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Nonsmokers Have Rights, But Smokers Don't – Canada Agrees With U.S.
Nonsmokers have a right to be protected from neighbors who smoke in their own apartments, but smokers – even addicted ones – can't complain about discrimination, according to recent actions by a Canadian human rights agency, notes litigator
In what is being called a "landmark decision" which has raised the ire of smokers, the BC Human Rights Tribunal ruled that landlords must respond to demands from tenants that they be protected from tobacco smoke drifting or re-circulating from a smoking tenant's apartment.
Shortly after that decision was handed down, another nonsmoking couple filed a similar complaint with the agency. As a result, their smoking neighbor was pressured to install an expensive exhaust fan, and the apartment complex adopted a "no smoking allowed" bylaw.
"With this new legal remedy, nonsmoking apartment dwellers and condo owners in Canada can now vindicate their legal rights, just as they have increasingly been able to do in the U.S.,” says Banzhaf.
Interestingly, in 2009 the agency initially agreed to hear a complaint from an individual who claimed she was fired for her "smoking addiction." However, law professor Banzhaf filed a legal response, pointing out that: “There is no recognized 'medical condition' called 'smoking addiction' since the addiction . . . is to nicotine and not to smoking."
"Furthermore, any such nicotine addiction does not constitute a 'physical or mental disability,' and it can be satisfied in many ways” other than by smoking [e.g., with nicotine gum, patches, etc.]. The agency has not proceeded, leaving one leading attorney to conclude: "For now, at least, there are no 'smokers rights' in BC."
Banzhaf, who first developed the legal theories under which nonsmokers are able to take legal action against smokers and those who permit smoking, has written a legal analysis concluding that there is no legal or moral right to smoke. This conclusion has been accepted by hundreds of judges in the U.S., as well as by others in different countries. A high court in Great Britain has also held that prohibiting all smoking by mental patients in their own residence units – to which they are involuntarily confined – did not violate their human or other rights under the far-reaching EU Convention on Human Rights.
"If a man's home were ever his castle where he could smoke whenever he wished, that principle no longer applies in the 21st century, where smoke can and does drift into other people's castles where, according to the Surgeon General and other federal agencies, even a minute amount can create deadly health hazards.”
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
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