Letting patrons light up costs bar owner $2,550
Jenkinson disappointed with smoking ruling -MB Wed, March 12, 2008 By PAUL TURENNE, SUN MEDIA Robert Jenkinson, the owner the Creekside Hideaway Motel in Treherne, said he is disappointed with today's Court of Appeal decision that ruled the province's smoking ban should stand. Jenkinson had previously won an appeal against allowing people to smoke in his bar despite the ban, arguing the law unfairly discriminates against non-native business owners because it does not apply to on-reserve establishments. Queen's Bench Justice Albert Clearwater accepted that argument and overturned Jenkinson's conviction. However, the Court of Appeal of Manitoba released a decision this morning ruling Clearwater erred in his decision, and that the law does not discriminate against non-native business owners, and that it is in line with the Charter of Rights and Freedoms. The court is now restoring Jenkinson's convictions. "To be honest I'm disappointed," Jenkinson told the Winnipeg Sun. "If we're going to have a ban I think it should be for the whole province. This creates an un-level playing field." "We all want to live in a society that's equal. I think this just separates us further from what the First Nations want and what we all want," he said. Jenkinson said he would likely take his fight no further, saying it could cost thousands of dollars to take his case to the Supreme Court, which may or may not hear it. "I can't see it in the foreseeable future that we're going to carry on with this," he said. "Things could change but right now I don't think so." Read
Treherne bar owner disappointed, considers jail -MB Updated: March 12, 2008 at 12:18 PM CDT By: Bruce Owen A Treherne bar owner is considering going to jail rather than paying fines for violating the province's more than three years ago. "Why not?" Creekside Hideaway Motel owner Robert Jenkinson said. "I could do weekends. I have substantial lawyer's bills because of all this." Jenkinson was reacting to news the province's highest court ruled he was not discriminated against when the province brought in its smoking ban in 2004. Today's unanimous decision means 13 convictions against Jenkinson for violating the ban have been reinstated. Under the law, which bans smoking in public places, individuals can be fined up to $500 and businesses a maximum of $3,000. Jenkinson first went to court claiming the ban was discriminatory because it did not apply to First Nations communities. The Manitoba Court of Appeal rejected that argument. Jenkinson said he was disappointed in the decision. "All it means is that there are two rules - one for First Nations and one for the rest of us," he said. "The Manitoba government doesn't want to look after the health of First Nations' people. If it's good for one, it should be good for the other." Last year the South Beach Casino at Brokenhead First Nation was allowed to double its fleet of 300 video lottery terminals in return for enforcing the province's indoor smoking ban. Jenkinson said even more than three years on his business suffers because smokers go somewhere else for entertainment. Treherne, a community of about 800 people, is located about 100 kilometres southwest of Winnipeg. The NDP has said it would enforce the ban on First Nations and other federal land because it doesn't have clear jurisdiction there and isn't willing to risk a court challenge on the issue. Read
Cig issue goes higher -MB January 19, 2007 Monnin lets province appeal decision on reserves The battle over Manitoba’s anti-smoking law is heading to the province’s highest court, where it is likely to turn into a debate over whether provincial laws apply on Indian reserves. Court of Appeal Justice Michel Monnin decided yesterday to allow Manitoba to appeal a lower court ruling last fall that said the province’s no-puffing-in-public law was unfairly discriminatory because it didn’t apply to reserves. Non-native bar owners, who say they have lost customers to smoker-friendly bingo halls and casinos on reserves since the smoking ban took effect in 2004, heralded the Court of Queen’s Bench decision and want it upheld in the higher court. “The application of provincial law, it’s very important ... that it’s applied equally,” Jim Baker, president of the Manitoba Hotel Association, said outside court. But aboriginal groups, along with the Manitoba government, argue reserves have the right to set their own smoking rules. They’re worried last fall’s ruling could set a precedent for other provincial laws to be forced upon them. “It’s really a question of jurisdiction,” said Norm Boudreau, lawyer for the Roseau River First Nation. The court has yet to set a date for the appeal and must first decide whether Roseau River and a group representing dozens of reserves in northern Manitoba will be allowed to intervene. Ontario has been grappling with a related issue since the Smoke Free Ontario Act became law last June. After vowing to allow no exemptions at all, the government has given provincially owned casinos the OK to build smoking rooms. And in Alberta, the new health minister has suggested he would like to see a public ban that wouldn’t exempt casinos and bars, as the current legislation does. The Manitoba case started when a provincial court judge convicted and fined Robert Jenkinson, a bar owner in Treherne, for letting customers smoke. Jenkinson appealed, arguing the law violated his constitutional right to be treated equally. The Queen’s Bench judge who heard his case agreed, ruling the province had the duty to enforce its law on native reserves. Jenkinson’s lawyer expects the case will eventually reach the Supreme Court and set a precedent for other provinces. The Appeal Court arguments will focus in part on a section of the federal Indian Act that says provincial laws can apply on native reserves if they are deemed to be of “general application” — laws such as highway speed limits applying to everybody. Boudreau says the smoking law is not one of general application because it exempts areas deemed by the province to be outside its jurisdiction, including federal military bases and prisons. Even if the province were to lose its appeal and be required to enforce its smoking law on reserves, band councils would likely be able to get around it by passing bylaws that allow smoking. Under another section of the Indian Act, provincial laws generally cannot supersede native bylaws. Indian Affairs Minister Jim Prentice has indicated he will not stop band councils from passing them. — Canadian Press Read
Smoking ban victor handed hefty lawsuit -MB October 16, 2006
By Jeff Keele The man who won a court battle overturning the provincial smoking ban is facing a $248,000 lawsuit. The Business Development Bank of Canada is suing Treherne's Robert Jenkinson for the outstanding amount it claims is owed from a $300,000 loan. The lawsuit claims the debt was incurred as a mortgage against Jenkinson's business the Creekside Hideaway Motel. The allegations have not been proven in court. Jenkinson was charged in 2004 with violating the provincial smoking ban. He appealed the violation and eventually won a court decision this summer arguing the legislation was discriminatory because it did not apply to First Nations. The Doer Government has since appealed the Court of Queen's Bench ruling while extending the ban to First Nation's gaming and liquor establishments. Read
Ruling could jeopardize smoking ban -SK, MB August 16, 2006
Anne Kyle, The Leader-Post; with files from Canadian Press A Manitoba bar owner has successfully challenged that province's anti-smoking legislation banning smoking in public places. On Monday Manitoba Court of Queen's Bench Justice Albert Clearwater ruled that the ban on smoking in public places should apply equally on aboriginal reserves. It is the same argument the Saskatchewan Hotel and Hospitality Association says it has been making since the introduction of a provincewide smoking ban here. "We have maintained all along that there has to be that level field for competition in the industry,'' said Tom Mullin, association president and CEO. Clearwater's decision overturns the conviction of Manitoba bar owner Robert Jenkinson, who had been found guilty in September of breaking that province's smoking ban. Jenkinson appealed, arguing the law wasn't fair because it didn't apply on reserves. Clearwater agreed the ban discriminates against Jenkinson and businesses like his, saying in his ruling that the law "results in unequal treatment of them under the law on the basis of race.'' Clearwater also said the Manitoba legislation, which exempts public places on "lands reserved for Indians,'' from the smoking ban, denies aboriginals the protection from cigarette smoke that people off reserves get. "We'll be watching what happens in Manitoba because undoubtedly the government will appeal the decision,'' Mullin said, adding the association would like Saskatchewan to reintroduce designated smoking rooms. "I don't think the government wants to get into a jurisdictional battle with First Nations on this issue because it might snowball on other things. "I think the government will meet with First Nations and see if any kind of compromise can be reached. We'll be watching the situation closely because our business is down and we want to make sure the competition is equal,'' Mullin added, noting VLT revenues are down 12 to 15 per cent and on-table liquor and beer sales by 25 per cent. But George Peters with Saskatchewan Health said Manitoba's law is quite different from Saskatchewan's legislation because it specifically exempted First Nations and that was the basis of the ruling. "The Saskatchewan legislation is called a law of general application and it would apply throughout the province, but it ends up on First Nations reserves to be superseded by other legislation under the Indian Act,'' Peters said. "First Nations are able to pass health-related bylaws and if they do and if they are in conflict with provincial law, that law becomes paramount. "So the situation here is quite different,'' he added, noting the department is still hopeful the First Nations leadership will pass bylaws imposing a total ban. Donna Pasiechnik, Saskatchewan's tobacco control co-ordinator with the Canadian Cancer Society, said she is confident based on what the government said and on public opinion that designated smoking rooms will not resurface. "From a health perspective they are a bad idea and I don't suspect we will go backwards at this point in time,'' Pasiechnik said. Read
Butt ban to stand
August 15, 2006 - A judge has struck down a section of the province's butt ban that exempts reserves from smoking legislation. The Non-Smokers Health Protection Act, which took effect in October 2004, essentially bans smoking in all public places but does not apply to federal government buildings, military bases or "lands reserved for Indians." In a written ruling released yesterday afternoon, Court of Queen's Bench Justice Albert Clearwater said the legislature erred in deciding it did not have jurisdiction to regulate smoking in public places on reserve lands.
Sask. hotels association disputes tobacco surveyApril 07, 2006
REGINA -- The CEO and president of the Saskatchewan Hotel & Hospitality Association says numbers in a recent tobacco control survey don't add up. Part of the survey, released by the Canadian Cancer Society on Monday, examined the economic impact of the public smoking ban implemented Jan. 1, 2005. When people were asked if they went more or less often to a bar since the smoking ban was implemented, the survey showed attendance increased by one per cent in cities and decreased by five per cent in rural areas. At rural bars, afternoon business from regulars has dried up, Tom Mullin said. And those who do go to a bar don't stay as long, he added. He said the customer base in rural Saskatchewan has eroded because residents have migrated to the cities and many young people who were bar regulars have left the province. "You couple that with the smoking ban in place and I would argue that we're anywhere from 25 to 35 per cent down in revenues," Mullin said. The survey only tracked attendance, said Donna Pasiechnik, tobacco control co-ordinator for the Canadian Cancer Society, Saskatchewan division. "We know from other places where there is a smoking ban that there is often a temporary drop but eventually, once people get used to it, everything levels out," she said. Seventy-four per cent of survey respondents answered yes when asked if a small reduction in business would be acceptable given the health benefits of a public smoking ban. Mullin disagreed. "We've shouldered the full blow of the smoking ban and when you lose your on-table sales and a big percentage of your VLT revenues, it's hard to convince any of our members that it's a health issue over a business issue," Mullin said. The survey also showed that 37 per cent of Saskatchewan residents support legislation for smoke-free patios. In Saskatoon, which has had smoke-free patios for one year now, the response was 52 per cent. Read
Manitoba bar owner challenges smoking ban
By MICHELLE MACAFEE
PORTAGE la PRAIRIE, Man. (CP) - The Manitoba government must either extend its provincial smoking ban to include aboriginal reserves or abandon the law altogether to give businesses a level playing field, a lawyer challenging the law argued Thursday.
In making a second attempt to have the ban declared unconstitutional, Art Stacey told an appeal judge the law discriminates against non-aboriginals because it doesn't apply to reserves.
As a result, his client Robert Jenkinson, who operates a motel and bar in Treherne, has seen a 35 per cent drop in business since the law came into effect Oct. 1, 2004 and has had to lay off 10 of his 18 employees.
He says many of his customers are going to bingo halls at two nearby reserves, where they are free to smoke.
The law "takes what was an otherwise level playing field and tilts it on the basis of race," Stacey told Queen's Bench Justice Albert Clearwater.
The 16-month-old law bans smoking in bars, restaurants and other public places but does not apply to reserves, military bases or other areas the government says are outside its jurisdiction.
Jenkinson was the first person charged under it. Last September he was convicted of 13 charges, including letting customers smoke, and was fined $2,550.
The case is being closely watched both by provinces that have similar legislation, such as Saskatchewan and New Brunswick, and by those planning it, such as Ontario.
It's believed Manitoba is the only province that deliberately exempted reserves.
Jenkinson said a lot of his initial supporters, some who showed up in court wearing Can the Ban T-shirts, have become doubters or had to turn their attention to their own financial struggles.
But he said he's determined to fight on.
"I feel very positive,"Jenkinson said during a break in the proceedings. "I really believe in the charter, I really believe in being a Canadian and I really believe in an even playing field."
Stacey said other factors adding to the discrimination argument include the fact Jenkinson is not allowed to move his business to a reserve because he's not a band member.
Aboriginals could also argue they are being treated unfairly because the government is not giving them the same protection against second-hand smoke as other Manitobans, he added.
Crown prosecutor Cynthia Devine argued Jenkinson doesn't meet the test for an equality case under the Charter of Rights and Freedoms because he's not part of a visible minority or historically disadvantaged group.
"How can it be said that Mr. Jenkinson belongs to a group that is being stereotyped?" Devine asked Clearwater.
"He has not been routinely discriminated against like some of Canada's minorities . . . The sole effect in this case is economic."
Even the economic argument is tenuous, she added, because Jenkinson chose to leave his ashtrays out the day the ban went into effect - before he could have possibly lost money.
Clearwater reserved his decision, but ended the day by asking Stacey some pointed questions about whether economic disadvantage amounts to discrimination.
He used the example of an accountant working near a reserve who might feel he's being discriminated against because he must charge his clients taxes while those who visit an accountant on the reserve would pay less.
"You're really asking the courts to move into the law-making business," said Clearwater.
"More and more, courts are being asked to weigh in on the quality of laws instead of the legality." Read
Bar owner slams native exemption -MB
By TERESA FALK, SUN MEDIA Fri, February 17, 2006
PORTAGE LA PRAIRIE -- And the fight goes on.
Treherne bar owner Robert Jenkinson returned to court yesterday to appeal a provincial court decision that found him guilty of violating the province's butt ban, which outlaws smoking in all enclosed public areas.
In September, Jenkinson was found guilty of 13 charges under the Non-Smoker's Health Protection Act, which came into effect in October 2004, and fined approximately $2,500.
His lawyer, Art Stacey, told court yesterday that his client, owner of Creekside Hideaway Motel in Treherne, doesn't take issue with the butt ban, but rather the uneven playing field the legislation created.
All First Nations communities are exempt from the smoking legislation, which allows restaurants, bars and casinos on reserve land to permit smoking inside their establishments.
"It takes what was a level playing field and tilts the field on the basis of race," he said.
He said the smoking ban has had a "devastating" impact on his business, with revenue down 35% since the ban came into effect.
Support from other rural hotel and bar owners may have also taken a hit. Only one supporter appeared in court yesterday.
Justice Albert Clearwater reserved his decision. Read
Gov’t action key to survival, rural hotel owners say -MB
BY JOYANNE PURSAGA Central Plains Herald-Leader Saturday November 12, 2005
Portage la Prairie — For at least six rural hotels, butting out could soon mean going broke, according to a spokesman for Manitoba Association of Rural Hotel Owners.
Gary Desrosiers said the province’s smoking ban has left some hotels on the verge of closure.
“Time is of the essence here,” said Desrosiers from his Brunkild hotel restaurant on Nov. 3. “There are a few guys who are on the edge and need something to happen right away.”
The rural hotel association met on Nov. 2 (2005)and organized a lobby to help reverse profit declines they blame on Manitoba’s smoking ban.
The ban took effect on Oct. 1, 2004, outlawing smoking in enclosed public places and workplaces.
The association will push the province to permit the following:
• Allow the sale of spirits at vendors.
• Increase flexibility in service hours.
• Allow poker tournaments in bars.
• Abolish minimum liquor prices.
• Increase bars’ profit margin for vendor beer.
• Allow the wholesale purchase of liquor.
• Increase hotels’ VLT revenues.
Desrosiers said bars located close to First Nations facilities, which fall under federal jurisdiction and are excluded from the ban, have suffered most.
“I know people who have lost 70 to 80 per cent of their business because they’re close to First Nations,” said the Brunkild Bar and Grill owner.
Desrosiers said rural hotels rely on their bars to supplement high vacancy rates.
“The bar pays all my bills here,” said Desrosiers.
Robert Jenkinson, the first bar owner charged under Non-Smoker’s Health Protection Act for allowing smoking in his business, said the gap between First Nations and other liquor sellers is unconstitutional.
“We need a stable, level playing field,” said Jenkinson.
On Sept. 29, the owner of Creekside Hideaway in Treherne was found guilty of 13 charges under the act and fined $2,500.
But his legal battle has just begun.
With the rural hotel association’s help, Jenkinson plans to appeal that ruling to Court of Queen’s Bench.
He said he doubts the government’s smoking policy is solely motivated by health concerns.
“I say, if it’s a health issue, don’t sell the cigarettes and then we have no issue,” said Jenkinson.
But Portage la Prairie MLA David Faurschou supports the legislation.
“We’re recognizing societal values are changing and the numbers of individuals who smoke are dwindling,” said Faurschou on Nov. 3. “Changes in society will always bring some hardship in transition.”
The MLA does, however, object to the act’s failure to ban smoking in all public places, including those run by First Nations.
“If all are to be regulated under the law, there should not be any exclusions,” said Faurschou. “We’re all Canadian and we rely on the same health system and the effects of smoking unquestionably have an impact on that system.”
Healthy Living Minister Theresa Oswald said the province cannot apply the ban to First Nations.
“We simply have no choice about whose jurisdiction it is to make that decision,” said Oswald in a telephone interview on Nov. 3.
She said tobacco’s potential harm to Manitobans’ health, through its links to stroke, cancer and heart disease, make it too potent to ignore.
“It absolutely is something that needs to outweigh financial considerations,” she said.
Oswald said the province has taken some “politically unpopular” steps to bolster bar sales since the ban started, such as allowing hotel owners to sell liquor on Sundays and enhancing their VLTs.
She said she’s unsure if any of the association’s demands can be met, but is open to “creative solutions.”
*reported in many Manitoba papers, this is the most complete version
Letting patrons light up costs bar owner $2,550
September 30, 2005
By NATALIE PONA, COURTS REPORTER
A constitutional challenge of the province's butt ban went up in smoke yesterday when a judge convicted a rural bar owner of letting customers light up.
Provincial court Judge Murray Howell ordered Robert Jenkinson to pay $2,550 in fines and costs for 13 convictions of breaking the smoking ban.
"It's a very disappointing day for business owners in Manitoba," Jenkinson said outside court after the decision was heard.
Under provincial legislation, smoking is banned in most enclosed public places.
Jenkinson had argued the ban discriminates based on race because it doesn't apply to First Nations communities.
He said the ban, which took effect last year, has slashed his customer base by nearly half to his bar in Treherne, Man.
His patrons now go to bars on nearby reserves where they can smoke, he said.
"Something's got to change. All I'm looking for is an equal playing field," he said.
Howell dismissed Jenkinson's defence, saying the ban is "constitutionally valid legislation."
"The mere fact of differential treatment by the law between those on reserves and those off reserves does not in itself constitute a breach of ... the charter," Howell wrote in his decision.
Plans to appeal
Art Stacey, Jenkinson's lawyer, said he plans to appeal.
In light of yesterday's ruling, Health Minister Tim Sale said he plans to call on Ottawa to implement a similar smoking ban on reserves.
"I'll be putting it on the agenda with (federal Health Minister) Mr. (Ujjal) Dosanjh, but the laws that they frame will obviously be their responsibility," said Sale, adding he is equally concerned about smoking on reserves.
"I think there are many people in reserve communities and reserve leaders who feel that smoking is a real problem, and they are prepared to take action."
The minister also said the judge's decision vindicates the province's approach to the smoking ban.
The Manitoba Hotel Association helped pay some of Jenkinson's legal fees but it likely won't participate in any challenge to yesterday's ruling, president Jim Baker said.
Entrepreneurs have argued they're losing customers to casinos and other businesses on reserves that are exempt from the smoking ban.
"I think this issue has all but exhausted itself," said Brokenhead Ojibway Nation Chief Tina Leveque, whose band operates the recently opened South Beach Casino near Grand Beach.
"First Nations have no impact whatsoever in the making and creation of provincial laws. If the people of Manitoba have an issue with their lawmakers, there's avenues they can pursue."
By now, most operators have adjusted to the law, said Larry McLennan, president of the Manitoba Restaurant and Food Service Association.
"The ruling is almost anti-climactic," he said. "Whether they like it or not, they've moved on."
Now that the provincial bylaw has passed a court test, Mayor Sam Katz and some councillors are musing about snuffing out the city's smoking bylaw.
The ruling got them thinking the higher government law may make their two-year-old municipal clampdown redundant and an unnecessary expense to enforce, said Katz.
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