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Old 07-27-2005, 02:04 PM   #1
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No-smoking law favours aboriginals

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FROM: THE MONTREAL GAZETTE NEWSPAPER WEBSITE

_http://www.canada.com/montreal/montrealgazette/news/story.html?id=272134e3-45
53-44aa-96a7-f77a15a0f993_
(http://www.canada.com/montreal/montr...7-f77a15a0f993)

No-smoking law favours aboriginals

bar owner: First person charged under Manitoba law
STEVE LAMBERT CP

July 19, 2005


Manitoba's anti-smoking law has been described as discriminatory and
un-Canadian by a bar owner whose trial has become a constitutional battleground.
"I just honestly believe that there should be one set of rules for all
Canadians," Robert Jenkinson testified yesterday.
Jenkinson was the first person charged after Manitoba's law was introduced
last October.
It bans smoking in bars, restaurants and other public places, but does not
apply to Indian reserves.
Jenkinson's lawyer, Art Stacey, said the unequal application of the law hurts
non-aboriginal business owners. He said the charges should be dropped
because the law violates Section 15 of the Canadian Charter of Rights and Freedoms,
which guarantees people equal treatment under the law.
"If the application of the law frustrates you or prevents you from enjoying
opportunities that other people enjoy ... that's discrimination," Stacey said
outside court.
But crown lawyer Cynthia Devine said Section 15 of the charter is aimed at
visible minorities and others who have been historically disadvantaged - not
white male business owners such as Jenkinson.
"This particular applicant does not belong to a group that has historically
suffered (discrimination)," Devine told the court during her opening
arguments.
Devine also said the law is based on the location of a business - either on
or off reserve - not on the ethnic origins of the proprietor.
The Manitoba government has said it does not have clear jurisdiction over
smoking on Indian reserves. Military bases, airports and other areas under
federal jurisdiction are also exempt from the smoking ban.
The trial is being watched in other provinces that have followed Manitoba's
lead.
In Saskatchewan, where a similar smoking ban was introduced in January, the
Hotels Association of Saskatchewan is scheduled to appear in court Thursday to
ask that the law be overturned under Section 15.
Ontario plans a province-wide smoking ban for next year.
Manitoba bar owners have said the smoking ban has cost them a lot of money,
because smokers are now either staying home or going to casinos and bingo
halls on reserves, where they can light up whenever they want.
"I've had very little sleep, I'm getting more stressed out," said Jenkinson,
who told the court he used to get more than 100 people in his bar on karaoke
nights, but now gets only about 40.
Jenkinson's lawyer is also arguing the flip side of his constitutional
argument - that the law also discriminates against aboriginals because it does not
provide them with the health benefits of a smoking ban.
The trial is scheduled to end tomorrow.
The Gazette (Montreal) 2005
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