Norm asked—

I live in a low-rise condo in New West. Our Strata bylaws prohibit anyone from smoking in common areas, including decks and patios. The resident in the unit below me is a smoker. He stands in the patio doorway of his unit and holds his cigarette outside. He also blows the cigarette smoke outside. If I have my patio doors open, the smokes comes directly into my unit, which is several times a day. It’s a problem year-round, but obviously worse during the summer. After many complaints to the Strata Council, they say there is nothing they can do because technically he is standing inside his unit. I’m wondering if Bylaw 7583, 2014 3(p) would apply in my situation?

I was just flipping through Bylaw 7583, 2014 yesterday and…. um, no, I’m kidding, I had to look this up. And it wasn’t the easiest Google.

The City’s Smoking Control Bylaw 6263, 1995 regulates smoking within the limits of the City’s jurisdiction. Bylaw 7583, 2014 is an amendment to that Bylaw which includes your cited Section 3(p). Altogether it reads:

3. No person shall smoke:
(p) within 7.5 metres of any opening into a building, including any door or window that opens and any air intake;

Which sounds like a slam-dunk, except that Section 4 of the Bylaw reads:

The provisions of this Bylaw do not apply to private residential properties

So just like a homeowner is allowed to make rules about smoking in their own house or backyard, your strata is allowed to make such rules about smoking around doors, balconies, and common areas on your strata Lot. And I feel your pain, as MsNWimby and I once lived in an apartment where the person downstairs was a smoker, and there were no rules preventing them from second-hand fumigating our apartment. If your strata has an anti-nuisance Bylaw, and you manage to argue to the strata council that your neighbour’s action constitute a nuisance, you might get some relief, but unless one or the other of you move, there is no quick fix here. Unfortunately, there is also not much technically or legally the City can do.

This is, I suspect, going to become an increased problem in the next short while as cannabis legalization causes those who choose to use the product to be less bashful about it, and strata councils are going to be uncertain how to manage it.

The enforcement of smoking laws is really difficult for a City – the nature of the offence is that it is short-lived and ephemeral. There are varying and possibly overlapping rules between private property, city property, and other public property (i.e. enforcement around New West Station) and our Bylaw officers do not have a lot of power to detain or force people to give them ID.

Alas, I don’t know what we can do other than rely on public education and peer pressure to manage the nuisance, and it seems to me that there is currently no public pressure to change the behavior of smokers. I sat near New West Station the other day for 30 minutes watching person after person stand right next to a “No Smoking” sign and light up. Every single one of them tossed the butt on the ground. The tossed butt alone is a $200 fine, but not a fine anyone enforces, because cigarette butts are the last bastion of free littering, despite their significant impacts on our storm drainage systems and river ecosystems. Smokers don’t seem to give a shit, nor do most of the public it seems.

I’d love to see if a Bylaw crackdown would work to address this, but also recognize much of this behavior is by people already marginalized and for whom interactions with the Strong Arm Of The Law could have seriously negative consequences. There is also the addictions issue – being addicted to nicotine is a medical condition for which there is limited access to support, especially for marginalized populations. Unlike alcohol, smokers cannot go into a pub to get their fix, and if they are lower income, they are more likely to live in a setting (rental or other shared housing) where they are legally not able to use it in their own home. Parks and most public places are also illegal. They are addicted and suffering from a prohibition – not a legal one, but a geographic and socio-economic one. We can debate the addictive properties of cannabis, but the situation is essentially the same.

So short version is I don’t know what to do. In your condo or as a City. You can check to see if your building’s nuisance bylaw is any relief, but I suspect that is a long row to hoe, with questionable results. The City could have Bylaw Officers and police walking the streets telling people to put those things out, handing out fines if appropriate, but I am not sure it is the way to change behavior or community standards, and I wonder about our actual ability to collect on those fines and the potential for further marginalizing people. I’ve banged my head against this sine I started on Council, everyone agrees that someone should do something. I’m open for suggestions.