Two hookah bars challenged a law that prohibits smoking or burning substances in commercial establishments. The court found that the law applied to the hookah bars because warming of herbal shisha was considered “burning”. The court rejected arguments that the smoking law was overly broad and that it violated the Canadian Charter of Rights and Freedom, finding no connection between smoking hookahs and religion.
Vancouver (City) v. Abdiannia, 2015 BCSC 1058 (CanLII).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
A single or multi-stemmed instrument for vaporizing and smoking flavored tobacco (shisha or sheesha) or other products in which the vapor or smoke is passed through a water basin ‒ often glass-based ‒ before inhalation. Water pipes are known by a variety of names such as hookah, huqqah, nargilah, nargile, arghila, and qalyan.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"In my view, the respondent City, on appeal, has provided a complete, and satisfactory, answer to this whole argument: "… even if this Court concludes that the trial judge erred by finding that the herbal shisha is burned in a hookah pipe, it is inescapable that the mere burning of the charcoal in the hookah pipe is enough to result in a finding that ‘any other substance’ is ‘burned’, the smoke of which is inhaled within the meaning of the by-law. The evidence on this point is not in dispute."
"The Respondent submitted that the trial judge made no error of law in finding that the definition of “smoking” and the related provisions in the By-law are not uncertain or vague. …. The meaning and applicability of these provisions is ascertainable when they are taken in context with the whole of the enactment and interpreted according to law. When done so, the provisions are clear as to what conduct is prohibited and what is not. The trial judge agreed with the submissions of the Respondent that the only reasonable interpretation of the definition of smoking is that smoking means the act of smoking, being to inhale and exhale the smoke of any substance by means of a lit cigarette, pipe, hookah, or other lighted smoking equipment, and includes the carrying of any such lit smoking equipment meant or designed for that purpose. By preceding the term “smoking equipment” with “cigarette, cigar, pipe, hookah pipe, or other”, City Council clearly intended that any other “smoking equipment” share the characteristics of all of those items: they all are capable of producing smoke by the burning of tobacco, weed, or other substance, they all facilitate the inhalation of said smoke by the placing of the item to the lips, and they are all designed and used for that purpose. In reaching his conclusion the trial judge referred to United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19 (CanLII), [2004] 1 S.C.R. 485 and Okanagan Land Development Corp. v. Vernon (City), [2012] B.C.J. 1651 (C.A.). I am satisfied he made no error in his analysis of the Bylaw and I agree with his conclusion."
"... I am satisfied that the trial judge reached a conclusion that was open to him on the evidence: The evidence of the Defendants and the patrons fall short of establishing that they sincerely believe that hookah smoking is a practice which has a nexus with their religion as the term has been defined by the Supreme Court of Canada in the case of Syndicate Northcrest v. Amselem, para. 92(a)."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
Two hookah bars challenged a law that prohibits smoking or burning substances in commercial establishments. The court found that the law applied to the hookah bars because warming of herbal shisha was considered “burning”. The court rejected arguments that the smoking law was overly broad and that it violated the Canadian Charter of Rights and Freedom, finding no connection between smoking hookahs and religion.