a majority of the councils of the area or local municipalities within those municipalities approve the exercise of such powers.

"Conflict with other bylaws

"(15) A bylaw made by a county, district, regional or metropolitan municipality or the county of Oxford under subsection (14) supersedes any bylaws respecting smoking made under this section by the area or local municipalities within those municipalities.

"Repeal of bylaw

"(16) A bylaw made under subsection (14) is repealed if a majority of the area municipalities rescind their approval.


"(17) Any person who contravenes subsection (9) is guilty of an offence.

"Crown bound

"(18) This section binds the crown.

"Conflict with other legislation

"(19) In the event of a conflict between a provision in a bylaw made under this section and a provision of any act or regulation, the provision that is the most restrictive of smoking prevails."

Just in commenting to this, we heard from a huge number of people that it was time that we enabled some municipalities to deal with this issue in a reasonable and responsible fashion locally, and I think this amendment respects the wishes of those many people who came to this committee and made presentations to us.

Mrs O'Neill: I just have a couple of questions of clarification. If I may ask, on subsection 213(1), "`public transit vehicle' includes a school bus and a passenger vehicle used for hire," that I presume includes taxis.

Mr O'Connor: Yes.

Mrs O'Neill: Taxis can, however, still be designated as smoking and non-smoking taxis in a municipality but must be labelled as such. Is that correct?

Mr O'Connor: Yes, and by the municipality.

Mrs O'Neill: All right. So there still can be taxis in which smoking is permitted but they would have to be labelled as such.

Mr O'Connor: Yes. They would be designated that by the municipality.

Mrs O'Neill: All right. The next question is regarding public places in subsection (4), "Despite any definition of `public place' contained in a bylaw made under subsection (2), no bylaw made under subsection (2) shall apply to a street, road or highway."

Are we then suggesting in this that any of the designated places in our section 9 of the act, the street, road or highway in front of them, cannot be smoke-free? In other words, the same thing that's going on right now on Wellesley Street in front of that school can continue to go on, in that the students stand on the sidewalk right outside the fence of the school and that will continue. Is that correct?

Mr O'Connor: I guess that's a public place that would be very problematic in trying to --

Mrs O'Neill: So in each one of the designated spots in section 9, no matter which, the person can just step outside and stand on the sidewalk and there's no problem.

Mr O'Connor: It depends whether the sidewalk is on the property or off the property of the designated spot. If the sidewalk is a public place, is part of a right of way for people, then --

Mrs O'Neill: All right, I just want to clarify that. I think it's particularly crucial in reference to schools and nurseries and perhaps some of these others, but certainly those where there are large numbers of people on a daily basis, many of whom may want to gather to smoke.

Mr McGuinty: I just want to speak briefly in favour of this amendment. We did, as the parliamentary assistant pointed out, hear from a number of presenters of the need to grant the necessary lawmaking authority to municipalities so that they could address the smoking-related problems within their community and at a pace that they felt was in tune with the thinking of the people who live there. It's certainly something that my party and our leader have felt was a way of enabling people, giving people the powers to solve their problems locally. I think it's a very good amendment and I intend to support it.

The Vice-Chair: Any other speaker? We have Mr O'Connor's motion before us to amend subsection 19(2). All in favour of that amendment? Unanimous.

A Liberal amendment to subsections 19.2 and 19.3. Mr McGuinty, is that going forward at this time?

Mr McGuinty: Yes, it is.

I move that the bill be amended by adding the following sections:

"Smoking cessation programs

"19.2 The Minister of Health shall assist boards within the meaning of the Education Act that administer secondary schools in establishing in those schools a program to encourage secondary school students who smoke tobacco to cease smoking.

"Same, OHIP coverage

"19.3 The Minister of Health may require the Ontario health insurance plan to compensate,

"(a) a board within the meaning of the Education Act for the cost of establishing a program under section 19.2; and

"(b) any person for the cost of enrolling and attending a program approved by the Minister of Health intended to encourage the cessation of smoking whether or not the program is established by a divisional board under section 19.2."

My intention here is to encourage the Minister of Health to assist school boards in establishing programs which will help students who are smoking to stop smoking. One of the interesting things we heard in Sudbury from Big Tom, as he called himself to me -- I forget his last name, but he was the principal of the school up there -- was that he found it rather perverse that the board was offering a smoking cessation program to adults, to the teachers, but the kids who were hooked on cigarettes were being left behind and ignored.

He'd begun a program there in which he involved students who were smokers and he'd found, from his own personal experience, that the best way to get at kids who were smoking was through other kids themselves rather than through adults and advertising and the preaching approach. That's what section 19.2 talks about.

Section 19.3 simply is permissive and says that the Minister of Health may want to compensate or to assist financially a board that wants to set up a program that will involve smoking cessation, or the minister may pay for, through OHIP, those programs in which any individual in the province may enrol in order to stop smoking. I think a good financial argument could be made to the effect that it is cheaper for us to pay for someone to unhook them from smoking than it is to pay for the long-term costs associated with treating their various illnesses in whatever form they happen to manifest themselves.


Mrs O'Neill: I strongly support this amendment presented by my colleague. The schools that came before us for the most part had not engaged in cessation programs. We did hear in Sudbury of the -- and I think we were all deeply impressed by the presentation from Lively, Ontario, where students and principal -- and actually they brought their health and safety member to the presentation. They considered it very seriously, seriously enough that they offered as a credit program, for 10 weeks, the cessation program, and there were people there, students, who testified that it had certainly been a benefit.

This is an incentive to boards. It also helps boards that are really struggling now with the choices they have to make. It is a health matter; we've heard that over and over again. If we're going to put any teeth into this bill, if we're going to help people where they spend most of their time -- young people spend most of their time at school in one way or another, and I think data support that -- I really do feel that this is a very positive part and addition to the act that would give boards some direction and encouragement to help the young people they wish to serve.

Mr O'Connor: I appreciate the intent here. I think that it could likely be ruled out of order because we're compelling some costs to be incurred here.

I'd like to point out the fact that the intent in general here is quite well meaning. Right now, health units have a responsibility to ensure that smoking cessation programs are available. I think that after hearing from people like the folks from Lively, there's going to be a need for some programs, because there are young people in schools who have this addiction. That's no surprise to us.

At the same time, they've been able to deal with it locally, not being mandated to, but having done so. The difficulty here is that we have somebody who's mandated to have this program right now; the health units are there. Their responsibility is to ensure that cessation programs are there. They're responsible for the delivery of these programs. The school boards themselves aren't responsible at this point for the delivery of these programs.

In fact there are many different agencies out there right now that currently get moneys from the Ministry of Health for cessation programs, like the Lung Association in some communities, the cancer society in some communities and people with the heart and stroke foundation, for example. There are many different groups out there in the communities that have programs, and I think what you're suggesting here is that they be encouraged maybe to go into the schools and offer these programs.

I think that the problem here is that we're compelling this and we're ordering the ministry to spend the money on this. The ministry is spending the money; it's currently happening. I certainly support the intention you have here and I support all of the people out there in the province right now, all the many different agencies that are all part of the overall strategy, that have been involved in delivering cessation programs throughout the province currently.

Mr Robert Frankford (Scarborough East): I too very much appreciate the intent of the member's proposal here, but particularly on the OHIP section I have some reservations and real doubts whether it actually can stand. OHIP, I think, comes under the Health Insurance Act and it is essentially a way of paying for practitioners on a fee-for-service basis.

I think that we have to be getting away from that and I feel that the approaches which occur right now are in relation to public health and other ways in which the Ministry of Health allocates funds. So I really question both whether it's possible and whether it's desirable to be using OHIP as the vehicle for this.

Mr McGuinty: My intention is, first of all, to recognize that the smoking cessation programs we have now for our kids aren't working. Number two, if I'm a teenager and I smoke, I'm not going to attend a program after school. I've got better things to do with my time.

Where you do have me captive is in my school. I'm going to school. If we're going to deal with kids who are smoking, we've got to go where we find the kids, and that's in the classroom. I think, given the nature of this problem and its extent, that it's quite appropriate for us to implement smoking cessation programs in the school during school hours. This opens that possibility up.

There's no obligation placed here on the Minister of Health to compensate. Section 19.2 says "shall assist." That assistance can be via information and whatever way possible that the Minister of Health may feel appropriate so that we're not tying his or her hands. But, again, it's just to get at the kids where they are, and that's in the classroom, because they are not going to attend extracurricular smoking cessation programs. It's just not in their nature.

Mr O'Connor: I appreciate the intent here. I wish that maybe some other arguments could have been placed that convinced me, but I think that there are a lot of good cessation programs going out there and I don't think the member intended to suggest that there aren't some good ones out there. But I appreciate his intent there.

Mrs O'Neill: A recorded vote, Mr Chairman, please.

The Vice-Chair: We will now have a recorded vote --

Mrs O'Neill: And I'd like to have the two sections broken, 19.2 and 19.3.

The Vice-Chair: -- on Mr McGuinty's motion to, first of all, amend section 19.2. All in favour of Mr McGuinty's motion on section 19.2?


Caplan, McGuinty, O'Neill (Ottawa-Rideau).

The Vice-Chair: Opposed?


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

The Vice-Chair: Amendment to section 19.2 lost.

Mr McGuinty's motion regarding amendment to section 19.3: All in favour?


Caplan, McGuinty, O'Neill (Ottawa-Rideau).

The Vice-Chair: Opposed?


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

The Vice-Chair: Motion lost.

Section 19: All in favour? Opposed? It's carried unanimously.

On to section 20, and there is a government motion to amend.

Mrs Haslam: Mr Chair, I know nobody wants to hear this at 5:30 at night, but what happened to a particular motion that was --

The Vice-Chair: We'll come back to it. It was stood down. There's only one amendment that was stood down.

Mrs Haslam: Yes, I just didn't see it and I wasn't sure whether we --

The Vice-Chair: I thought we'd deal with it at that point.

Mrs Haslam: That's fine.

The Vice-Chair: Thank you for reminding me.

Mr O'Connor: I move that subsection 20(4) of the Human Rights Code, as set out in section 20 of the bill, be amended by striking out "giving" in the sixth line and substituting "supplying."

I think this is a technical amendment and I hope that we have support.

The Vice-Chair: You've heard Mr O'Connor's amendment. All in favour? Opposed? Carried. That's carried unanimously.

Section 20, as amended: All in favour? Carried unanimously.

Now back to the Liberal amendment that was stood down, and that's an amendment to section 9, paragraph 8.1. It was stood down earlier today.

Mr McGuinty: That particular amendment proposes that we ban smoking in doctors' offices. You wouldn't think that would be cause for much concern. Nevertheless, I didn't have time to properly consult and I don't feel it would be appropriate to go ahead with it at this stage, although hopefully in the future we'll be able to reconsider that. So I'm withdrawing it.

The Vice-Chair: Withdrawn. Thank you.

Mrs Haslam: Wouldn't that be covered under paragraph 13, another class, if it's so desired at a later date?

The Vice-Chair: All in favour of section 9, as amended? Carried unanimously.

Section 21: All in favour? Carried.

Section 22: All in favour? Carried.

Section 23: All in favour? Carried.

Shall section 24, short title, carry? Carried.

Shall the long title of the bill carry?

Mrs Haslam: No, short title.

The Vice-Chair: We did short title just then. The short title is the Tobacco Control Act or something, and now we're to the long title. Shall the long title of Bill 119 carry? Carried.

Shall Bill 119, as amended, carry? All in favour?

Mrs Caplan: Recorded vote.

The Vice-Chair: All in favour of Bill 119, as amended? Carried.

Mr O'Connor: Request for a recorded vote here.

The Vice-Chair: All in favour?


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

The Vice-Chair: Opposed? None. And I don't get to vote at this time either.

Mrs Caplan: If you could vote, you would vote.

Mr O'Connor: If you could vote, you would support it.

The Vice-Chair: Shall I report Bill 119, as amended, to the House?

Mr O'Connor: Please do.

The Vice-Chair: All in favour? Carried.

Mr O'Connor: Before we wrap up this session, I would really like to extend my appreciation to the able work that we've had with Brenda Mitchell as she's travelled through the province with us, Frank Williams, legal counsel, and all the people in the health promotions branch who have worked with us.

We also appreciate the support and ongoing support we have received by all of the many people who have followed this legislation through this process. Thanks to OCAT, the Ontario Campaign for Action on Tobacco, who I think have been at just about every hearing we've had, no matter where in the province we've been, and I appreciate the unanimous support we've received with this bill for the most part.

The Vice-Chair: The meeting is adjourned.

The committee adjourned at 1733.