CALGARY, Alta./ Troy Media/ - Ontario's goal to help people make healthier choices by strengthening smoking and vaping laws is a perfect example of Nietzsche's aphorism to take care when battling monsters that you don't become one yourself.
Here's why. The Making Healthier Choices Act - true Orwellian doublespeak - treats vaping as if it was as harmful as smoking. This imaginative warping of the facts requires the province to ignore the growing scientific evidence that whether inhaled directly or second-hand, vaping is not associated with any of the negative health effects of inhaling combusted tobacco products. Treating the two as if they were equally harmful will have the monstrous result of keeping smokers smoking, thereby risking their health and lives.
The e-cigarettes used when vaping contain no tobacco and are not burned like traditional cigarettes. Instead, the vapor they emit contains nicotine and other ingredients that are electronically vaporized then inhaled. Public Health England - that country's equivalent of Health Canada - released an extensive analysis last summer finding the "best estimates show e-cigarettes are 95 per cent less harmful to your health than normal cigarettes, and when supported by a smoking cessation service, help most smokers to quit tobacco altogether."
Ontario is making a mistake. Casting aspersions on nicotine addicts will not yield the positive result of smokers making healthier choices. If the province wants smokers to make healthier choices, it should promote harm reduction. And vaping is just the thing. Replacing cigarettes with vaping reaps health benefits within weeks, even days. It is entirely irrational for Ontario to erect needless barriers to vaping. To an addict struggling to quit, the choice is simple - vaping is a life-saving intervention.
Needless barrier one: Since vaping delivers less nicotine than smoking, forcing vapers to go outside and stand among smokers undercuts the efficacy of using e-cigarettes. It's like holding an AA meeting in a bar at happy hour. Vaping won't work in that context when your body craves the next hit of nicotine. The fiction that smoking and vaping are equally harmful will undermine smokers' efforts to take up the less risky habit.
Needless barrier two: Since Ontario plans to ban vaping in all public spaces, customers of vape shops will no longer be able to sample a product prior to purchase to make sure it's suitable for them. This is an important service that helps vapers to use their devices safely and effectively. The City of Calgary recognizes this and exempts vape shops in its bylaw.
Why the push to erect these barriers? Perhaps it's because children will observe and become smokers? That canard has been conclusively dismissed by the evidence - vaping is not a so-called "gateway." Perhaps it's the "Bootleggers and Baptists" phenomenon where two polar opposite groups find a common interest in promoting simplistic prohibition-era thinking on a complicated, nuanced topic? Or perhaps anti-smoking activists can settle for nothing short of punishing all their perceived foes instead of compassionately advocating for life-saving harm reduction alternatives to smoking?
Whatever the province's misguided motivation, this legislation is going to attract constitutional scrutiny as an irrational and arbitrary restriction of Charter 7 rights. Sure, Ontario is permitted to enact public health and safety laws, but those laws cannot violate the rights to life and security of the person in an irrational or arbitrary fashion.
In a comparable 2011 case, the Supreme Court of Canada ruled that the federal government must renew a Controlled Drug and Substances Act exemption for the Insite safe injection clinic in Vancouver's downtown eastside. The exemption permitted clients to inject illicit drugs under the supervision of medical staff without the risk of arrest. Ignoring the evidence, the federal minister responsible refused to renew the exemption in 2008 and the clinic initiated legal proceedings.
In that case, the evidence was clear - the clinic successfully reduced harm by saving lives and improving the health of those using its services. No amount of imaginative warping could assail the facts. The court held that failing to renew the exemption violated the Charter.
Ontario's treatment of vapers is subject to this same criticism. Vaping is an effective harm reduction tool. It is undeniably less dangerous to life and health than smoking. Because it erects needless barriers to vaping that will result in keeping smokers addicted to their extremely harmful habit, Ontario's proposed treatment of e-cigarettes should be abandoned completely.
Derek James From is a staff lawyer with the Canadian Constitution Foundation in Calgary.
