Andrew Raven
Northern News Services

Yellowknife (Mar 12/04) - Yellowknife's controversial smoking bylaw withstood a court challenge Wednesday from two men who argued it was discriminatory and overly restrictive.

Bylaw officers Daryle Foster and Dana Jones ticket Lyle Denny and John Nault on Oct. 20 for lighting up in the Black Knight. - NNSL file photo

Lyle Denney and John Nault were each fined $100 for smoking in the Black Knight bar after a judge rejected their claims the bylaw violated territorial legislation and the Charter of Rights and Freedoms.

"The bylaw is an excellent example of good governing and the city has acted in the public interest," said territorial court Judge Brian Bruser.

"(There has been) no infringement or denial of any freedoms."

Denny and Nault did not contest the fact that they were caught smoking in the bar last October. Instead, they disputed the city's right to implement the bylaw, which prohibits smoking in public places.

"Unfortunately, it seems like you just can't beat city hall," said Denny following the decision.

Bring issue to court

"We wanted to bring this issue before the courts and even though the judge didn't agree with our points, we did everything we could."

Denny and Nault were originally ticketed by municipal enforcement officers on Oct. 20 after they lit up in the Black Knight to protest the city's newly-minted smoking bylaw.

Representing themselves, Denny and Nault challenged the ticket first in front of a justice of the peace and then in territorial court.

Denny, who is a part-owner of Jose Locos, estimates he spent nearly 500 hours researching legal precedents, territorial legislation and court procedures since the charges were first laid.

"It was more than a part-time job," he said.

In territorial court Wednesday, Denny -- who faced off against two trial lawyers representing the city of Yellowknife -- argued council overstepped its authority in passing the bylaw.

Over several hours, he explained how he felt the legislation violated several sections of the Charter of Rights and Freedoms, including the provisions that guard against cruel and unusual treatment and discrimination on the basis of disability.

"It's unfair that smokers should have to go outside when it's -40C. That's cruel and unusual punishment," he said outside of court.

Arguments rejected

Denny also claimed the bylaw restricted the rights of smokers to express themselves freely and denied them the right to peaceful assembly -- arguments that were rejected by Bruser.

"Smoking is not a form of expression. It's an addiction and a pathetic one at that," he said.

Denny also argued the city doesn't have the authority to designate bars as public places because access to those establishments is restricted.

But Bruser disagreed, saying that because bars rely on public patronage to stay afloat, they are indeed public places.

Following the six-hour plus hearing, Bruser congratulated Denny and Nault on their arguments, despite the fact that he rejected each of their points.

Challenged bylaw

He also mentioned the two could have challenged the bylaw by filing a motion in Supreme Court, instead of baiting municipal enforcement officers into giving them a ticket and contesting it in territorial court.

"I didn't know that at the time," Denny said later.

Denny and Nault have 30 days to appeal Bruser's decision to the Supreme Court but both said that would be unlikely.

"We're not considering that now," Nault said.

"We wanted to have our day in court and we had it," Denny said.

"The decision didn't go the way we wanted it to, obviously, but we're not looking to waste the court's time."