Last updated: December 6, 2021
Second Hand Smoke (or similar term)
Although this term is not defined, a definition is not strictly necessary because the term is not used in the law or regulations. The law’s smoke free measures provide that “premises are smoke free,” rather than prohibiting “second hand smoke.” Therefore, a definition of “second hand smoke” is not necessary for interpretation of the law.
The smoke emitted from the burning end of a cigarette or from other tobacco products usually in combination with the smoke exhaled by the smoker. (FCTC Art. 8 Guidelines para. 15)
Smoking or Smoke
(a) “[S]moking” refers to smoking tobacco or anything which contains tobacco, or smoking any other substance, and
(b) smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.
The definition of “smoking” aligns with the definition provided in the FCTC Art. 8 Guidelines and its scope is more comprehensive than the FCTC Art. 8 Guidelines’ definition because it includes any lit substance that can be smoked, even if it is not derived from tobacco.
Being in possession or control of a lit tobacco product regardless of whether the smoke is being actively inhaled or exhaled. (FCTC Art. 8 Guidelines para. 17)
Premises open to the public: premises are open to the public if the public or a section of the public has access to them, whether by invitation or not, and whether on payment or not.
The definition of “premises open to the public” aligns with the definition of “public place” provided in the FCTC Art. 8 Guidelines.
An area, permanent or temporary, that is accessible to the general public or for collective use by the general public regardless of ownership or right of access. (FCTC Art. 8 Guidelines para. 18)
Place of work (Section 2(2)): premises are used as a place of work -
(a) if they are used by more than one person (even if the persons who work there do so at different times, or only intermittently), or
(b) where members of the public might attend for the purpose of seeking or receiving goods or services from the person or persons working there (even if members of the public are not always present).
Work (Section 2(8)): includes voluntary work.
Although “workplace” is not defined in the definition section, Section 2 of the Act substantively covers what is considered a workplace. These substantive provisions align with the FCTC Art. 8 Guidelines definition of “workplace,” but they could be clarified by explicitly stating that common areas frequented during the course of employment constitute part of the workplace.
An area, permanent or temporary, in which a person performs duties of employment or work, regardless of whether the work is done for compensation or on a voluntary basis, and includes private offices, common areas and any other area which generally is used or frequented during the course of employment or work. (FCTC Art. 8 Guidelines para. 20)
Vehicle: vehicle means every type of vehicle, including train, vessel, aircraft and hovercraft.
The law provides a definition of “vehicle” rather than “public transportation.” Substantive provisions provide that a vehicle is smoke free if it is used for transport of members of the public. Together, the provisions align with the intent of the definition of “public transportation” provided in the FCTC Art. 8 Guidelines.
Any vehicle used for the carriage of members of the public, usually for reward or commercial gain. (FCTC Art. 8 Guidelines para. 22)
Indoor or Enclosed
Enclosed premises: premises are enclosed if they have a ceiling or roof and except for doors, windows and passageways, they are wholly enclosed either permanently or temporarily.
Substantially enclosed premises: Premises are substantially enclosed if they have a ceiling or roof and any opening in the walls is less than half of the area of the walls, including other structures that serve the purpose of walls.
Regulations provide a definition of “enclosed premises” and “substantially enclosed premises.” The smoking prohibition applies equally to both types of premises. Together, the definitions of “enclosed” and “substantially enclosed” provide less protection than intended by the Art. 8 Guidelines because they allow smoking in areas that are 50% enclosed, whereas the FCTC Art. 8 Guidelines call for a prohibition on smoking in areas with one or more walls and a roof.
To fully align with the FCTC Art. 8 Guidelines, a definition of “indoor” or “enclosed” should be provided in accordance with the definition provided in the FCTC Art. 8 Guidelines.
Any space covered by a roof or enclosed by one or more walls or sides, regardless of the type of material used for the roof, walls or sides, and regardless of whether the structure is permanent or temporary. (FCTC Art. 8 Guidelines para. 19)
Technically, a definition of “tobacco products” is not necessary because the law does not prohibit smoking “tobacco products,” but rather prohibits “smoking tobacco or anything which contains tobacco, or smoking any other substance.”
Any product entirely or partly made of the leaf tobacco as a raw material which is manufactured to be used for smoking, sucking, chewing, or snuffing. (FCTC Art. 1(f))
Private dwelling: includes self-contained residential accommodation for temporary or holiday use and any garage, outhouse or other structure for the exclusive use of persons living in the dwelling.
The definition of “private dwelling” is significant because the law places some restrictions on smoking in private dwellings, e.g., in common areas with other private dwellings and in private dwellings used solely as a workplace.