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Wrong, and wrong

By David Seymour
web posted January 17, 2011 

Banning smoking on private properties but allowing it in public spaces is wrong on two counts: it's inefficient at reducing the harms of smoking and it's offensive to the principles of a free society.  To see how wrong it is, consider Japan and in particular some precincts of Tokyo, where the law is the reverse of ours.

To the extent that the Japanese have a reputation for smoking, tourists visiting some of Tokyo's trendier districts are in for a surprise.  Nobody smokes on some streets, where it is banned by local governments.  Visit a bar, restaurant, or even hotel conference centre though, and the Japanese hold up their reputation well.  Their approach highlights the absurdity of our current laws; we have it back-to-front.

Public streets are just that, public.  They are areas commonly owned for the use of everybody.  It seems absurd, after even a moment's thought, that a country as devoted to reducing smoking harm as Canada will let a mother with a baby in a pram (at hand-height) walk through a cloud of cigarette smoke on a public thoroughfare.  Before it even considers doing anything else, it is the role of government to protect citizens from physical harm by others. At this, our current laws fail.

For some, the obvious answer is to ban smoking on public streets.  However, consider the following arguments for imitating the Japanese and leaving smoking on private property, including bars and restaurants, to the decision of the property owner again.

The first relates to efficiency.  If we assume there will continue to be smoking somewhere, and the ultimate test of a free society is its tolerance of all decisions both good and bad, it will be less harmful if done on private property.  Apart from the fact that people can more easily choose to avoid private places than public ones, the owners of private places directly harvest all of the benefits of maintenance and improvements made.  It is more likely that private property owner will maintain and improve the property to reduce smoking harm. 

Tokyo does not have cigarette butts littering its streets. Inside places that allow smoking often have sophisticated ventilation systems, which make smoking difficult even to detect by smell.  Meanwhile many establishments have decided it is in their commercial interest to be entirely smoke free.  On private property, there are simply better incentives to manage smoking harm than in public places.

The second argument for putting the decision to allow or forbid smoking back in the hands of the property owner is more abstract but ultimately more important.

The whole point of private property is that people can use it in their own way.  It allows people to bear the risks and rewards of their decisions without affecting others.  Without this tradition of continual experimentation, Canada would not be the prosperous country it is today. 

Smoking regulations are not a practical end to private property in Canada, but they are an affront to its principle.  Over the past two decades most western industrialised countries have banned smoking in more and more places, with bars being the last places effected.  The debates leading up to these final decisions were almost universally conducted on the premise that bars are public places and their patrons have a right not to inhale second hand smoke.

Both of these assumptions are untrue.

A typical bar is very obviously a private place, owned and operated by a private individual or a company of them. 

As for having a "right" not to inhale others' cigarette smoke, that much is reasonable (and makes the case for banning smoking on public streets).However it is illogical to say that anybody has a right to enjoy somebody else's property in a particular way of their own choosing, including smoke free.  If people have a "right" to enjoy smoke free bars, then who assumes the duty of providing them?

The current laws, by allowing smoking in genuinely public places, are failing to protect Canadians from the actions of others.  What is worse, the emasculation of property owners as decision makers about smoking on their own premises is an erosion of Canada's tradition of property rights.   Smoking may be dangerous, but eroding the principles of a free society is immeasurably more so, and right now we've got the worst of both worlds.  We should reverse the current laws to mimic the Japanese model. ESR

David Seymour is a senior policy analyst at the Frontier Centre.

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