Assemblée législative de l'Ontario

TOBACCO CONTROL ACT, 1993 / LOI DE 1993 SUR LA RÉGLEMENTATION DE L'USAGE DU TABAC

CONTENTS

Monday 7 March 1994

Tobacco Control Act, 1993, Bill 119, Mrs Grier / Loi de 1993 sur la réglementation de l'usage du tabac, projet de loi 119, M^me Grier

STANDING COMMITTEE ON SOCIAL DEVELOPMENT

Chair / Président: Beer, Charles (York-Mackenzie L)

*Vice-Chair / Vice-Président: Eddy, Ron (Brant-Haldimand L)

*Carter, Jenny (Peterborough ND)

Cunningham, Dianne (London North/-Nord PC)

Hope, Randy R. (Chatham-Kent ND)

Martin, Tony (Sault Ste Marie ND)

*McGuinty, Dalton (Ottawa South/-Sud L)

*O'Connor, Larry (Durham-York ND)

*O'Neill, Yvonne (Ottawa-Rideau L)

Owens, Stephen (Scarborough Centre ND)

*Rizzo, Tony (Oakwood ND)

*Wilson, Jim (Simcoe West/-Ouest PC)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Abel, Donald (Wentworth North/-Nord ND) for Mr Martin

Caplan, Elinor (Oriole L) for Mr Beer

Haslam, Karen (Perth ND) for Mr Hope

Frankford, Robert (Scarborough East/-Est ND) for Mr Owens

Sterling, Norman W. (Carleton PC) for Mrs Cunningham

Also taking part / Autres participants et participantes:

Ministry of Health:

Mitchell, Brenda, manager, tobacco strategy unit

O'Connor, Larry, parliamentary assistant to the minister

Williams, Frank, legal counsel

Clerk / Greffier: Arnott, Doug

Staff / Personnel: Filion, Sibylle, legislative counsel

The committee met at 1320 in room 151.

TOBACCO CONTROL ACT, 1993 / LOI DE 1993 SUR LA RÉGLEMENTATION DE L'USAGE DU TABAC

Consideration of Bill 119, An Act to prevent the Provision of Tobacco to Young Persons and to Regulate its Sale and Use by Others / Projet de loi 119, Loi visant à empêcher la fourniture de tabac aux jeunes et à en réglementer la vente et l'usage par les autres.

The Vice-Chair (Mr Ron Eddy): The work of the committee is to commence clause-by-clause consideration of Bill 119.

Are there any amendments, questions or comments regarding section 1? If not, shall section 1 carry?

Mr Jim Wilson (Simcoe West): Just one moment, Mr Chair. We'd like to actually take our seats.

Mr Norman W. Sterling (Carleton): I have a copy of the government's amendments. I don't have a copy of any Liberal amendments.

Mrs Elinor Caplan (Oriole): They're in the package.

Mr Larry O'Connor (Durham-York): They're sitting in front of you.

Mr Sterling: Okay. I want to give you a copy of our amendments at this stage of the game.

The Vice-Chair: Do we have copies for all members?

Mr O'Connor: Oh, there are Conservative amendments.

The Vice-Chair: What's the first amendment? Section 4. What is your wish, committee members? The PC amendments to the bill have been submitted but we don't have copies. The first amendment I believe is section 4. Do you wish to proceed to section 4?

Mrs Caplan: Yes. We could proceed until we get there, and by then we should have the amendments.

The Vice-Chair: Agreed? Thank you.

Section 1: Are there any amendments, questions or comments regarding section 1 at this time? If not, shall section 1 carry? Carried.

Section 2: Any questions? Shall section 2 carry? Carried.

Section 3: There is a government motion regarding section 3.

Mr O'Connor: I move that section 3 of the bill be struck out and that the following be substituted:

"Selling or supplying to persons under nineteen

"3(1) No person shall sell or supply tobacco to a person who is less than nineteen years old.

"Selling or supplying to persons apparently under nineteen

"(2) No person shall sell or supply tobacco to a person who appears to be less than nineteen years old, regardless of the person's actual age.

"Defence

"(3) It is a defence to a charge under subsection (1) or (2) that the defendant believed the person receiving the tobacco to be at least nineteen years old because the person produced a prescribed form of identification showing his or her age and there was no apparent reason to doubt the authenticity of the document or that it was issued to the person producing it.

"Same

"(4) It is a defence to a charge under subsection (2) that the person selling or supplying the tobacco had personal knowledge that the person receiving the tobacco was at least nineteen years old.

"Apparent age

"(5) In a prosecution under subsection (1) or (2), the court may determine, from the person's appearance and from other relevant circumstances, whether a person who received tobacco appears to be less than nineteen years old.

"Improper documentation

"(6) No person shall present as evidence of his or her age identification that was not lawfully issued to him or her."

Mr Dalton McGuinty (Ottawa South): Regarding subsection 3(6), is there a penalty provision accompanying this as well? I gather it's saying that if you're under 19 and you --

Mr O'Connor: At this point, no, there isn't.

Mr McGuinty: There is no penalty provision for subsection 3(6)?

Mr O'Connor: For the person producing the identification or the person --

Mr McGuinty: The person producing it. Yes, so if you're fraudulent; you're putting forward identification which isn't true: I'm 16 and I show you something that says I'm 20. This covers that, I assume, right?

Ms Brenda Mitchell: Yes.

Mr McGuinty: That's what we're talking about here?

Ms Mitchell: Yes.

Mr McGuinty: Is there a penalty for doing that?

Ms Mitchell: I'll ask legal counsel.

Mr O'Connor: If you refer to our table -- there's an amendment to the table -- you'll note that this section is referred to in the table in the first large box that has a whole pile of sections that are referred to. That's where that kicks in.

Ms Mitchell: It would be under column one for the provision contravened. It now refers to subsection 3(6), and the penalties would be similar to other penalties in that section for offences under that section.

Mrs Yvonne O'Neill (Ottawa-Rideau): Excuse me, what are you talking about -- table?

Mr O'Connor: That's in the bill currently, page 8 of our bill, but there is actually an amendment that will change that.

Mrs O'Neill: "Provisions contravened"? Is that it -- table, number of earlier convictions?

Mr O'Connor: That's the one, yes. You'll note the section that Mr McGuinty has asked the question about, subsection 3(6), shows up in that very first box.

Mrs O'Neill: I see. So those are the fines.

Mr O'Connor: Yes.

Mr McGuinty: The purpose of this, just so I'm clear again, is to penalize young persons who are attempting to misrepresent their age through false documentation. Is that right?

Ms Mitchell: Yes.

Mr McGuinty: Is that what we're after here?

Mr O'Connor: No.

Mr Jim Wilson: Well, why?

The Vice-Chair: Is there a response to that question?

Mr Jim Wilson: Perhaps it could be better put to give leeway to legislative counsel or the parliamentary assistant to simply explain subsection 3(6).

The Vice-Chair: Thank you for your suggestion. Legal counsel will respond.

Mr Frank Williams: I'm sorry, do you want to start back with your question again, because I missed part of it back in the corner. I assume you want to know if there was an offence for somebody --

Mr McGuinty: First of all, is there an offence created? It says here you can't do this; you shall not do it. Is there a sanction that's involved?

Mr Williams: Subsection 14(1) creates the offence and the corresponding section in the table, that's correct.

Mr McGuinty: And there are fines associated with that, fine.

Mr Williams: To the extent that, under the Provincial Offences Act, a young person could be fined. It would have to be somebody 13 years of age and older, which is consistent with what's in the Liquor Licence Act now on identification.

Mr McGuinty: If that's the intention, I just want to say I wholeheartedly endorse it.

Mr Jim Wilson: I appreciate the amendment, but I would like a bit of a layman's explanation as to why this section has now taken this form, and in particular the dropping of clauses 3(3)(a) and (b) in the original Bill 119 and their replacement by subsection 3(5). Could we just have legislative counsel explain the new approach, or perhaps the parliamentary assistant?

Mr O'Connor: The rationale for the changes here is it will make it more consistent with the Liquor Licence Act. Of course, some of this was also supported by people through the hearings; for example, the Canadian Cancer Society and Ontario Campaign for Action on Tobacco, the London home and school association, so parts of this were supported by people who came before the committee. In fact, it makes it consistent with what we heard from people as well as makes it fall together with the Liquor Licence Act better.

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Mr Jim Wilson: So this very much mirrors it. Is it identical to the identification provisions in the Liquor Licence Act?

Mr O'Connor: Pretty much so.

Mrs O'Neill: The form of identification they're suggesting is going to be similar to the ID regarding 19 for drinking. Some people have suggested photo ID. Is this going to be a special ID card then, or what kind of ID is going to be accepted as accurate documentation?

Mr O'Connor: Right now there's the age-of-majority card, which I think would be the most appropriate. That's why we've moved it to the age of 19; it makes it that much easier. Students will have that piece of identification there, as well as a driver's licence.

Mrs O'Neill: Will the notes to the bill contain then what "prescribed form of identification" means? If you have something already in mind -- but certainly "prescribed form of identification" doesn't indicate whether you're going to have a new form of identification in regulations or whether you're going to accept the age-of-majority card, which is generally known -- or a birth certificate for that matter.

Mr O'Connor: For further clarification, I'd ask Brenda Mitchell to help us here.

Ms Mitchell: The intent is that the prescribed forms of identification would be specified under regulation and would be consistent with the Liquor Licence Act. At this time I believe there are five forms of identification allowed under that act; all of those are photo identification. But it could be that the specific mechanisms that there are in Ontario for photo ID may change over time and we'd like to be able to change it to be consistent with that. One of the forms is the age-of-majority card. There are also forms such as passports, which also require photo ID.

The Vice-Chair: Any further questions or comments? If not, all those in favour of the government amendment to section 3, please indicate. Opposed? Carried.

Shall section 3, as amended, carry? Carried.

Section 4, a government motion.

Mr O'Connor: I move that paragraphs 3, 8, 9 and 10 of subsection 4(2) of the bill be struck out and the following substituted:

"3. A psychiatric facility as defined in the Mental Health Act, except, in the case of a facility that is designated under the Mental Hospitals Act, a part of the facility where the sale of tobacco is authorized by the regulations.

"8. A pharmacy as defined in the Drug and Pharmacies Regulation Act.

"9. An establishment where goods or services are sold or offered for sale to the public, if,

"i. a pharmacy as defined in the Drug and Pharmacies Regulation Act is located within the establishment, or

"ii. customers of such a pharmacy can pass into the establishment directly or by the use of a corridor or area used exclusively to connect the pharmacy with the establishment.

"10. A place that belongs to a prescribed class."

Mr Jim Wilson: Just to go through and comment on the amendment, I think with respect to paragraph 3, a psychiatric facility, I can certainly have some agreement there. I assume the intent is to designate a smoking area for the -- sorry, not a smoking area, a place where cigarettes can be sold in those facilities as defined in the Mental Health Act.

Mr O'Connor: That's correct. It's under the Mental Hospitals Act and it's consistent with what we heard from people making presentations.

Mr Jim Wilson: I appreciate that with paragraph 8 you're trying to clear up the definition of "pharmacy" which was requested by a number of presenters. I remain opposed to the ban with respect to the sale of tobacco products in pharmacies. I think Mr Sterling, my colleague, disagrees with me on that, and you'll some interesting voting patterns this afternoon, no doubt.

Why the change with paragraph 9? Are you just adding the definition of "pharmacy" as under the act?

Mr O'Connor: Yes.

Mr Jim Wilson: So there's no other effect.

Mr O'Connor: No, it's to clarify it, and it's consistent with what we heard through the hearings.

Mrs O'Neill: I guess my question is similar to Mr Wilson's: "is located within the establishment," and again, that still begs a definition in my mind in these very large retail establishments, "within" then means within a two- or three-storey building.

Mr O'Connor: That's correct.

Mrs O'Neill: Even though there are escalators and all of these other things that could be determined to be part of 9(ii), this is a very, very broad definition of the word "pharmacy" -- very broad.

Mrs Caplan: That's what I was going to ask. I very much support the prohibition on the sale of cigarettes and tobacco products by health professionals, and most specifically by pharmacists. I'm wondering whether or not this new definition would capture all pharmacies or pharmacies within larger stores where drugs were dispensed by a health professional, namely a pharmacist.

Mr O'Connor: To help clarify for yourself and for others, the intention is so that the pharmacy, whether the pharmacy be within that area, that the area selling tobacco products, if the store wishes to remain a pharmacy, then that tobacco would either have to be removed or they would decide the other and not be a pharmacy any longer. I think it's pretty clear that the definition is to make sure there is no difference between the pharmacy, whether it be part of a large chain that's included in a department of a department store, a pharmacy is going to be a pharmacy.

Mrs Caplan: The amendment that you've brought forward today would cover any drug dispensary no matter where it was located? That's the intent.

Mr O'Connor: Yes.

Mrs Caplan: That's fine. What it will do is relegate the sale of tobacco and tobacco products to tobacco stores, smoke shops, variety stores, that sort of thing.

Mr O'Connor: Yes.

Mr Sterling: Can I just ask a question on 3, your amendment to it? Why do you need to regulate this? Why don't we just take them right out? What's the purpose of putting it this way?

Mr O'Connor: As we went through the hearing process, we had --

Mr Sterling: I know the reason that we want to cut them out, but why don't we just take 3 right out of the act and say a psychiatric facility, as defined in the Mental Health Act, is not covered? Why do we have to regulate this? We're going to take it out and then we're going to regulate it and say, "You can sell cigarettes in that corner of the hospital." Don't we trust these people to do whatever's right?

Mr O'Connor: The key here, as we heard through the hearings, was that it's the patients who are so addicted that they have the opportunity to purchase, not for the staff, so it's not a regular retail outlet. It would be only geared for them. At the same time, there is a need for regulation of smoking in a psychiatric facility as defined under the Mental Hospitals Act.

Mr Sterling: No, but this has to do with the sale of cigarettes; it doesn't have anything to do with who can smoke where. This section deals with where you can sell cigarettes or where you cannot.

Mr O'Connor: The key here, again, is that it's the patients who have the access to that and so it's not going to be a retail outlet that is open for employees. It's for the residents therein. That was something that was spelled out quite clearly. The key here is that it will allow us to allow for this exemption that will recognize the very serious situation as presented to us through these hearings and, at the same time, keep it consistent with the health facilities that will not be allowed to sell tobacco.

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So what we've done here is take a look at the need of the consumer, the person who is in the mental health facility, the mental hospital, and deal with them as separately as we possibly can, because it's not for the employees' benefit.

Mr Sterling: So rather than be practical and just take them out of the act, what we want to do is maintain this façade of a philosophy in a psychiatric hospital to prevent a few members of the staff going to the tuck shop and buying a pack of cigarettes. Is that what you're telling me, Mr O'Connor?

Mr O'Connor: We're responding to something that was a very real issue presented to us by people who are advocates for the people who are in these psychiatric facilities. These people who came before the committee didn't make any sort of wish that they wanted to make it easier for the employees to be able to buy cigarettes in this type of hospital setting, this health care facility setting. The key here is that there are some people who are staying in these places who are quite vulnerable and susceptible to many different abuses, and part of the --

Mr Sterling: No one is disagreeing with you on that issue, Mr O'Connor. What I'm disagreeing with you on is this government's wont to create more ways to make regulations, which is absolutely ridiculous. Why do we have to create regulations as to who can buy cigarettes out of a tuck shop in a psychiatric hospital if in fact the cigarettes are there and they're there primarily because the people are incarcerated in the mental hospital and can't get outside to buy them? Everybody agrees with that. No one disagrees with you there.

My argument is, why are we creating more regulations in law when the practicality of those regulations and the intent to keep within the philosophy of this wonderful --

Mr O'Connor: Consistency.

Mr Sterling: -- philosophy is so minute in comparison to the whole idea of setting this up? Who's going to watch the person who sells the cigarettes, whether they're selling to them to a patient or whether they're selling them to a person on staff? These kinds of laws beg people to break them.

Mr O'Connor: I think again there is consistency here that we're trying to keep the sale --

Mr Sterling: Yes, there's consistency that you like to make lots of regulations.

The Vice-Chair: Please allow the response.

Mr Sterling: Yes. Sorry.

Mr O'Connor: Here it's the sale to those individuals. People came to this committee and we heard those suggestions. They weren't suggestions that there should be a public tuck shop that would be operated in some health facilities and not others.

Mr McGuinty: I'm very concerned, and we have an amendment we'll be dealing with shortly which would exempt psychiatric facilities entirely from the ambit of Bill 119. I think the good news is that the government has recognized that it's important that people who are confined to corridors, so to speak, or hospital grounds or a psychiatric facility be able to have access to cigarettes. They are there for much longer than the usual three- or four-day stay in a hospital. They can be there for months and months on end, and if they are addicted to cigarettes, that is not the appropriate setting for people who are having extreme difficulties of a psychiatric nature to begin to force them to withdraw from that addiction.

I spoke with Marilyn Smith, someone who came before us -- she was with the Mental Health Rights Coalition -- and I passed the government amendment by her. She tells me that, to her knowledge, first of all, there are no vending machines in psychiatric facilities, in the 10 institutions in the province, so that's not a concern.

But these do have tuck shops, and what she would like is that you don't change the existing system. It's working well. Let's remember what the intention of the bill here is. It's to make it harder in particular for young people to get access to cigarettes. Here we're talking about a lawful sales operation operating on the grounds of a mental hospital, and I just don't see the need.

Keeping in mind the intention of the bill, I don't see the need to impose this kind of regulatory scheme where now we're going to have to create some rules and regulations regarding how these things are going to be sold, and if you're a staff member: "Who's that for? Is that for you or is that for a patient? Well, if it's for you, you can't have it." Somebody else comes up: "Do you work here? No, I can't sell you cigarettes."

Those are the kinds of questions that somebody who's going to be selling these things is going to have to get into and I just don't think we need it.

Mr O'Connor: In an ability to keep consistent, "health facilities" is one area that has been stated. One of the people you referred to, Ms Smith, who came before the committee, also suggested that she wasn't too sure as to whether it should be the tuck shop or the canteen. Her concern, when she came to this committee, was for the person who is a resident in this type of facility.

I can see why you have some concern there and that's why I think there needs to be the ability for this regulation, so that we can take a look at whether or not it's going to then comply with the intent. The intent is that these people are vulnerable and that we don't need to make their lives more vulnerable. I think this will enable us to do that.

Mrs Karen Haslam (Perth): When this group came before the committee, its main concern was for the patients. They indicated that they had a canteen for patients only, and that's what they were suggesting, was to have those cigarettes available for the patients in that spot that was for patients only.

My concern would be that when you exempt this facility, we would then have another facility come in and say, "Everyone in our place has a broken leg and can't walk down." I see it as a growing number of health facilities asking for exemptions. I don't think the presentation from this group was to say, "Exempt this facility." That wasn't what they were talking about. They were talking about a particular place where patients could go for the patients to purchase the cigarettes. That's why I would hate to see us go just with the total exemption of this health facility.

I can understand that the government's trying to accommodate the group that came before us with a specific concern, but I would hate to go so far the other way for that specific concern and say that we exempt the total facility.

Mr Jim Wilson: It reminds me of the Sunday shopping debate when we were starting into size of stores and that fiasco, which eventually caved in on the government. Perhaps we could hear from the parliamentary assistant what exactly the regulation is going to be. I'll even take what vaguely the regulation's going to be, because I think Mr Sterling makes a very good point. You have an exemption, for example, for psychiatric facilities, yet what makes someone in a nursing home less vulnerable than somebody in psychiatric home or, go to section 5, someone who's in a home for special care or, 6, somebody who's in a charitable institution or, 7, someone who's in a home for the aged or a rest home? They're all equally vulnerable.

Where there are smokers in those facilities, the point, I thought, of amending this section was to ensure that patients had access to cigarettes. We also are told, and I think we all believe, that health professionals help run these institutions, so let's let professionals be professionals and decide where they will place the tuck shop and who will have access to it, and the government could simply make its intentions known, and that is that it wants the sale of cigarettes restricted to patients where possible in these facilities. Otherwise, I hope you'll give us the regulation and then we can judge, as legislators, whether or not you're just getting into a quagmire.

Mr O'Connor: The key here is what we heard through the committee hearing process. We heard about some pretty terrible situations taking place in these type of facilities and cigarettes being used as a bartering system. If we were to restrict access to some of these patients we could put them at very severe risk, and that's the key here. I believe Mr Sterling even said that he felt it was important that we didn't place anybody more at risk going through these hearings.

Mr Sterling: But we have heard the same arguments. Quite frankly, when we go through this, I'm not going to vote for any of the sections, save 1, 2 and 8. When you're dealing with a psychiatric facility, a nursing home, a home for special care, a Charitable Institutions Act home, a home for the aged or a rest home, basically what you're talking about are people who can't get out easily to the marketplace.

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We heard from somebody in one of the homes for the aged and rest homes who said, "I have to pay twice as much for a tobacco product because I live in this place." Is it the intent of the government to burden these people with paying twice as much for cigarettes as somebody who would be able to walk down to the corner store? Is that your intent, to double the cost for these people?

Their argument, I'll grant you, isn't as significant as somebody who's basically incarcerated in a mental hospital, but notwithstanding that, their incarceration is because of a disability; they can't walk. You're going to penalize somebody who can't walk, is in a wheelchair and can't go down to the corner store? That's what you're saying here, "Why can't they go down to their little local tuck shop and buy their tobacco if they need it and smoke it in the area that is provided for them to smoke?"

I can't vote for any of those sections because basically what you're saying to disabled people is, "We're going to disfranchise you." That's what you're saying by having 3, 4, 5, 6 and 7 in this act.

Mr O'Connor: There is some consistency here when what we heard from the advocates coming here for the psychiatric patients was that they are in a very special situation. They are more vulnerable than somebody being abused in any number of long-term care facilities that you put up with. I don't believe that this type of abuse we've heard about should be tolerated. I hope it isn't, and I hope that something can be done about it, but it's a different situation. It wasn't something that we heard in these committee hearings.

Mr Sterling: We did. Read the Hansard for the last day.

Mr O'Connor: I appreciate it. I guess what we've got here is a difference of opinion.

Mr Jim Wilson: I think what Mr Sterling is pointing out is its absolute inconsistency. He's made a very good commonsense case there with respect to, yes, we had a number of advocates for psychiatric patients and facilities come to this committee, but that doesn't mean you put blinders on to what else is in this particular section, and that is, I think that wheelchair-bound residents of nursing homes are just as vulnerable as people who are confined to a psychiatric facility. I fail to see the logic of the government's approach on this.

I will go, of course, farther than Mr Sterling. I'll be voting against section 8, because I don't believe you should be picking on one part of the retail sector with respect to pharmacies, section 9, and I want an explanation also of section 10, which I asked for many times in the hearings. What's in the future? I do not like giving governments carte blanche with respect to a prescribed place or -- what's the new wording? -- a prescribed class. That means that you can not only, through this legislation, ban the sale of cigarettes in a number of places as listed, but then once this act is passed you can go and ban it wherever the heck you want. We're giving you absolutely sweeping authority here, and I want to know what you intend to do with section 10 when you're asking for such wide-ranging prescribing powers.

The Vice-Chair: Mr Wilson, those sections are not before us at this time.

Mr Jim Wilson: It's right before us, section 10. Read the amendment. Sorry, it's paragraph 4(2)10. So it is before us, and I want an answer to my question.

Mr O'Connor: In response to that, at this point there is nothing up our sleeve. What we have to do, though, is not tie the hands of future governments as they move towards an area and as society changes that are going to say we need to be more restrictive in the future. At this point, there is nothing before this government, and we just want to have that ability in there for regulations in the future that will be consistent with the way society is moving.

Mr Jim Wilson: The point is that you don't have to go back to Parliament then; you don't have to go back to the Legislature to ban the sale of tobacco products in more stores that you may think up in the future. I think that's wrong. I think it's a serious societal issue and society has the right to have its parliamentarians speak on further bans.

The Vice-Chair: Do you wish to respond?

Mr O'Connor: I've responded, thank you.

Mr McGuinty: I want to go back to the issue of the psychiatric facility designated under the Mental Hospitals Act. I want to get the government's intention on this. Are we trying to prevent a certain group of people from gaining access to cigarettes by regulating how they can be sold or where they can be sold?

Mr O'Connor: At this point, what we're doing is allowing for an amendment here that will point out the exception, which is those vulnerable individuals as pointed out to us through the committee hearings. Maybe you could clarify your question just a little bit more.

Mr McGuinty: What is it we're trying to do? You're going to regulate now where tobacco can be sold on hospital grounds, I assume, within the complex. What's the purpose behind that? We've agreed that the patients have to be able to buy cigarettes on the property.

Mr O'Connor: For some individuals in that type of setting, they don't have the liberty to come and go as in some other cases. This is part of what we've heard through this process, that individuals who are incarcerated and don't have the access to come and go be allowed the privilege of continuing to purchase.

Mr McGuinty: So if you're confined to the hospital, you'll be able to buy cigarettes there, but if you can leave the premises, then you'll have to buy them elsewhere, even though there's a shop right on the grounds. Is that right?

Mr O'Connor: Not quite. At this point, I don't think there's a differentiation under the designation of the Mental Hospitals Act that would differentiate between two different types of patients in the same facility.

Mr McGuinty: Then whom are we trying to stop from buying cigarettes through this provision?

Mr O'Connor: It's those who are vulnerable whom we heard the compelling evidence about.

Mr McGuinty: You're trying to stop them?

Mr O'Connor: To allow them.

Mr McGuinty: But whom are we trying to stop?

Mr O'Connor: The intention here is that they're not public shops for any portion of the public coming in to purchase them. It's to allow those patients who could be placed in a vulnerable situation to have access to tobacco.

Mr McGuinty: I just don't see many people going to Penetanguishene or Brockville or the psychiatric facility in Hamilton to buy their cigarettes.

Mr Jim Wilson: It would be a loss-leader sale, I'm sure.

Mr McGuinty: Let me move on to something else. Mr Wilson asked you what I thought was a direct question and I'd really like an answer so that when I'm talking to these people later today, they'll know what they'll be looking at. What are the regulations going to look like in terms of the location of these shops?

Mr O'Connor: I think that's where we do need to have a little bit more consultation. That's why we need that flexibility to put it into regulations. We're not about to do that without some consultation with some of the people who have presented this concern to us.

Mr McGuinty: My final comment is with respect to the description of a pharmacy. It's extremely far-reaching, obviously. We're talking about a retail operation that could be, as we saw here, in excess of 100,000 square feet. There may be some 30 departments between the location where they're selling cigarettes and the pharmacy. What we are doing here in one fell swoop is categorizing the entire operation as a pharmacy. That's very far-reaching and I think it sets a terrible precedent. At some point down the road, because they're selling some other item in there, we'll say you're into hosiery sales, you're a hosiery operation, because you happen to be selling this stuff here, so we're going to describe the entire operation in that way. To categorize it in that way I think is just not the way to go.

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Mr O'Connor: I appreciate the difference of opinion here. There was a consultation that took place over a year ago when the draft legislation was put out in March 1993. The Ontario College of Pharmacists has been pretty consistent in its recommendations towards this, so I guess here there's a difference of opinion.

Mr Sterling: I hope that when we go through and vote after this particular amendment we will then have the opportunity to, when we go through this, as amended, to vote on each section. I would like each section recorded and an opportunity to debate each section as we go through it as well.

The Vice-Chair: Anyone further? If not, those in favour of government motion to amend subsection 4(2), paragraphs 3, 8, 9 and 10? Opposed? Carried.

Liberal motion to amend paragraph 3 of subsection 4(2).

Mr McGuinty: In fact, it was the very issue we've been discussing and my position is that we should be exempting psychiatric facilities entirely from Bill 119, that those patients who continue to have access to cigarettes in the same way that they have at the present time; that the hospitals continue to limit smoking in those areas that they have presently designated. I think there is no compelling reason here to alter the status quo. That's the long and the short of it.

The Vice-Chair: You're moving the motion, are you, Mr McGuinty?

Mr McGuinty: Yes, I am.

The Vice-Chair: Could you please read the motion.

Mr McGuinty: I move that paragraph 3 of subsection 4(2) of the bill be struck out.

Mr Sterling: We now have a new paragraph 3, which was just carried by the committee. So I assume it's as amended, is it, Mr McGuinty?

Mr McGuinty: No, this makes reference to the original Bill 119.

Mr Sterling: But that one's gone now.

Mr McGuinty: Then maybe we should have dealt with mine first.

Mr Sterling: What are we voting on, Mr Chairman?

The Vice-Chair: Is it agreed, then, that the motion as presented, the Liberal motion to amend paragraph 3 of subsection 4(2), is redundant at this time?

Mrs Haslam: Mr McGuinty did not vote in favour of the amended 3; therefore, this motion stands as it is. His original motion is to not have paragraph 3. He did not vote for an amended 3; therefore, this motion is in order, correct?

The Vice-Chair: Any further discussion on the motion to amend paragraph 3 of subsection 4(2)?

Mr Sterling: Perhaps we will deal with this as we go through the subsection paragraph by paragraph and record votes, and we can make our arguments at that point in time, because we will then be dealing with amended paragraph 3, as introduced by the government and just carried. I do want to indicate that we are against the amended version of this part of the amendment that was just passed by the government. In other words, we'll be voting against that for the reasons previously stated.

The Vice-Chair: Anyone else? All those in favour of Mr McGuinty's motion to amend paragraph 3 of subsection 4(2)? Opposed? The motion is lost.

PC motion to amend section 4 of the bill.

Mr Jim Wilson: The first PC motion that deals with section 4, and it has (a), (b) and (c) and an exception for veterans -- we will not be introducing that, Mr Chairman.

The Vice-Chair: The first one will not be introduced.

Mr Jim Wilson: The next PC motion, I think, comes after the Liberal motion. Mine deals with paragraph 8; the Liberal motion deals with paragraph 7.

The Vice-Chair: The Liberal motion.

Mrs O'Neill: I move that paragraph 7 of subsection 4(2) of the bill be struck out.

The reasons for that amendment were also the result of what I considered very strong witness representation as well as much written representation that I had on this issue.

The homes for the aged and rest homes are homes. Some of the residents require some care but many of them don't. We had very strong evidence of the dangers that some of these individuals, particularly in the city of Toronto, encounter when they have to leave the residence to cross very busy thoroughfares to a variety store or whatever as they try to obtain their cigarettes. Many of them suggested that they don't have many visitors, and I think those of us who have had some recent experience in these institutions -- they're really not institutions; I shouldn't use that word -- homes, find that there aren't a lot of people visiting in these areas.

I feel quite strongly that these people have paid their dues. Many of them have taken up smoking as a result of their service in the military and they were paid in cigarettes. These are long-standing habits. These people are usually in their 80s; the average age is in the 80s, some of them are in their late 70s, and they came before us very strongly and said that as we had the right to smoke in our homes they want the right to smoke in their homes.

The Vice-Chair: Thank you. Comments, questions?

Mr Sterling: Yes, I strongly support Mrs O'Neill's motion here because of the evidence we heard in front of this committee. In fact, I think on the last day we heard that evidence from a resident of a home, that it was very, very difficult for him to get out of the home, particularly in the winter when there's ice on the roads and that kind of thing, to cross the street, to go to a convenience store in order to purchase cigarettes.

Perhaps the parliamentary assistant can answer this for me. If a person in a home for the aged doesn't have a relative who can go and get cigarettes for him, what is he or she to do? Can you answer that? How do they get their tobacco? Can you tell me how they get it?

Mr O'Connor: As local MPPs we sometimes have to draw analogies and look at our own ridings for examples. There is a large number of long-term care facilities within my riding that have no tuck shop, yet have residents there who smoke. So obviously there's the ability for them to get cigarettes regardless of whether they go down the hallway to purchase them or do it in another fashion. So the inability for the residents to get the tobacco products I guess would be the dilemma that some of these people face currently.

Mr Sterling: So you want to put more people in this dilemma? Is that what I am to understand? I mean, that's what you're saying. You're saying you want to put more of these elderly people, who have difficulty getting out, particularly in the wintertime, in the dilemma of not being able to buy tobacco, to which they are addicted.

Mr O'Connor: I guess "dilemma" is a poor choice of words, but I did say it.

Mr Sterling: So you stand by it?

Mr O'Connor: The point is what we're dealing with is --

Mr Sterling: God, I mean, where's the compassion in this government?

The Vice-Chair: Please, please.

Mr O'Connor: Thank you.

The Vice-Chair: Would you care to respond.

Mr O'Connor: Yes, I appreciated that, Mr Sterling, you had the opportunity to join us for a day of committee hearings and to develop all of your opinions based on a day or so. The fact is that this legislation deals with health facilities, and in this portion of health facilities there is the ability for smokers to get cigarettes at this point, whether they have a tuck shop or not.

Mrs O'Neill: I have a lot of difficulty with the definition of homes for the aged and rest homes as long-term care facilities. They are not. They do not fall in the same definition. Many of the residents do not require any care at all, especially under the rest homes act. These are people who are living communally. They are living there because they have given up their own properties for the most part, but many of them are going to the dining room to eat, they are looking after all of their own personal care. It is a case of not being able to be very mobile in the exterior, particularly in the climate we're in in the winter.

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I feel quite strongly that this is not the same as a nursing home or a home for special care. You're putting all of these acts together. I don't know about your mailboxes -- and the people who came here from the residents' council were very mobile people. They would not be the least bit appreciative of being termed people who need long-term care. It is not a health care facility in the same way that the other facilities that are part of this act are.

Mr O'Connor: As we went through this consultation and the consultation around the proposed legislation back in 1993, we heard people refer to these places as health facilities. At some points there are differences of opinion and we'll vote on them as differences of opinion. This was something that was pointed out to us on numerous occasions, that these aren't special exceptions as well.

Mrs O'Neill: I have a lot of difficulty that we have acts and they define a certain kind of living arrangement and that living arrangement is not being applied here. We are not talking about a health care facility here in the definition of the health facilities and professional act that I know. In any case, you say it's a difference of opinion; I say it's a difference in definition.

Mr Jim Wilson: I'm most disappointed in Mr O'Connor's condescending response to my colleague Mr Sterling. I think it was deplorable. Mr Sterling certainly deserves an apology. He has a nine-year record second to none on this issue in this Legislature.

Mrs O'Neill: That's true.

Mr Jim Wilson: He has worked very, very hard on this issue and is known outside of this Legislature as a leader.

We are trying to help you, Mr O'Connor, by putting some consistency in this act. Your own logic fails because you want to go ahead and pick on the frail elderly of this society, and you have no good excuse for it except to give a condescending response to my colleague. I think he deserves an apology from you right now.

Mr O'Connor: I don't believe there's anything due at this point. I guess we could look at the record for all the number of years that he was I think maybe at one point even a cabinet minister, when he could have brought forward this legislation.

Mr Jim Wilson: You can't win.

Mrs O'Neill: What an answer.

Mr McGuinty: I think a pattern has emerged during the course of the hearings. I think it becomes apparent that whenever you stray from the original intent, which is to make it harder for young Ontarians to get hooked to this terrible product, you get into areas of controversy. The only parts of this bill that are going to come back to haunt the government are those parts which -- you're going to start to give elderly people in a home, for instance, a hard time to get their cigarettes. When normally they could buy them there, now you've closed up the shop. We didn't hear from the people who run those things in terms of the economic impact it would have, but I'm sure there would be some economic impact there.

Just to give you an example, and I don't have a heck of a lot of experience in this area, when I was practising law I was appointed committee for two elderly women, sisters; one was 92 and one was 96. I was all they had in North American. They had no relations here. They'd come over here from across the sea and had worked here and retired and had become mentally incompetent. I would set aside a few dollars every month for them to spend at their home. Nobody ever visited them; maybe three times a year I'd have to, in order to see what was going on, but that was more out of a sense of obligation, to be very frank. I don't know what they're going to do now when you tell them that they can't buy their cigarettes in the facility.

It's a legal product. Again, we're not talking about concerns relating to secondhand smoke. There are designated smoking areas. We're just saying, "We're going to give you a hard time," and I don't see the justification behind it.

Mr O'Connor: I appreciate the concern you raise here. There are many different groups that go in to visit people who are in a number of different types of residences, whether they be rest homes or homes for special care or whether they be a long-term care facility. There are many different ways that people will have the ability to have access to this product. This section of the bill is to ban the sale in health care facilities, and I guess there is a difference of opinion here.

Mr Jim Wilson: I'm going to keep pressing on this issue because at some point logic should play into the law. In fact, the origin of law is pretty much along logical grounds.

Let me ask the question again: How can you say that psychiatric residents are more vulnerable than other people in rest homes and that sort of thing, and how can you discriminate against people who are in rest homes and nursing homes? How can you do that? It's not a difference of opinion. I think the public deserves an answer on how you can do that. Don't blame it on the groups that came forward. We didn't hear from every group in the world, you know; we heard from those that made the list, for goodness' sake. How could somebody in a nursing home who's confined to a wheelchair, who now can't even buy cigarettes, get down to this building to talk to us?

Mr O'Connor: I appreciate your concern. Given that all these types of facilities that are mentioned here do come under long-term care legislation presently, are you suggesting then that those long-term care facilities that I know of within my riding, and perhaps in your riding, should start selling them? Are you starting to say that we should be opening up tuck shops to sell cigarettes in all the ones that don't have them? I guess that's where there are differences of opinion. Maybe you think that opening up these tuck shops for the ones that don't have them is the appropriate way.

Mr Jim Wilson: I do not think you should be banning them, as you're banning the sale now. It should be up to those facilities. You have to be consistent across the board. I doubt you'll see in this day and age many of them open up tuck shops to sell cigarettes, but if that happened as a consequence, it wouldn't bother me. The point would be that they're serving the residents. I appreciate the intent of your now-amended section 3, but you don't have any consistency with other facilities. That's the problem.

Mr O'Connor: I would say this is pretty consistent right through it where we're dealing with health care facilities. It's pretty consistent. The only exception is the fact that we heard that in the psychiatric facilities --

Mr Jim Wilson: There's no consistency.

Mr O'Connor: -- these people don't have the ability to come or go, and we heard from the advocates saying that these people do not have the same amount of people who do come and visit these individuals, and they don't have the same ability. Those people were, as was pointed out to the committee, I thought in a much more vulnerable situation.

Mr Jim Wilson: What are people supposed to do if they live in a nursing home now, or a rest home, where they currently are able to get cigarettes in the tuck shop and you close that down when this act comes into effect and they're addicted to smoking and they're confined to a wheelchair and not easily able to get out of that facility? What are they supposed to do? That's the same issue we're dealing with in psychiatric facilities.

Mr O'Connor: I guess that here, for all those nursing homes and long-term care facilities within my riding now that do not sell them, here's a time where maybe --

Mr Jim Wilson: Tell me about those that do sell them. You can't ban something that doesn't exist. If they don't sell them now, it's irrelevant. It's those that sell them now, Mr O'Connor.

The Vice-Chair: Mr Wilson, allow Mr O'Connor to complete his response, please.

Mr O'Connor: Thank you. I suppose that in this type of situation where we're now talking about all health care facilities, maybe the honourable critic might be able to offer some advice and maybe network in his riding. But the fact is that this is consistent, that we are talking about all health care facilities being treated in a consistent fashion, with the exception of those very vulnerable people in the psychiatric facilities, as was pointed out to us.

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Mr Jim Wilson: But their vulnerability stems from the inability to leave that facility -- right? -- a psychiatric facility, to go elsewhere for cigarettes if they're not sold on the premises somewhere. That is their vulnerability when it comes to this act. We're not dealing with the Mental Health Act per se and definitions thereunder. We're dealing with access to tobacco products. Their vulnerability is the same as someone else's vulnerability in another institution, who because of physical incapacity or otherwise, cannot go outside the doors of the nursing home either.

I don't see the consistency here, Mr O'Connor. I do not see the consistency at all. You're talking about people who can't readily get access to a product they're addicted to. To me, it shouldn't matter whether you're talking about the psychiatric facility or the nursing home. So explain to me the consistency on that. Don't just say it's consistent, because it's not consistent.

Mr O'Connor: Paragraph 4(2)1, Public Hospitals Act, that's a hospital, a health care facility; paragraph 4(2)2, Private Hospitals Act; paragraph 4(2)3, psychiatric facility, dealing with the very real situation that was presented to us and there's the government amendment that we voted on; paragraph 4(2)4, Nursing Homes Act. There's something here. I think we're dealing with health care facilities. Paragraph 4(2)5, homes for special care, regulated under the Ministry of Health. It's a health care facility. Most of these fall under the long-term care bill that is directly under the Ministry of Health. They are health care facilities.

Mr Jim Wilson: In response to that, I'm just astonished that the parliamentary assistant to the Minister of Health doesn't know the difference between the Public Hospitals Act and the Private Hospitals Act and, as Ms O'Neill quite correctly pointed out, the other ones listed in 4, 5, 6 and 7, which are long-term care facilities. It's their homes for goodness' sake.

We're not arguing about banning the sale of tobacco products in hospitals and private hospitals. That's not what we're arguing here. They're a different category. You may call them all health care facilities, but they are, under the law, called long-term care facilities now, that dispense health care and look after the health needs of individuals, but it also is their long-term residence, which is entirely different in most cases than hospitals and private hospitals. Particularly when you've closed 5,400 hospital beds, they're not going to be anyone's long-term facility at all.

Now you've moved into an area where people have to live, like psychiatric facilities, where they're incarcerated, for goodness' sake, and you're taking away their ability to easily buy a product that they're addicted to. I can't understand how you make an exception for psychiatric facilities in your own amendment, but you don't make any exceptions for these other long-term care facilities.

Mr O'Connor: We've certainly had compelling evidence presented to this committee that these patients in these type of psychiatric facilities did warrant an exemption, given the very real scenario as presented to the committee by advocates for them. I don't think we can classify the two at the same time without recognizing that they were very real dilemmas that faced us. They're real serious situations and a situation over control of these products put people at risk. In fact, I know that your colleague supported them in that, and I think he probably would have moved to have this area struck if it wasn't included as an exemption.

Mr Sterling: What I can't understand here is that surely the difference between paragraphs 1 and 2 of subsection 4(2) is that are dealing with people in large institutions where people are coming and going on a daily basis. There are patients going in for short-term periods, coming out for short-term periods. People are visiting them on a regular basis. Some of them are quite mobile themselves to walk outside a regular hospital.

When you get into the other sections of this particular subsection, when you're dealing with psychiatric institutions, nursing homes, homes for special care, charitable institutions or homes for the aged and people who come under the rest homes act, you're talking about people who are not mobile. We're talking about our elderly population.

No one is talking here about where these people can smoke in these institutions and where they can't. My assumption and I think everybody else's assumption is that there are smoking areas for these people to go and smoke in and that they obey those laws within those institutions. We're not talking about saying to these old people, "You cannot smoke in these institutions." We're saying, "Yes, you can smoke in certain places in these institutions and that will happen after as well as before."

But surely to God what you're doing in all these paragraphs is that in 4, 5, 6 and 7 you're dealing with the elderly population and the bottom line is, Mr O'Connor, you're going to make the life of the smokers in those institutions more miserable and more expensive because of these amendments. I will not vote for them and I will fight for those elderly people.

I really wish you'd go back and ask your minister whether she has thought about what she's doing, because I don't think she knows what these sections are about. I wish she were here today. Where is she? Where is the minister?

Mr O'Connor: I appreciate your concern about the whereabouts of the minister. We have had the opportunity, not only myself but my colleagues, to sit down and discuss this legislation with the minister and the minister supports this. I have to point to the long-term care facilities that I have in my riding that don't sell tobacco products. Are you saying that the way of life they've got there is that terrible, that those facilities that don't sell it now are by any way substandard to those that do sell it? The key here is that the people in the psychiatric facilities pointed out a very real and compelling argument to us that we responded to.

Mrs Haslam: We're talking about seniors and I keep thinking of the number of seniors now who stay in their own homes, with community care that comes in to them from all sorts of services that are offered. They have a slight disability in some cases to go outside their homes or fewer occasions to go outside their homes, but they still go outside their homes. They still are able to have someone bring them cigarettes perhaps or have somebody who would bring them that type of service.

I would look at the same senior in some of these homes who is mobile. I know there are services offered to some people in homes that say: "Let's go out on an outing. Let's go here. Let's go there." There are some people who take advantage of excursions and are able to leave the facility on a program basis offered by the homes. I would rather see us say no, no, no, rather than say no, yes, no, yes, no, yes. I would rather see us be a little more steady in what we're saying in taking a look at the health facilities and saying: "These are health facilities. There are some that don't have tuck shops in them that are capable and are operating quite well." All we're saying is that they are health facilities and we're limiting the necessity for a tuck shop to sell tobacco in a health facility rather than going back and forth and back and forth on the issue.

My other concern, and it might be a minor one, is that I'm not saying young people will find loopholes but I'm concerned that they're visiting grandpa and they go down to the tuck shop and say, "My grandpa is here and he sent me down for a package of cigarettes." The possibility of them saying in that tuck shop, "Okay, fine; here," is there and I would be concerned if we allowed that opportunity there too for young people.

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Mr Jim Wilson: I guess the point is that if you don't try and regulate what's happening now in these long-term care facilities -- that is probably what the government wants. The witness we had speak to this from the veterans indicated that their internal policy at that hospital was to ensure that non-residents did not have access to cigarette sales in the tuck shop and there was a separate sales venue for residents only. That's what I think most people would agree is reasonable, and it didn't take legislation to do that, nor did it take saying that incarcerated psychiatric residents are somehow able to get cigarettes on premises but the frail elderly, "Well, you're out of luck."

Why would you want to put yourself in that position when what's happening out there now without any law is a positive trend, according to the testimony that was given to this committee? It still leaves a degree of common sense for people who are addicted. As someone said earlier, a lot of those people were addicted back when they were fighting for our country. It wasn't their fault. That was the way the world went at that time.

Mr Sterling: I was interested in Ms Haslam's remarks. I was interested in her saying that it's of greater importance to have this even principle over all these health care institutions than to have common sense. That's basically what she said. She said it's more important that we as a government say that we're going to have a rule than to have common sense. Now, if a government's going to go that far --

Mr Jim Wilson: They've gone that far.

Mr Sterling: -- if that's their argument, I give up.

Mr Jim Wilson: Let's call an election.

Mrs O'Neill: We had a group here that was dealing with young people -- I actually think they were from Etobicoke but I might be wrong -- who were having difficulty giving up smoking. They had a drop-in centre. Difficult circumstances had led these people to seek a lot of supports outside their home. They told us that the best way to get these people off smoking was to help them regulate the smoking in the centre. I think you could remember that testimony.

We have residents' councils now as part of the long-term care reform, which as we like to remind people, has never yet really happened. We have a lot of promises, particularly monetary ones, that have not come forward. We have residents' councils, and what is their role going to be? They can't even decide in a home for the aged whether they're going to have a smoking area or not, whether they're going to be able to have cigarettes or tobacco in their tuck shop. The decisions the residents' council is going to be dealing with are already going to be regulated. This is not the way to help people be comfortable in their old age. It's not the way to help them get along with each other either. I really do feel that this is again using a hammer to hit a mosquito.

Mr McGuinty: In terms of something that I feel confident ties all those together here, we've had the privilege of hearing from a number of presenters, we've gathered all kinds of information and I'd say we've acquired a substantial education in terms of the smoking problem in so far as it affects this province.

In terms of advancing the cause of, I wouldn't want to call it anti-smoking, I'd say pro health in this province, it's important that we make sure we bring people along with us. In anything you do, you want to create more goodwill than ill will, and it's these kinds of provisions that I think are going to hurt people who are out there on the front lines. That does, I would argue, the cause of health or anti-smoking a disservice. That's the kind of stuff that can backfire, blow up in your face and cause problems.

What I think the intent of Bill 119 should be, and I know everybody would agree with this particular aspect, is that we want to create a smoke-free generation. There are all kinds of people out there now who are hooked, and except for the issue of ensuring that people aren't harmed by secondhand smoke, there's not a heck of a lot we can do about those people, and just to make their lives more miserable I think does us a disservice, does the government a disservice and does the cause of health a disservice.

Mr O'Connor: I appreciate the opportunity to comment here. The fact is that we heard from many people through this process of committee hearings. We heard from people like the Canadian Cancer Society and the Heart and Stroke Foundation of Ontario. We've heard from the Lung Association and from many different communities across the province. We heard from different departments of health and health units. We heard from a lot of individuals. We never heard, though, I don't think, anyone saying this is a terrible way of life that people are living now in long-term care facilities because we are moving in this sort of direction. We are now talking about long-term care facilities, as health care facilities, not selling tobacco.

I don't recall the cancer society saying, "This is a very bad move. You shouldn't be doing this. This is a very terrible thing that you're doing." We never heard that from a health unit. The fact is that we heard from a lot of people and a lot of support for this legislation and support for all the members of the Legislature in bringing forward this legislation. We didn't hear, though, some of the arguments that have been presented.

I would have to caution you that I don't think I could go back to my riding as an MPP and suggest that all those long-term care facilities not selling cigarettes today are causing a real, undue hardship on all those individuals living there and that their way of life is that terrible.

Mr McGuinty: That's a stupid argument.

Mr Jim Wilson: That's the most naïve argument I've ever heard in my life, to expect the cancer society to come forward and say what he just said it ought to have said or ought not to have said. That's ridiculous.

Secondly, long-term care facilities that are selling tobacco products are not selling them for the heck of it. These often volunteer tuck shops are selling it because there's a demand among patients. Maybe those who aren't selling tobacco products don't have sufficient demand to bother stocking tobacco products in the tuck shops. You should just leave well enough alone.

As we said, in what discussion we had at committee about this it seemed to me that there was a positive trend out there. People left to their own devices, health care professionals and patients and their advocates were coming to amenable and commonsense solutions to what they would see as a problem or as not a problem in their own institutions. I don't think it's your job at this point to come in, without a full debate on these sections, to suddenly place a ban.

Mr O'Connor: I just have to point out the consultation that took place prior to this. The draft legislation was put out there in March 1993. There was a consultation that took place. We heard from 240 individuals. We had oral presentations to people within the ministry from 34 different individuals, groups, representing a large segment of the population. This wasn't an area that raised a big concern, or as much of a concern as is being raised at this point in this debate.

Mr Jim Wilson: It strikes me that a lot of people who live in nursing homes aren't able to get to this committee to tell us their thoughts, first of all.

Secondly, Mr O'Connor, just because we hear presentations doesn't mean we've heard everything there is to hear about a subject. We know for a fact that it was difficult early on in these committee hearings to even get on the schedule of the committee, so I would hope you don't approach every committee hearing as if we're somehow locked into just what we hear at committee and we're to leave our brains at the door with respect to what's happening in the rest of the world outside these hearings.

Mr O'Connor: There again, I guess this is where there are differences of opinions. You feel we shouldn't be listening to, for example, those very vulnerable people. That's why we had the committee hearings, so that we could hear from some of the very vulnerable people in these psychiatric facilities who are put into very serious situations. That's why we had the hearings, so that we could hear from these people as they come forward and make these presentations to us.

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The Vice-Chair: Anyone else? If not, all those in favour of the Liberal motion moved by Ms O'Neill to amend paragraph 4(2)7? Opposed? Motion lost.

The next amendment is the PC motion marked alternate 1 amending 4(2)8 and 4(3)8 and 9, I believe.

Mr Jim Wilson: I move that section 4 of the bill be amended by,

(a) striking out paragraph 8 of subsection (2); and

(b) striking out "paragraphs 8 and 9" in the third line of subsection (3) and substituting "paragraph 9."

It's clear from the amendment that this is an attempt to strike out the government-imposed ban on the sale of tobacco products in pharmacies; that is, it's an attempt to allow pharmacies that want to continue to sell tobacco products to continue to do so.

Mr McGuinty: I propose an amendment connected with this issue. We're going to be spending some time on the whole issue related to the sale of tobacco products in pharmacies. I think it was Mr Sterling who may have made the comment earlier on which I think was quite apt that we seem to be spending a great deal of time and energy on a topic which at the end of the day doesn't contribute significantly to the health issue in this province.

We didn't hear from anybody who said that banning tobacco sales in pharmacies will reduce tobacco usage. We talked about the symbolism, those who made the presentations talked about the symbolism, and how it just didn't sit right to have somebody who was making a living promoting health also selling a product which causes harm.

I don't want to rehash all those arguments as to who's right and who's wrong in this and what are the true feelings of the members of the college. We've heard from some on one side and some on the other side of this issue. If there's anything that's clear it's that there's no consensus. I think the usual is that if there's no consensus, you don't move.

I raised this question earlier and I want to put it again. I expect that there will be a constitutional challenge, that the argument will be made in court that it is simply not constitutional to ban the sale of a legal product from one particular retailer but allow it everywhere else. I think that constitutionally it is permissible to ban it everywhere but one particular facility, like the LCBO or our beer stores, but it's quite another thing to say everybody out there can sell it except you.

I'd asked the question earlier and I think counsel here had indicated that an opinion had been obtained. It may be subject to a solicitor-client privilege so we couldn't really release that information. The people of the province are the ones who are the client in this case, and they are the ones who are footing the bill to get the opinion, and I think we should be entitled to know what that opinion is. I'm wondering if we can have the results of that opinion.

What are our constitutional experts saying? What's going to happen at the end of the day when this is challenged, because I fully expect it will be? Are we going to win? Are we going to lose? And if we're going to win, why?

Mr O'Connor: I appreciate the comments made, and the client in this case is the Minister of Health representing the concerns for health for the province of Ontario. Information such as that is information that would be obtained for decisions made on the legislation, just as in many cases there is information that is gathered for any cabinet minister or the cabinet itself in making decisions on behalf of the residents of the province of Ontario.

That information is very important. Given that my friend and colleague, who happens to be a lawyer, would know that you don't go into court with your books wide open and say, "These are all the arguments that we have," before you even have that opportunity to have a discussion, the opinion is that it falls right in with where we're headed regarding the health care facilities and that as a regulated health care profession, it fits in there as well.

The key here is in the discussion we heard from the college of pharmacy. The college of pharmacy doesn't represent the pharmacist but the people of the province of Ontario who go for that type of health care by going to a pharmacist. It's their opinion that it's in the best interests that these facilities shouldn't be selling them. You point out quite rightly that there isn't complete, full agreement, though I believe we've heard from the majority of people who are involved with that body saying there is an awful lot of support.

I would simply answer that this is another health care facility. It's something that is regulated through the Regulated Health Professions Act and it will be treated as health care professionals are.

Mr McGuinty: I'm sure my Conservative colleagues here will have some comments on that, but I want to come back to the legal opinion. I just want to ascertain this: An opinion was obtained?

Mr O'Connor: All information on any number of matters quite often will be kept for the minister or cabinet in deciding where to go from it. In some cases, and perhaps as you point out, if there is a court challenge, then that information, in the best interests of the people of Ontario, would be kept there. I would think that as a lawyer you could understand that.

Mr McGuinty: What if the opinion, Mr O'Connor, said, "Listen, there is no way on God's Earth that this is going to withstand a constitutional challenge"? I think that would be very important information for all of us to consider.

Mr Jim Wilson: That wouldn't stop them.

Mr O'Connor: It wouldn't be here at this point. At this point, we've heard, through the consultation process, many different opinions on a number of things. When the draft legislation was put out there in March 1993, we heard at that time from over 240 people making presentations and 34 making oral presentations to people within the Ministry of Health who felt this was a very important element to be included in this legislation.

Mr Jim Wilson: I just want to make clear why I don't support the government's ban on the sale of tobacco products in pharmacies. It really, in a nutshell, is because I'm not convinced and have not been convinced that prohibiting the sale of tobacco products in one part of the retail sector will in any way stop young people from starting to smoke.

Mr O'Connor, in our last round of debate, spoke about our having to listen to what was presented at committee. Nobody said it would actually reduce consumption. We heard a lot about that mixed message that perhaps pharmacists selling cigarettes -- pharmacies, excuse me; it's often not the pharmacist at all who sells the cigarettes -- that pharmacies selling cigarettes sends a mixed message to young people. Yet we also saw polling that indicated that most people saw pharmacies as retail establishments and did not make the connection that was implied by many of the witnesses who told us that there was a mixed message with respect to the sale of tobacco products.

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But I want to go back to the legal question also, because it strikes me that there's a very good chance you won't be in government when that case proceeds to the courts, if it proceeds, and if this is gamesmanship, I think the government has to be forthright with people now. It's my understanding that there are some very good arguments and some very good reasons to take the government to court over this, and if you won't share the basis of the government's defence of this section, then I think that's awful.

I never thought I'd long for the days of Elie Martel and David Reville again, but I'll tell you that they'd be hanging from the bloody chandeliers if a Tory cabinet minister -- and actually, cabinet ministers used to come to committee; we didn't have to put up with just having parliamentary assistants -- had told them that it was a secret deal or it was a secret opinion; they'd have gone absolutely crazy, and rightly so. Now we're being told there's a secret opinion that may cost taxpayers a lot of money to fight this ban in the future, and the government doesn't want to share with its fellow parliamentarians the basis for its defence of this section. Shame on you, is about all I can say.

The minister may be the client in this particular case, but she is more importantly a minister of the crown and is a public servant. As such, since the cabinet decision has already been taken, I don't know why you can't possibly release the defence. It's beyond me. I can see your keeping such advice to cabinet secret on its way to cabinet, but once the decision is made and you're public with your decision, then the defence should be made public. It's beyond me.

Mr Sterling: Maybe there isn't any.

Mr Jim Wilson: Mr Sterling raises the point that maybe it doesn't exist. Maybe this is smoke and mirrors. Maybe you don't have an opinion.

Given that we can't get the government to tell us what its secret dealings are, I'd like to ask our impartial legislative counsel. There had been some cases in BC that I was familiar with on other topics in the last couple of years, and unfortunately I don't have the citation before me, but I thought it was not constitutional for the government to knowingly put someone out of business. Is legislative counsel familiar with what I might be referring to?

Ms Sibylle Filion: I'm afraid this is a question that's more properly put to legal counsel for the ministry.

Mr Jim Wilson: But legal counsel is in the pocket of the PA, so how am I supposed to get an answer? Okay, I'll try legal counsel. Frank, since the PA won't tell us, what's the basis of the defence here? You're a public servant, Frank.

Mr Williams: Without going much beyond what the parliamentary assistant has already said, I think I've -- no, let me finish my comments; you asked me. I made comments earlier to the committee that yes, I was of the opinion that there was sufficient authority, in our view, to go ahead with this particular part of the bill, and I still am of that opinion. As to why, I think that's the part that concerns the parliamentary assistant and myself, but certainly we are of the view that there is sufficient authority to go ahead with this section.

Mr Jim Wilson: You're not going to tell us why. Why can't you tell us why?

Interjections.

Mr Jim Wilson: Okay, let's do an abstract. If it was a parallel case, if your client weren't the Minister of Health, what would be the why?

Mr Williams: Very simple, without getting into any details in this particular instance, I know of a particular instance where a legal opinion was given that was passed on to an individual from somebody in the crown law office, and the particular opinion ended up finding its way to the group that was challenging a particular piece of legislation. When it got to court, everybody knew what the arguments of the crown were.

Certainly, if you want to support a bill and you support a particular part of a bill, you would want to see it supported to its fullest extent. So to that extent, I would think that as legislators you wouldn't want to jeopardize any sections that you happen to support. In any event, it would be protected under freedom of information, so I would be precluded from divulging that, even if I wanted to. That's really the simple answer.

Mr Jim Wilson: I appreciate that, and I knew you'd get to that simple answer eventually, which the parliamentary assistant should have pulled out of his hat, because he'd have been a lot safer pulling that one out first. But none the less, in roundabout terms then, it seems to me that if you can't divulge the opinion, you're breaking new ground. Would that be true? You must be breaking new ground with this ban.

Mr Williams: No, I don't think so.

Mr Jim Wilson: Then why would it be so secretive and you can't reveal it to a possible opponent?

Mr Williams: I stated earlier, and I'm not reluctant to state it again, that yes, we're of the opinion that constitutionally it's supportable. As I also mentioned earlier, the courts have not supported economic arguments as being a constitutionally supportable venue that the courts have looked at. They'll support race, religion, sex, a whole bunch of categories, but economic interest has not been an area that the courts, at least the Supreme Court of Canada, have traditionally supported. On the basis of what I said earlier and in those generalities, we're of the opinion that the section is viable.

Mr O'Connor: Just on the element that Mr Wilson had mentioned about no one saying that limiting the number of access points to tobacco products has anything to do with the amount of consumption, we did hear from many different health units the opinion that it could. In fact, the Addiction Research Foundation came before the committee and suggested that by limiting the number of access points to tobacco products, you also have an effect on the consumption in that you would lower it.

Mr McGuinty: I know that a number of presenters offered that opinion, but really I think it's completely unrealistic. The only number I ever got was that there were about 120,000 retailers in the province selling cigarettes. What are we talking about, less than 2,000 pharmacies? Only half of those are selling cigarettes now. I just don't think this is going to put any kind of a dent in terms of accessibility, and I think it's unrealistic to speak in that regard at all. I think the only connection here is the symbolism. I myself find that just pretty tenuous.

The other comment I wanted to make is that legal counsel suggested that a good reason for holding back an opinion is because you're going to release information to the other side. I don't agree with that at all. In these cases, everybody gets to know what the other side's arguments are going to be before they get to court. You either read about it in the paper or you read about it in written arguments, so it's not a case of surprising the other side with a particular argument. Either you've got it or you don't; it's as simple as that. You take your best shot when you appear before whoever's going to decide the matter.

I don't think it's appropriate to hold back information because you don't want the other side to find out what truths you happen to be holding on to. You do want to hold it back, though, if what you've got says, "We're in trouble." That's when you want to hold it back.

Mr O'Connor: There's always room for a difference of opinion in debate. I guess that's what debate's about. The fact is that we heard from many presenters. We heard from a large number of pharmacists, either pro or against the ban, as a health care facility and as health care providers, whether or not they should be selling this lethal product. We heard quite varied opinions on the sale of this product through them.

Mrs Caplan: There are a couple of comments I would like to make on this section. I start from the premise that it is the responsibility of legislators to make laws and for the courts then to rule on whether those laws achieve their goals in a way which is acceptable through the court system. Laws that are made are always being tested and challenged. Particularly since the advent of our Charter of Rights and Freedoms, laws are being challenged in ways that they have not been challenged before. I believe that's good and that it is a very important and dynamic part of the process.

It seems to me, however, that what the courts may do at a certain point in time shouldn't be the only consideration when determining what is good public policy and what would be good lawmaking. It also seems to me that when you have the College of Pharmacists, which is the public interest governing body of a professional organization, in this case health professionals, saying that it believes it would be in the public interest to not permit pharmacies to sell tobacco and tobacco products, this is a very strong statement from a public interest body that lawmakers should be very interested in and, more than interested in, should respond to in a positive way.

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I think that the Ontario College of Pharmacists has taken a leadership role in its recommendation to the Ministry of Health and the government. I know that it's taken a leadership role which is not one that is supported by every member of the pharmacy profession. We know that in a recent questionnaire and a poll that was taken about 60% of pharmacists do not support the position of the college and 40% do. But it is important to remember that it is the college of pharmacy that has the public interest mandate given to it by the provincial government as part of the regulated health professions legislation. As such, their opinion on what is in the public interest, what will raise the public consciousness to the hazards of tobacco, I think should be a general theme as we discuss this particular part of the legislation.

Why did the college of pharmacy, on behalf of the pharmacists, come forward with this regulation? Because they believe, as health professionals, that pharmacists have an obligation to act in a way which is going to improve or maintain good health for their patients, for their clients, and because they are also retailers, for their customers.

Whether, as an end result, this part of the act is as successful as we would all hope it would be remains to be seen. You never know, when you draft legislation, whether or not your goals and objectives are going to be achieved. But again, just as you don't know what the courts are likely going to rule on the legislation until after they've had a chance to do their thing and review it, similarly you don't know whether the public policy imperative of the legislation is going to be achieved until you have a chance to see it in place and see if it is working as it was intended.

The reason I enjoy very much my opportunity to participate as a lawmaker in this province is because laws are not carved in stone. They are subject to change and amendment and debate. Lawmaking is ever evolving as you have the additional information of: Is it working? Is it not working? Is it having the intended effect? Did the courts strike down a certain section? Do we have to look at it and work at it again?

I feel it's important we remember that at this particular time and during this debate, because legislation is never perfect and it is never the best solution. In my view, you can't legislate behaviours, but what legislation can do is have a dramatic effect on improving the public's consciousness and the public's education about the matter which you are legislating. If, through this legislation, the message is sent, particularly to young people but to the public in general, of the serious effects of tobacco use and particularly cigarettes, then the public's interest will be well served by this legislation.

It's my hope that it will achieve the goals that are stated. It's my hope that the courts will find in the future that the legislation is in order and stands the tests of the charter. But it's also my view that if that change occurs in some way in the future, legislators will attempt to find other means to achieve the important public policy objective to encourage young people not to start smoking and to encourage older adults to quit.

It's with that thinking that I very much support this attempt to achieve the goals of the college of pharmacy. I think they should be commended, as we have said before at this committee, for coming forth with this recommendation, which has a deleterious and serious economic impact, potentially, for some of their members, although we know many pharmacists have already chosen to not sell cigarettes, and we've heard from those that in fact there has not been a serious negative economic impact. So even that remains in question. But the college of pharmacy has taken a bold step and the government I think has responded quite appropriately to the public interest body which represents health professionals in this province who also happen to own and operate pharmacies.

It's interesting to note that we have given pharmacists a monopoly. They are the only ones able to own and they must own a 51% share in all pharmacies in this province. So when the college of pharmacy says, "We believe that our health professionals, our pharmacists, have a special obligation to guard the public health," it seems to me it is very appropriate for a legislative committee to consider that in its entirety when considering the legislation.

I will be supporting that, even though I have concerns about what might happen in the future to the legislation in the courts. I have concerns whether or not this is going to be sufficient to achieve the goals and objectives of the college of pharmacy, but I think it is a worthwhile step at this point for those people who are interested, as the college of pharmacy is, in good public policy that will achieve a better health status for the people of the province of Ontario.

Mr O'Connor: There's very little I can add to that. It was a very compelling argument, and if I wasn't convinced already, you certainly would have convinced me.

I guess the key that we heard through this argument was that we heard from not only pharmacists present but even from the young students going through to become pharmacists that their wish was to be linked with health care, with being professionals and trying to promote wellness, and they really did find it contradictory that when we're talking about good health, health care professionals would be condoning the sale of a product that when taken as directed can be lethal. I appreciate the comments from my colleague. Any further questions?

Mr Robert Frankford (Scarborough East): This is the first time I've been on this committee and I've listened with great interest to the contributions. If I could make a general comment just to reinforce why this legislation is thought necessary, we are talking about health issues and significant common health problems. We're talking about a number of forms of cancer, but I think we shouldn't forget obstructive lung disease, arterial disease, complications of diabetes. These are all things which are well documented as severely exacerbated by cigarette smoking.

When we remind ourselves of this, it just becomes obvious that there's a profound conflict if we expect pharmacists to be profiting from cigarettes. On reflection, it really is totally inconsistent if you have a chronic bronchitic patient you're providing expensive antibiotics and bronchodilators to and you're selling them cigarettes. I think that must be the reason the pharmacists have taken this very good initiative to say: "There is a conflict. We have to be professionals, we have to profit from using our training, and our mandate is the promotion and preservation of health."

I hope that everyone understands and that we can really proceed, with the legal reassurances that this is likely to withstand any challenge, that the college is there to promote the public interest by statute. This is something which will make a very profound step for the control of tobacco, for the reduction of disease, and we should commend those pharmacists who have already taken that step, who have in most cases found they have not suffered financially from it in any case. I'm sure this powerful legislation will stand.

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Mr McGuinty: My colleague Mrs Caplan has spoken in regard to this issue and made some very important comments, and as a former Minister of Health she brings considerable experience to the issue. But I want to make sure that the concerns expressed by a significant proportion of the members of our caucus do not go unheard or unenunciated. That is the concern relating to the economic impact of the ban -- I think my motion will go at least some length towards addressing that -- and the fairness issue in terms of telling pharmacists what they can and cannot sell even though we're dealing with a legal product.

I guess this is seen as a government being overly intrusive when at the end of the day, again, we're not going to reduce accessibility to cigarettes one iota. I just wanted to put those on the record so we're clear as to the difficulty that this issue has presented for us as a caucus. I hope my amendment will be adopted by the government. I remain very optimistic of course, Mr Chair, and I look forward to dealing with that very shortly.

Mr O'Connor: I appreciate the views and concerns. I have no doubt that there are many people who are concerned about the possible economic impact. In fact we heard from many pharmacists who stated the case that, after having gone through some soul-searching and deciding to break themselves free of the tobacco sale habit they had, they've been able to do so and find other products that they can sell and to target other things that were more related to the health care aspects and elements of their profession. So I appreciate hearing your concerns.

Mr Jim Wilson: I appreciate, as always, Mr McGuinty's comments, but I do want to clarify the fact that his amendment simply extends the time at which the ban would begin to take effect. This amendment bans the ban altogether. I just want to clarify that.

The Vice-Chair: No one else? All those in favour of the PC motion moved by Mr Wilson to amend paragraph 4(2)8 and paragraphs 4(3)8 and 4(3)9? Opposed? Amendment lost.

The next is a PC amendment to subsection 4(3) headed alternate 2 -- alternate 3. I believe it's been changed.

Mr Jim Wilson: Yes, Mr Chairman. I move that subsection 4(3) of the bill be amended by striking out "first" in the fourth line and substituting "third."

The effect would be to ensure that the ban on the sale of tobacco products would not take effect until the third anniversary of the day that this section comes into force. In other words, it would give approximately three years before the pharmacists would be prohibited from selling tobacco products in their stores.

Mr O'Connor: I don't believe this amendment will get support. I know it won't from the government members. We heard many people saying that the period should be shortened and not lengthened. So the government will not be supporting this motion.

Mr Jim Wilson: May I add to that? We heard almost as many people saying it should be lengthened and not shortened, so I suppose we have a difference of opinion on that, Mr O'Connor, as you oft quote. The fact is that with the government totally ignoring the economic issues with respect to this issue, I was hoping the government would at least give those pharmacists who did the Coopers and Lybrand study, who supported it, those people who believe there will be an economic impact, some time to adjust to the new law.

I know that in government amendments, in fact, we are going to have a shorter period with respect to phasing in the ban and I think that's wrong. I think the government should move towards a longer period to allow pharmacies to get out of the business of selling tobacco products over a reasonable period of time -- and I think three years is a reasonable period of time -- given the numbers we are looking at, given the fact that we're going to see a tremendous job loss. The Coopers and Lybrand study indicates that.

You can minimize the effect of job loss on this part of the retail sector by allowing a longer phase-in period of the ban or phase-out of the sale of cigarettes, however you want to put it. I was very much hoping the government would consider that, Mr O'Connor.

Mr O'Connor: I appreciate your comments.

Mrs Haslam: This reminds me of the 10-year-old child who knew at 7 o'clock that bedtime was at 9, who knew at 8 o'clock that bedtime was at 9, who knew at 8:30 that bedtime was at 9 and at the last minute is saying, "Half an hour more, mom, half an hour more."

They have known for three years that this is coming, they have known for another year that the government was introducing legislation and was holding consultations on it and at the last minute they are saying, "A little bit longer, a little bit longer."

I don't think this is the way to go. I think we're all very cognizant of the amount of time that's already been spent on this. They do know this is coming forward, they have known for a long, long time this was coming forward, and I can't see us extending it.

Mr McGuinty: My amendment is very similar, only I propose that the ban come into play two years from the date that this section comes into force. The Conservatives are talking about three years and I think two years is more appropriate.

To pursue Mrs Haslam's analogy, we're talking about the child who was told that it was 9 o'clock, but what's happened here is that through the amendments the government has told the child it's now 8:30. It started off with the first anniversary and now they're telling us, through their amendment, that it's going to be the end of this year.

Mrs O'Neill: Right on.

Mr McGuinty: You've abbreviated the time frame and, frankly, I can't see how you did that. This particular issue was so controversial, I think the best you could have done was to leave it alone. You're rubbing salt in the wound by curtailing the period even further.

Mrs O'Neill: Compressing the time.

Mr McGuinty: The important point here is that there's an economic downside, and I think we would be wilfully blind not to recognize that. We have had some studies prepared by outside parties. It would have been nice to be able to compare them with a government study, but there was no such study, so the best we have is what we got from the outside.

Intuitively I think we all can recognize that if you cut down sales in any particular retailer, of the percentage that we're dealing with here when we're talking about cigarette sales, there's going to be a downside. I think the least we can do is call for an adjustment period.

The Conservative motion here, as well as mine, recognizes that the government plans to go ahead with this. We're just talking about doing it in a more civilized and humane way to allow for adjustment.

Mr Jim Wilson: Mrs Haslam's story was a nice little story, but I think the story ignores the very serious repercussions that we are told will occur as a result of the government imposing a ban on the sale of tobacco products in pharmacies. It seems to me that it would be more reasonable, given that on the one hand the government fills our media and print media with stories about how concerned they are about jobs, and on the other hand in committees like this they don't seem to even flinch a eye when it comes to cancelling a few jobs or a few thousand jobs, depending on who you believe.

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We know there will be job loss. I think you'd have less job loss if you gave a longer period of adjustment. I think you have to realize, in case you don't realize -- the polls should tell you something -- that a lot of people out there are absolutely in disbelief that you would move ahead with this ban, that you would not recognize the rights of the entire retail sector and that you would move to discriminate against one set of retailers for whatever reasons.

I think that while you say they've had lots of warning -- I guess that's the moral of your story, Ms Haslam -- the fact of the matter is a lot of people just can't believe that a government, during a recession, when people are starving and out on the street, would want to throw more people out on the street.

It's very, very difficult for people to understand that. Therefore, now that you've moved ahead with the ban, though, you should try and minimize its effect and its economic effect on those people who will be hurt by this ban in a three-year or a two-year period, as the Liberals are suggesting, but certainly a three-year period is the most reasonable approach. I just want to know, Mr O'Connor, don't you care about the job loss? Do you have no thoughts on that whatsoever? Please tell me what you're going to say to people who lose their jobs under this bill. I want to know because I'm going to have to tell my constituents this too.

Mr O'Connor: I appreciate this debate taking place at this point. You will recall that we heard from -- I guess I'll give you a couple of examples -- the Tobacco-Free Thunder Bay Coalition, there was Dean's Pharmacy, and I believe that was out of North Bay, that suggested we reduce the amount of time.

In fact there were a number of people who suggested we go to a 90-day period, and I'll give you some idea of who those people were. They were the Ontario Campaign for Action on Tobacco, the Ontario Public Health Association, the Toronto department of public health. There were numerous suggestions that we go to 90 days to be consistent with the vending machines, to bring it down to 90 days.

Frankly, that is a concern. It's something that we had to deal with and think about. So in dealing with this, we notice even though there is a ban on vending machines in public places through the federal legislation, there are many places in the province where we see those vending machines take place, sales still in operation in places that they shouldn't be.

December 31 to me would be a natural date. You know, it's the end of the calendar year and fiscal year for many people. It's a date that makes much more sense than picking one two, three years down the road. The two, three years down the road, I guess you could say that's what the college has done. Two or three years down the road, beyond, it's been something the college has been talking about since the late 1980s in trying to go to the pharmacies and their member pharmacists, in trying to get them to recognize that it's really inconsistent.

I guess there are many different things that needed to be looked at and it wasn't something that we took lightly for those people who suggested we shorten that period to 90 days. So I appreciate Mr Wilson's concern.

Mr Jim Wilson: I think December 31, 1994, may seem like a natural date for a government that doesn't know anything about business, but it's not, for most businesses, anything to do with the business cycle. I mean, very few will have sales closing dates on December 31, 1994. In fact it just shows you don't understand anything about the retail sector.

It begged the question throughout the debate when a lot of the groups were asking for the ban. We should have asked each and every one of them: "Do you know anything about the retail sector? Have you ever run a store?" They had a different reason for asking you for a 90-day imposition of the ban.

The fact of the matter is there will be a job loss. You did not answer my question. I don't think throwing back these interest group names at my constituents -- their eyes are going to gloss over. If I were to say, "Well, in fact, they asked for a 90-day ban," anyone on my main street would definitely say you shouldn't pass laws unless you know anything about business, and particularly if you're dealing with a retailers' law.

The date you pick is nice, but it's got nothing to do with reality. Maybe it helps the government, although government's year-end isn't until March 31, so I don't know where December 31 naturally plays into it. I still don't understand why you wouldn't allow pharmacies -- now that the decision is in law or will be in law to ban the sale of tobacco products -- why you wouldn't want to take a reasonable course, minimize the job loss, and at the end of the day still have it your way. At the end of the day you'll still be banning the sale of tobacco products, but you're allowing that retail sector to adjust over a reasonable period of time.

Even those pharmacists who have already voluntarily banned the sale of tobacco products in their own pharmacies told us that they put a lot of thought into it, that there was adjustment, that they had to find other niche markets to serve, that they had to bring in other products. You've ignored the testimony even of those people who told us that there is a way to do this to minimize the economic loss but it takes time.

In fact what you're doing, as has been said, is adding salt to the wound by shortening that adjustment period, because you've picked some airy-fairy date out of the head that you say is natural. Well, it isn't natural at all. It won't make any sense to the retail sector.

If you're going to impose these type of laws, you have to at least do the courtesy to those you're restricting. For a few short seconds, put your feet in their shoes and what they're going to do. I think you owe that to these people. You owe that to these people who are entrepreneurs who put their money forward. They're not a bunch of socialists. They employ people in this province, and in fact your own Premier's running around saying, "I'm counting on those people to put Ontario back to work."

That's very nice. Where's the Premier today to defend this particular clause in this bill? He's not here, is he? I doubt he would defend it if confronted with the job loss information that this committee was presented with.

Mr O'Connor: I can point out that the Canadian Pharmaceutical Association, I would think, is a pretty reputable business.

Mr Jim Wilson: They're not a business at all. They are representing the public interest. They're not there for retailers.

Mr O'Connor: They represent many people who are involved in representing the pharmaceutical people in that type of area. The Physicians for a Smoke-Free Canada, who came to this committee, have suggested that there be a 90-day period. I think for most business people, they'd like to see a date, something they can actually plan towards, not a date for some time yet to be mentioned.

If we can look for example to the federal legislation on this issue, they never gave, for example, the vending machine industry a date. They said upon proclamation, that's the date that vending machines in public places will be banned, which happened the day they proclaimed it. What we're suggesting here, and we'll get to it a little further in our debate, is that there be a set date so they've got actually something to work towards, to plan towards. They know where this will be. They'll know that come December 31, they have something to work towards.

Mr Jim Wilson: Why wouldn't the same logic apply to a date three years from now? If you're trying to speak against the motion, you're speaking in favour of it, I think.

Mr O'Connor: I guess that's the argument we heard repeated many times over --

Mr Jim Wilson: By a bunch of non-retailers.

Mr O'Connor: -- by people, that what we need to do is to realize that the public interest body, the college of pharmacy, has been telling pharmacists for a period of many years that they should be working towards the elimination of tobacco product sales in their stores.

Mr Jim Wilson: And they are.

Mr O'Connor: It's something they've been talking about for a long time. At this point they've come to the government because they feel: "We've done all we could. We've tried the best we can to convince some pharmacists who sometimes don't understand that we're health care professionals." It was certainly evident from a large number of them as well who recognize the fact that they are health care professionals and have taken the steps necessary to eliminate the sales.

We heard from the students going to university today studying pharmacy that they wanted to be part of a pharmacy that wasn't dependent on the sale of tobacco products. By having a fixed date, they've actually got something to plan towards. It certainly is consistent with what they suggested, because it's something they've been suggesting for years.

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Mr Tony Rizzo (Oakwood): Sometimes it seems that the members of this committee attended different meetings during the last month. My recollection is that in London, in Ottawa, in Thunder Bay, in Sudbury, everywhere we went, pharmacy owners who have chosen not to sell tobacco in the past didn't experience any reduction in business whatsoever. I think we're indulging in political rhetoric when the experience is that people are dying every day because of the use of tobacco. This has been the experience.

As a matter of fact, I remember in the first few days my tendency was to allow pharmacists another year or more, but I was convinced by the deputations of people who were in front of us during those few weeks and I changed my mind. I tried to support a motion that would decrease the amount of time we had to wait to implement this legislation rather than vice versa.

Ms Jenny Carter (Peterborough): I just wanted to say I think Mr Wilson is understating his case that selling tobacco creates jobs. It creates jobs in other ways, because when people get sick or die relatively young, then they are leaving jobs that would otherwise have been occupied that become available to other people. Of course, they're also creating jobs for doctors and hospital staff and people in the medical services.

Mr Jim Wilson: I just wanted to --

Mr Donald Abel (Wentworth North): He's lost for words.

Mr Jim Wilson: No, I'm not lost for words at all. It's a legal product. You're discriminating against one part of the retail sector. The only evidence we had was that jobs will be lost and it was mostly to do with not the tobacco sales but the ancillary sales that accompanied someone coming in and buying a pack of cigarettes.

Mr Frankford: It's a toxic product.

Mr Jim Wilson: You guys have made up your minds and I guess I've made up my mind and we're going to debate it until hell freezes over.

The fact of the matter is I did want to ask the parliamentary assistant, because I've cited a couple of occasions where, just because the college of pharmacy asked for something, this committee has not suddenly felt compelled, because it was in the public interest, to do it. Remember back to the Regulated Health Professions Act? There were all kinds of things. In fact, if anything, you agreed less with what they wanted. They got less from you than what they were demanding.

I remember during the sexual abuse legislation, they did not want to be considered a health care facility. I've re-read the transcripts. They made it absolutely clear that they didn't want to be responsible for perhaps the young cashier at the front of the store, who sells the cigarettes by the way. Most of the time it isn't the pharmacist at all; he's at the back of the store.

They didn't want to be responsible for any obscene language or non-politically correct, or as we used to call them, dirty jokes that someone might tell at the front of the store. Under the act, that was recognized. It was only in dealing with the pharmacist that there was a professional relationship between patient and pharmacist and it was only those actions that would be considered under the act.

It seems to me that there are lots of examples. It's nice to hang your hat on the fact that the college asked for it, but there are lots of examples out there where they've asked for something. This Legislature has a broader responsibility to the public. We have a responsibility to retailers. We have a responsibility to people who are jobless now and who may lose their jobs. That it seems is being ignored because of a very tunnel vision approach that the government's taking on this section of the bill.

Mr O'Connor: I guess I only point out that when we heard from the students of pharmacy, they pointed out that they wanted to work as health care professionals, as people out there promoting good health and trying to make people healthier, and they've seen the sale of tobacco products as something that was in contradiction. It's not what they went to school to learn. They didn't learn to blend tobacco products to make people well.

Tobacco products, cigarettes, when taken as directed, certainly aren't something that is going to make people healthier. It's not just the college that has made that argument to us. We've heard from the students of pharmacy, for example. We heard it from many, many people in relation to this issue about whether or not they are health care professionals. I guess from there again there are points where we come up with differences of opinion.

Mr McGuinty: I just wanted to make a point about the non-traditional pharmacies, because I think the impact the ban will have on them is more significant, stores like Zellers, K mart, A&P, Woolco, Loblaws, whoever else out there. My notes show there are 160 of these in the province now.

In terms of just their prescription fees, many of these actually use those kinds of fees as loss leaders. They're charging very little. Some of them charge nothing, the idea being of course to get them into the store and get them to spend money on other items. There are 183 full-time pharmacists, 199 part-time pharmacists, and then there are pharmacy assistants, who've received special training, 69 full-time and 192 part-time.

Now, if you're running Zellers or Loblaws, I think the decision at the end of the day is going to be that you're going to have to get rid of the pharmacy -- you're not making any money on that anyway -- and stick to the cigarette sales.

That means those pharmacists, close to 400 pharmacists when you combine full-time and part-time, and those 260 pharmacy assistants are going to be out of work. They will not be re-employed within their employers' operations at the present time because they're getting rid of the pharmacy operation completely. Those people are going to be put out of work, and there's no two ways about that, there's no way of softening the blow. They're out.

We had a young fellow here, I can recall. I asked what he's going to do. He said he didn't know what he was going to do. He had two kids, his wife wasn't working, and he had no option, unless pharmacists are going to expand for some reason in this province and pick up those 400 who are going to be put out of work out of non-traditional pharmacies.

This is going to spell hard times for them, and I just don't see any answer for that other than, if you're set to ban tobacco sales in pharmacies, to string it out a little bit, to extend the period of time over which the ban is going to take place so they'll have time to adjust and look elsewhere.

The Vice-Chair: No other comments? The committee has before it a motion moved by Mr Wilson to amend subsection 4(3). All in favour? Opposed? Motion lost.

Next is a Liberal motion to amend subsection 4(3).

Mr McGuinty: I move that subsection 4(3) of the bill be struck out and the following substituted:

"Temporary exception

"(3) Subsection (1) does not apply with respect to the designated places described in paragraphs 8 and 9 of subsection (2) until the second anniversary of the day this section comes into force."

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Briefly put, we've been discussing this now at length. The Conservative motion provided for a three-year delay until the pharmacy ban kicked in. The Liberal motion provides for a two-year period before the ban takes effect. For the same arguments I've already made and put on the record, I think it's appropriate that we extend the period of time to allow for adjustment by those who are going to be affected by this decision.

Mrs O'Neill: I think this is certainly worthy of very serious consideration and then support. The people who are most affected by this have had the opportunity as well of, and we saw that they had been, watching these hearings with a great deal of diligence.

In some cases the pharmacists who have already made the transition gave some very constructive ideas, and this particular amendment that we bring forward gives people that opportunity to think that over seriously, perhaps to seek some advice from those who presented and then to do what the bill will request that they do. But this just gives people flexibility. It accepts reality that we are in a very difficult time, that people downsizing, becoming unemployed is far more frequent than we wish it were. We just feel that two years gives a lot more time for people to explore their alternatives and to protect their employees.

Mr Sterling: In spite of the lack of Liberal support for Mr Wilson's amendment, Mr Wilson and I will support a two-year phase-in for all the reasons Mr Wilson outlined for a three-year phase-in.

The Vice-Chair: We have a motion moved by Mr McGuinty to amend subsection 4(3). All members in favour of the amendment? All opposed? The amendment is lost.

The next is a government motion to amend subsection 4(3).

Mr O'Connor: I move that subsection 4(3) of the bill be amended by striking out "the first anniversary of the day this section comes into force" in the last three lines and substituting "December 31, 1994."

This is for all the reasons I've pointed out previously and for all those compelling arguments that were made before this committee by the many deputations.

Mr McGuinty: I can't think of any other way of describing it than to say the government is pulling a fast one here. It put forward legislation, Bill 119. We had presentations made throughout the province and we're talking about an issue here that, if we didn't know before, we certainly learned during the course of the hearings is a very controversial area.

Again, I maintain that the best approach, if I was bent upon the ban in the way the government is, would be to do nothing but to keep the term that had been originally provided for, which is one year to adjust. But to reduce it to the end of this year, we may be looking at six months. I think it's unfair of the government to do that.

It doesn't allow time for those people who would be affected to comment on the shortened period. We were talking about the game here, the rules of the game where it was going to be until the first anniversary of the day it comes into force, which would have taken it, who knows, maybe till June 1995. I think it's just unfair, and the government shouldn't have moved this motion. It should have left it, at worst, the way it was.

Mr Sterling: I don't understand the government. This is like rubbing salt into the wound. Why are you doing this? In the legislation now you're going to give the pharmacies a year to adjust from the date when this bill is proclaimed. Now you're going to give them, I don't know, seven or eight months, six months, whatever, whenever this legislation is proclaimed. I don't understand you. This is like saying to the pharmacies that are relying on the sale of tobacco to support their business, "We beat you down and now we're going to kick you."

Why are you doing this? What is the necessity? Once the public statement has been said that pharmacies are no longer going to sell tobacco, once you've done that, why not be more than reasonable in giving those pharmacies that have to readjust time to readjust? Instead, what you're saying here is, "We're going to get tougher and we're not only going to kick you, but we're going to kick you when you're down." This is craziness.

Why are you doing this? Maybe the parliamentary assistant would say. What's the necessity of this? Most people who appeared in front of this committee, even the people who proposed that pharmacies not sell tobacco, admitted that the effect of pharmacies not selling to the public was going to have none or near none in terms of effect on the consumption of tobacco in this province.

All you're doing here is acting like the big, tough government that doesn't care about the small business owner or the jobs that are related to this. This is a heck of a nice Christmas present for the people who are going to lose their jobs on December 31 because the revenue of that pharmacy has fallen off.

Why don't you carry these people at least through the winter? The nice part about a year from May or June, when this would be proclaimed, is it at least would carry those jobs that are going to be lost because of this loss of revenue until that time. I don't understand you. Why do you want to take it from a year to seven or eight months, Mr Parliamentary Assistant?

Mr O'Connor: I appreciate the opportunity to comment. We heard, as I said, from people as we travelled, for example, to Thunder Bay, from Tobacco-Free Thunder Bay. We heard from people like Dean's Pharmacy when we were in Sudbury, who drove all the way from North Bay, that this time should be reduced. He, as a pharmacist from Dean's Pharmacy, had said to us that we don't need a longer time, it should be shortened.

In fact the number of people who came forward to us and said that it should be only 90 days after royal assent has been received was a huge number of people. At the same time we heard from people, for example, around the vending machine issue that they needed some more time, for folks who were involved in that type of small business whose only product could be that tobacco product. When we saw the federal government went with a total ban on vending machines throughout most of the province, these types of considerations all need to come into play, so you'll note as we get into the debate a little bit further that we're moving to December 31 for them as well.

It's a clear date. It's something that they can work around while the legislation is working its way through the process to get to the Legislature for third reading debate. They'll have a date, they'll have something that's there, it's not going to be a date that could be held out there and they don't really know what the date is. The date would be December 31 and they'll know. So for the people like the Ontario Public Health Association that came to the committee suggesting 90 days, we're saying no, that's a bit too short. I think that people have to have a day so that they've got something to plan towards.

Mrs O'Neill: I just take a bit of exception to Mr O'Connor's statement that huge numbers came before us suggesting that we shorten the time. I think my memory is pretty good and it's likely about six, if that, who came before us. I don't consider that a huge number.

But that being said, we're putting a date in a piece of legislation. We don't have the legislative agenda at the moment, and, if I remember very correctly, in December 1993, which is not that long ago, there were many bills that just didn't come to pass. We don't know whether this bill is going to be passed.

We have no idea how this government is ordering its business, but of course, it's nothing new because this government has not been the least bit hesitant to pass legislation that is retroactive. So perhaps that's what this date will eventually mean, that it will be retroactive. To have that kind of precedent that has been set and reset by this government, that we will set dates even if bills aren't proclaimed, in my mind is a very bad precedent and it's very bad government.

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Mr O'Connor: I certainly appreciate that, but I do believe that this is a priority I don't think just for the government but for the opposition members as well who have spent a considerable amount of time here. This is a priority. It's something that I think all committee members certainly will want to make sure gets on the agenda and that it gets passed. So I don't think that the date is too unreasonable given the numerous people who did make presentations to us suggesting that there be a shortened time frame, many of them suggesting a 90-day time frame.

Mr Jim Wilson: The parliamentary assistant, in defence of the motion, speaks of presenters who asked us to consider a shorter time frame than the one year from proclamation that was contained in the original bill. I don't have the transcripts in front of me, but it strikes me that, when you think of most of those pharmacists, a lot of those you're quoting had already stopped selling tobacco products in their stores, but they did so in the late 1980s, when we were absolutely in booming economic times. They did not have economic loss because they told us that they were able to bring in new products and adjust over a period of time.

You're in a recession, Mr Parliamentary Assistant, a very, very serious recession, and to shorten the adjustment time for these retailers is really adding insult to injury. It doesn't make any sense to us whatsoever. In fact, to me as Health critic, it plays into what former Deputy Minister of Health Michael Decter used to say, and that is that there are too many pharmacies in the province.

With a shorter period here, you raise your likelihood of losing a few more pharmacies, driving them out of business because they won't be able to adjust. I think we were told in very clear terms by some of the nontraditional pharmacies like A&P that they will close their pharmacies if it's a toss-up between the cigarette counter at the front and the pharmacy at the back of a store.

It just doesn't make any sense at all from a perspective that you must take into consideration and that the government isn't taking into consideration, and that's putting yourself in the shoes of these retailers; you're unilaterally telling them they can't sell a legal product. They need time to adjust. They need more time, not less time, during a downturn in our economy, during this very severe recession.

You don't have the right to bury your head in the sand and ignore the pleas of the people who came before us and made good commonsense arguments. These are people who are actually retailers, creating the jobs in our province. They know of what they speak.

Your government just totally ignores those pleas, as if business people don't know how to run business and you guys know how to run it better. Well, you don't, and the proof is that there are thousands and thousands of people being laid off in this province every day because you people don't know what you're doing.

Now in the name of health care you're going to lay off a few more people in the province, and you won't even take a reasonable approach to try and minimize the job-loss effect. It just defies any type of humanity, of humane treatment for the people of this province. It's downright disgusting, that's what it is.

Mr O'Connor: I guess this is where we get into a little bit of political rhetoric. If you want to talk about this recession, brought on by a government in Ottawa that knew exactly what it was like to do business and rammed through free trade and cost hundreds of thousands of jobs; if we see the Tory government in Ottawa that said we had to go with an extended period of time of high interest rates, of a very high dollar, artificially inflated, that it was really good for business; if that's the way that this goes about, I guess we've got a problem here.

The fact is, and you will recall, we had presentations come to this committee by pharmacists who had, as we were going into this Tory-created recession, made the decision to get out of tobacco sales. Now, as all the indicators are stating we are coming out of this recession, after listening to people suggesting that the time frame should be limited, I think it comes time where -- as the college has said, it has been trying for years to get pharmacies to break themselves of the habit of selling tobacco products. Now the arguments have been made and now we have something before us. I guess this is, again, where we come up with these philosophical differences of opinion.

Mrs Caplan: I'm not going to engage in the rhetoric. I think a lot of very sensible points have been made, rhetoric aside. I am concerned about how important it is when drafting legislation that people who are affected by the legislation have some certainty and have time for adjustment.

It seems to me that the legislation, when it was tabled, said there would be a period of time following proclamation. I prefer having a time line that follows proclamation or a time line which is established when the bill is tabled. If you're going to have a set date, then you do it when the bill is initially tabled and you can anticipate into the future a couple of years, which will allow time for the legislative process.

The concern I have is that I think it's very unfair to change the rules at the end of the process as far as the time is concerned. I think you would do better, both in the acceptance of the legislation and the implementation of the legislation, if you stayed with the original time line you have in the bill, simply because that was the expectation that was there. I think the person who spoke to this most eloquently was your own member Ms Haslam when she said, "You tell people when it's coming, and that's the time and the time line that they are required to adjust to."

I thought my colleague from Ottawa-Rideau, Mrs O'Neill, laid out the case extremely well, so I'm not going to get into all of the details that Mrs O'Neill has stated, but I do think there's an issue of fairness. If you tell people something's going to happen at a certain point in time when you table your legislation, that's a reasonable expectation. When at the end of the legislative process you come in, because some people came to the committee and said, "You could do this faster" -- you might well have had a very different response as people came forward if they knew that your time line was December 1994. You didn't hear from anyone on that, because that wasn't in the legislation.

I think in the name of fairness that you should withdraw this amendment and go with your year from the date of proclamation, because I believe in the integrity of the legislative process. Time lines should be the ones that are established at the beginning of the legislative process. I very much object to retroactive legislation, but I think that in fairness to both the people who have come to the committee and those who will be affected by this legislation, you should go with what you initially announced when this legislation was tabled.

Mr O'Connor: I appreciate that opinion. The fact is that we also heard, for example, from vendors who sell this product through vending machines. When a similar piece of legislation was enacted in Ottawa by the federal Conservative government of the day, it put in a total ban from the day of proclamation of the vending machine element.

We heard from people who came to this committee suggesting that the time frame isn't fair because quite often that is the only product they have and we'll come to a point where we're going to put an amendment forward that will recognize that they have a hardship as well.

I think that by putting a consistent date, December 31, 1994, it responds to some of the presentations to the committee and I think it's a date that is reasonable. I appreciate hearing your views.

Mr Jim Wilson: I just simply want to say that it's a sad day in Ontario politics that when you go to defend those who might lose their jobs, when you point to studies showing job losses, when you talk about the downsides of a piece of legislation, that somehow this is rhetorical.

I'd ask people to look in the dictionary as to what the word "rhetoric" means. To point out facts in a debate that were presented to us in good faith by the people of this province is not rhetoric, and I would ask members to keep that in mind when they're representing their constituents and the people of this province.

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Mrs Caplan: Just as a last comment, I think the parliamentary assistant has missed the point that I was trying to make. It seems to me, if I remember correctly, that the legislation that went through the federal House, from the day that it was tabled for first reading, said that it would become valid upon proclamation. They didn't change the date at the end of the process.

It seems to me that if you're going to do anything through the legislative process, you would extend the date in response to what you hear. But it is inherently unfair, after you've gone through a legislative process, to change the date by shortening it. The expectation that you raise at the time you announce your intention of legislation and table it for first reading I think establishes an expectation of what people rightly can expect the government is going to do.

It seems to me that if you're going to be sensitive to their need to have some certainty, then the time line is either established at first reading or, if you find that you're going to do anything, you extend it. It is tremendously unfair, and it's in the name of that fairness as well as acceptance of what you're doing that I'm suggesting the time lines should be those which were established at the time of first reading.

To point to another level of government or to point to somebody else and the way they've done things in defence of how you're doing it I think misses the point entirely. It really is looking at what's reasonable, what's fair and what's going to respond to the kind of expectation that you yourself have raised around the integrity of the legislative process.

Mr O'Connor: To respond quite directly to that, because this process happened about the same time as the federal process was taking place, we have to take a look at that. In that process that the federal government was going through around its tobacco control act, they had suggested that the date of implementation would be July 1. The Conservative government was convinced that would be a good time for proclamation, and so people knew that would be a reasonable sense.

But in the element of fairness, the Liberal government of the day decided it would move that forward quite a bit. I guess what isn't sure is when things can be proclaimed. The Liberal government proclaimed it much quicker, so for all those people with vending machines who were affected immediately instead of July 1 as they had thought would happen, there needs to be an element of fairness. I agree with you: There needs to be an element of fairness. I think December 31 is one way we can have that element of fairness you talk about.

Mr Sterling: I'm glad there's some recognition that the former federal Conservative government was acknowledged by the health community and by the people who are against tobacco as leaders in the world in terms of dealing with this issue. They talk about Jake Epp and they talk about some of the other federal Health ministers who took steps no other government in the world has in dealing with tobacco issues. They'll freely admit that to you, and I'm glad the parliamentary assistant is recognizing their leadership in that role.

The banning of the vending machines in the federal legislation isn't a banning of vending machines; it's a control of vending machines to certain kinds of premises. For the parliamentary assistant to compare this particular act with what the federal government had done is really not a fair comparison at all. One has nothing to do with the other.

In fact, the federal government has dealt with vending machines in a more reasonable fashion than we have here. They have said that where they are controlled, you can still have vending machines. What we heard from the vending machine owners here, at least what I was interpreting from their submission, Mr O'Connor, was that they would live within the federal legislation and would accept that as a reasonable restriction on their business. But the Ontario government has said, "We're going to put you out of business." That's what has really happened here.

I have a constructive suggestion for you, Mr O'Connor. If you want consistency, if consistency is your argument, let's give vending machine owners a year from proclamation, as you already have in this act. Let's go to the longer period rather than the shorter period, to give not only pharmacies but vending machine owners the ability to readjust, so they can sell their stock in other jurisdictions which still permit them.

If it's just a question of consistency, we're dealing with two bodies: first, pharmacies, of which there are not that many in this province, and we'll know what date this is proclaimed and there will be no problem with them recognizing it's either June 3 or May 28 or June 15; and the very small number of vending machine owners will also be well informed about this date. Your argument about who will know what date it is I don't think holds water, because we're dealing with a very small number of Ontarians in terms of knowing the date this will affect them.

Why don't you accept my constructive suggestion and keep both these dates so that the jobs in the pharmacies can be maintained and the jobs associated with the vending industry can be maintained as well?

I was really struck by the people who have their money in the vending machine industry. These are honest, hardworking, small business people. I don't like what they're doing. I don't like tobacco and I don't like the effects of tobacco, but they are taking a legal product and they are selling it through a legal means. We are saying to them: "No. That's the end of your business, mister. It doesn't matter if you've invested your life savings, mortgaged your house, to buy these machines. That's the end of your business."

I have more concern about them than I do the pharmacies, because the pharmacies have other matters to turn to. For the vending machine people, this is their livelihood. Your argument for bringing only the pharmacies to December 31 to give them time to readjust is not one that holds much water, and therefore I urge you to give both of these groups of people, who are going to have significant readjustments, a year from proclamation date.

Mr O'Connor: I really appreciate my colleague giving some constructive suggestions. In terms of the what he said about the federal act, I didn't say I thought it was a very courageous step forward. Their legislation dealing with prohibition of advertising, which I thought was good -- and then the Jake Epp amendment allowed du Maurier to advertise the jazz festival. It's not cigarettes, but it looks like a cigarette package; it's the same colour.

I'm not saying the federal government's legislation was the best piece. I'm just saying you have to take a look at it. The federal Tory government had suggested that vending machine bans could take place immediately, but had talked so the community out there knew they meant, let's say, July 1. The Liberal government, after the election, decided to move that forward. They decided they were going to sell out to the Liberals in Quebec and drop the taxes, which forced us into an untenable situation that I don't think we need to get into, but I think that's a problem.

What we're talking about here is some reasonableness, and December 31 allows for a little reasonableness in this. For you to quote me and say that I thought the federal piece of legislation was the best piece of legislation -- any time we can move forward on this product that every year prematurely kills 40,000 Canadians and 13,000 Ontarians, a step forward by any level of government is a good step. What we've done here is put in a sense of fairness and balance, and we've put in a date people can see. It's something that's written down. It's not "whenever" or "maybe." It's a date that's written down so the people have something they can plan towards.

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The Vice-Chair: You've heard Mr O'Connor's motion to amend subsection 4(3). All in favour? Opposed? The motion is carried.

Section 4, as amended.

Mr Sterling: No. Mr Chairman, I asked that we go through section 4 subsection by subsection, by number, and have recorded votes on this.

The Vice-Chair: There's a suggestion by Mr Sterling that the committee deal with section 4 subsection by subsection, with a recorded vote. Does the committee agree to that procedure? Agreed.

Mrs O'Neill: And Mr Chairman, as we go through this, please remind us of the areas that have been amended.

The Vice-Chair: Subsection 4(1): All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo, Sterling, Wilson (Simcoe West).

The Vice-Chair: Opposed? None. That's carried.

In subsection (2) you want each of the paragraphs done, is that correct?

Mr Jim Wilson: Yes.

The Vice-Chair: The clerk is clear. I'm not.

All in favour of paragraph 4(2)1?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo, Sterling, Wilson (Simcoe West).

The Vice-Chair: Opposed? None again. That's carried.

Mr Sterling: On a point of order, Mr Chairman: Could you read the subsections as we are voting on them so people who are watching understand what we're doing?

The Vice-Chair: Then we're to paragraph 4(2)2, "A private hospital as defined in the Private Hospitals Act."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo, Sterling, Wilson (Simcoe West).

Mr Sterling: Mr Chairman, I want to make certain it's understood that we're voting on sections that ban certain facilities from selling cigarettes, that we're naming those particular places where you can no longer sell cigarettes.

The Vice-Chair: In other words, "No persons shall sell tobacco in the following designated places."

Mr Sterling: Yes. We voted for two where we've banned it, and we've agreed unanimously to ban that.

The Vice-Chair: Thank you. Paragraph 4(2)3, as amended, says, "A psychiatric facility as defined in the Mental Health Act, except, in the case of a facility that is designated under the Mental Hospitals Act, a part of the facility where the sale of tobacco is authorized by the regulations."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Opposed?

Nays

McGuinty, Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 4(2)4, "A nursing home as defined in the Nursing Homes Act."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Opposed?

Nays

Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 4(2)5, "A home for special care under the Homes for Special Care Act."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Opposed?

Nays

Sterling, Wilson (Simcoe West).

The Vice-Chair: Motion carried.

Paragraph 4(2)6, "A charitable institution as defined in the Charitable Institutions Act."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Opposed?

Nays

Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 4(2)7, "A home as defined in the Homes for the Aged and Rest Homes Act."

All in favour?

Ayes

Abel, Carter, Frankford, Haslam, O'Connor, Rizzo.

The Vice-Chair: Opposed?

Nays

Caplan, O'Neill (Ottawa-Rideau), McGuinty, Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 4(2)8, as amended, reads, "A pharmacy as defined in the Drug and Pharmacies Regulation Act."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, O'Connor, O'Neill (Ottawa-Rideau), Rizzo, Sterling.

The Vice-Chair: Opposed?

Nays

McGuinty, Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 4(2)9, which has been amended to read, "An establishment where goods or services are sold or offered for sale to the public, if,

"i. a pharmacy as defined in the Drug and Pharmacies Regulation Act is located within the establishment, or

"ii. customers of such a pharmacy can pass into the establishment directly or by the use of a corridor or area used exclusively to connect the pharmacy with the establishment."

All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, O'Connor, Rizzo, Sterling.

The Vice-Chair: Opposed?

Nays

McGuinty, O'Neill (Ottawa-Rideau) Wilson (Simcoe West).

The Vice-Chair: Carried.

Paragraph 10, which has been amended to read, "A place that belongs to a prescribed class." All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo.

The Vice-Chair: Opposed?

Nays

Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

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We move on to subsection 4(3), which has been amended to read, "Subsection (1) does not apply with respect to the designated places described in paragraphs 8 and 9 of subsection (2) until December 31, 1994." All in favour?

Ayes

Abel, Carter, Frankford, Haslam, O'Connor, Rizzo.

Mrs Caplan: I'm sorry. I did not want to support that amendment. Can you take the vote again? Is this not the change of date?

The Vice-Chair: Yes, it is.

Mr Abel: He didn't call your name.

The Vice-Chair: We haven't got there yet. Opposed?

Nays

Caplan, McGuinty, O'Neill (Ottawa-Rideau), Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

Shall section 4, as amended, carry? All in favour?

Ayes

Abel, Caplan, Carter, Frankford, Haslam, McGuinty, O'Connor, O'Neill (Ottawa-Rideau), Rizzo, Sterling.

The Vice-Chair: Opposed?

Nays

Wilson (Simcoe West).

The Vice-Chair: Carried.

Now we have a PC motion to amend section 5.

Mrs O'Neill: On a point of order, Mr Chair: I don't know how in parliamentary procedure we can take that last vote when we voted on each, broke it out. How can we vote on it as amended? We're really nullifying several of our own votes.

Mr Jim Wilson: That's why I was consistent, Mr Chair.

Mrs O'Neill: I don't think that last vote should have been taken.

The Vice-Chair: Good point. Perhaps that's correct.

Mr Sterling: What does the clerk have to say about this? Do we vote or don't we need a vote?

The Vice-Chair: I think it's in order, personally. I realize my career is at stake.

Mr Jim Wilson: Ron, this isn't county council.

The Vice-Chair: We would certainly vote on the overall report regardless of the number of amendments that were voted on.

Mr Sterling: Is it necessary to have the vote? That's the question.

The Vice-Chair: I will seek professional advice, if I may. The answer is yes, the vote is required, but I understand your view.

Mrs Caplan: Does this mean you get a promotion to permanent Chair?

The Vice-Chair: Nothing is permanent, I have found.

Mrs Caplan: You got it: Nothing's permanent. That's the right answer.

The Vice-Chair: Can we rush on to section 5 at this point, a PC motion to amend section 5? Is there a motion in that regard?

Mr Sterling: Yes. I move that section 5 of the bill be struck out and the following substituted:

"Packaging requirements

"5. No person shall sell or offer to sell tobacco at retail or for subsequent sale at retail or distribute or offer to distribute it for that purpose unless the tobacco is contained in a package that,

"(a) bears no markings or words other than the marking or words required under federal legislation or under this act;

"(b) sets out the brand name of the tobacco in a standard script prescribed by regulation;

"(c) bears a health warning and other health information in accordance with the regulations;

"(d) is in a colour specified by regulation, and

"(e) complies with such other requirements as may be prescribed by regulation."

The present section 5 of the act ostensibly gives to the government the power to have tobacco packaged in some way in accordance with regulations. My concern about section 5 is that it holds out to those who want plain packaging, to the people who see that as detracting from the consumption of cigarettes -- there's some valid argument that plain packaging leads to less consumption of tobacco because it makes it less attractive -- the hope that this is going to take place.

My amendment really takes it the next step forward in that it specifies clearly to the tobacco industry what is about to happen to them in terms of packaging. I think it also would cut down the legal challenge the tobacco industry might have should it be faced with a regulation made by the provincial government at some time in the future.

I'm concerned that we have experienced by the tobacco industry in the past a tremendous resistance to legislators who want to take progressive steps to get rid of this deadly addiction we have in our society. You may remember back in the 1960s and 1970s when there was the health argument about whether tobacco did or did not cause a health detriment to our population. The tobacco lobby took great steps, threw great amounts of money at the whole notion of the mounting evidence which was there for people to view. Finally, it caved in, as we saw the US Surgeon General in the early 1980s start to take a harder and harder stand on this.

If this government or a future government took the step of going to plain packaging strictly by regulation, my concern is that in front of a court the tobacco industry might say: "This really wasn't clear in the legislation that the intent of the legislators was to have plain packaging. It was there to regulate what kind of warnings may be on the package." In other words, it might be able to say smoke is detrimental to your health, and that might have to be in blue or green or yellow and it might have to be this big or that small.

If my amendment is accepted, it will be clear to the courts that the power given to the government to regulate in this area is clear, that the government of the day has the right to say, "This package shall be one colour regardless of brand, and you're allowed to have your name on the top or on the side or wherever, and it's to be this big and in this script, and this warning has to be on it which is twice as big as the name, that this is bad for your health," if that is the choice as the government of the day.

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That is the reason I've proposed this amendment. I want us to have plain packaging in Ontario. I want us to go the next step which I believe is necessary, because notwithstanding our previous leadership in this issue, I might say by a number of governments in Canada, we have not yet attacked this particular aspect of it as aggressively as I would have liked. Therefore I'm putting this amendment forward.

I might add that if you read section 23 of the act, this particular section comes into play when the government proclaims it. Again the government, as a cabinet, has the future ability to proclaim this particular section six months from today or can proclaim it five and a half years from today. That's what my understanding of the law is. In terms of readjustment by the tobacco industry to meet this kind of challenge, for them to be able to make their arguments, the government of the day will have that choice. I'm quite willing to give that choice to a New Democratic government or I'm quite willing to give that choice to a Liberal government or a Conservative government.

I do think it's time to move on to plain packaging, and I do not think the particular section contained in this bill is explicit enough. It may in fact lead to a long-drawn-out legal battle. We may have that regardless of the section we have in here because of the very, very high stakes involved in this issue, but I believe that by being more specific about what we're intending by this section, we will say to the courts, "Yes, we were contemplating plain packaging when this section was passed by the Ontario Legislature," and that's why I've put this amendment forward today.

Mr O'Connor: You've certainly given us very good arguments for the need for this area of the legislation to be amended, and I appreciate that. Much of what you said I must say I agree with.

The problem I have is that many parts of this refer to the regulations, and section 18 of the bill deals with the regulations portion of it. Perhaps it would be better if we have a chance to look at this in more detail, and maybe a more appropriate place for us to put this would be in section 18. I appreciate the arguments you've given us. Perhaps we can bring forward an amendment to section 18 that would be more appropriate because that's where we deal with the regulation on many of the packaging elements you have put forward in your amendment, and I appreciate that.

Mr Sterling: This amendment is fairly fresh and new, and perhaps the government caucus members need some time to digest this. You will note, Mr O'Connor, that there are also companion amendments to section 18 which marry with section 5 that I have proposed.

While I take your argument as some kind of notice in terms of trying to deal with it in that section, I don't think that would be appropriate. I would be quite willing to stand this down until perhaps tomorrow's hearings or some future time before we deal with section 5, if that's the desire of other members of this committee, so that Mr O'Connor can talk with the Minister of Health or other people in his government about the acceptability of the amendment.

The Vice-Chair: Mr Sterling has suggested that his motion to amend section 5 of the bill be stood down at this time. Is that agreeable to the committee?

Mr O'Connor: That's a very reasonable request, in light of the work he has done on this and given that we've only received this amendment today. I appreciate you giving us some time to take a look at all the amendments you've given us and see how this could fit into something later on in the bill.

The Vice-Chair: Is it agreed to stand down the amendment? Agreed.

Mr Sterling: Mr Chairman, would this be a good time to adjourn for the day? I would be amenable to that kind of motion. We have three days of sittings.

Mrs Haslam: Actually, we've got about 20 minutes.

The Vice-Chair: We have two more amendments on this section.

Mrs Haslam: Yes, but there's only section 6 left before everybody starts in on section 7. I'm wondering if we could finish up at least another one before we go.

The Vice-Chair: Is it agreed that we continue to approximately 5 o'clock? We will proceed.

The next motion is a government motion to amend clause 5(b).

Mr O'Connor: In light of the motion to stand down section 5, we can deal with that tomorrow, Mr Chair. Section 6 would probably be more appropriate for me to move at this point.

Mrs Haslam: Mr Chair, that was what I meant by my suggestion. I thought you were standing down all of section 5, not just Mr Sterling's amendment.

The Vice-Chair: Is it agreed that the government motion to amend clause 5(b) be stood down as well? Agreed.

Mrs Haslam: There's also a Liberal motion on section 5.

Mr McGuinty: I don't see why we couldn't deal with mine. It's not mutually exclusive from Mr Sterling's motion.

Mrs Haslam: Then I don't see any reason we can't go ahead and do the government motion too.

The Vice-Chair: Mr O'Connor has asked that his motion be stood down. What is your wish regarding the Liberal motion to amend section 5 at this time, Mr McGuinty?

Mr McGuinty: I prefer to deal with it now.

Mr O'Connor: That being the case, Mr Chair, I'd respectfully request that we then deal with the government motion.

Mrs O'Neill: It's our prerogative to change our minds.

The Vice-Chair: Mr McGuinty, would you move that we delay your motion?

Mr McGuinty: By all means.

The Vice-Chair: Mr O'Connor, would you proceed?

Mr Sterling: Just a matter of order here. If perchance the committee accepted my amendment, the government motion would be redundant. I presume the Liberal motion would be redundant as well.

Mrs O'Neill: No, it's got nothing to do with it. Have you read it, Mr Sterling?

The Vice-Chair: It's a different matter.

Mr Sterling: Yes, that is a different matter. I'm sorry.

Mr Jim Wilson: Let's not be stubborn. Let's just do the commonsense Liberal motion and forget about the government motion.

The Vice-Chair: Mr O'Connor, what would you like to do?

Mr O'Connor: I'll move clause 5(b), if that's the wish of the committee.

I move that clause 5(b) of the bill be amended by striking out "health" in the second line.

You'll note that the word "health" appears in the same sentence twice and doesn't need to be put in where it is. That's fairly clear.

Mrs O'Neill: I find this a very strange amendment on the part of the government. A health warning and health information are two very different things. A health warning indicates that we have some real difficulty with this product regarding health. Health information has to do with people who have certain conditions, usually, not conditions that everyone in the community has. Why would a government want to only confuse the issue? A warning is a health warning. This is a health issue. I can't believe you'd present this. I've listened, for four weeks, to members on the opposite side of this table talking about health issues, and now you want to take the word out? Holy, man.

Mr O'Connor: The importance here is that yes, this is a health issue and the health warning needs to be laid out quite clearly. We don't want to put ourselves into a position where we can only put health information on the package. There may come a time when we'd like to put on, for example, ingredients. Somebody suggested that the pages of ingredients be put on there. If that isn't considered health information, we could probably say that it doesn't belong on there.

1640

Mrs O'Neill: We're not talking the same point at all.

Mr O'Connor: It's pretty clear that we've talked about the health issues, we've got the health warning element to be put on there, and we want to be able to have the ability --

Mrs O'Neill: But you're taking the word out.

Mr O'Connor: We want to have the ability to have other information contained on the package as we would require through regulation and not limit ourselves only to health.

Mrs O'Neill: Health should be emphasized in this bill over and over. Why you would want to remove such an important word from the key area that everybody said was key, the packaging -- I can't believe it. I'm just incredulous. It just doesn't make any sense.

Mr O'Connor: Let's say, for example, that the government was to move forward with a suggestion that there be a 1-800-QUIT line on the packages, something that's going to help people who are addicted to this deadly habit quit. We could have the case argued that that isn't health information, but is just information.

The key here is not to take away from the health element of it. Clearly, this is a very important health issue and we could be denying people some very valuable health information if we were to take that out of there. This was suggested and the point was made quite clearly by the lung association from Middlesex. We heard from the Etobicoke board of health as well suggesting that there should be other information put on and we shouldn't limit ourselves and box ourselves in so tightly that, if we're going to offer cessation programs down the way --

Mrs O'Neill: But that's health information.

Mr O'Connor: -- that we can't put that in there because we are limiting ourselves.

Mrs O'Neill: Well, your descriptions of things really are not the ones I've been used to.

Mr O'Connor: Mr Chair, to clarify this, because maybe the arguments I've put forward aren't clear enough, I would ask legal counsel if they could comment.

Mr Williams: Further to what the parliamentary assistant has said, when we went to legislative counsel to draft this section and discussed the various types of information we might want to put on packages, we were told that "health information" is very narrow in scope and that if we wanted information in addition to health information we'd be better off just using the word "information," which is much broader. Certainly there's no intention not to put health warnings on, but we want to make sure we could put other pieces of information that might not fit into the definition of health information on the package as well.

Mr O'Connor: We even heard from students, for example, who suggested that smoking turns your teeth yellow and makes your breath smell. That wouldn't be a health warning.

Mrs O'Neill: I'm not sure.

Mr Jim Wilson: I'm not sure either. I don't agree with counsel at all. We got into this problem, Mr O'Connor, because you tried to throw the redundancy argument past us, that it was redundant to have "health" showing up twice in the same sentence. Obviously, we didn't buy that; Mrs O'Neill correctly didn't buy that and challenged you. Now we've got into all the other warnings you want to put on these packages. I'd like to see "Socialism kills" on the package, but I don't think --

Interjection.

Mr Jim Wilson: You guys have done some pretty crazy things. You've got the keys to the chauffeur-driven cars now.

Interjections.

Mr Jim Wilson: I'm quite serious. Look at your own labour laws and other things you've done. I would not give you -- if we can do anything about it, and I guess our vote is the only way to do anything about it in this committee -- the licence to expand beyond health warnings. I think the redundancy was there intentionally in the first drafting of the bill and the word "health" should remain. You've got a hidden agenda on this. I don't trust your government at all, to write you a blank cheque to put whatever you want on cigarette packages. You stick to "health." That's the reason you're driving the pharmacies out, in the name of health, and you stick to it consistently throughout this bill.

I don't agree with counsel who says you can't somehow convince somebody that a 1-800 health line is not a health matter. Where there's a will there's a way, and you can get the warnings you want on these packages under the definition of health. After all, the World Health Organization defines health very broadly, in fact in economic terms, that the best thing you can do for your country and your province is to have a strong export market and a strong economy. That is the definition of health that is used in the world today. It encompasses just about everything you've mentioned, Mr O'Connor, and I don't want you venturing outside that very broad definition of health.

Mr O'Connor: Again, there are some things we disagree about, for example, when we talk about Mr Jake Epp's amendment to the Tobacco Products Control Act that said a promotion isn't advertising. There are going to be times we disagree.

The key here is that if somebody is going to challenge us on whether we can put on a 1-800 line, as an example -- I know there are other governments that would like to have things challenged and maybe make things redundant. We're trying to make this as encompassing as we can so we can put in things that are going to save people's lives.

Mrs Haslam: I thought perhaps we were taking out the aspect of warning. My concern would be around a challenge to what exactly health information was, if we leave it in; if there was something we wanted to put on and they said, "That hasn't been proved to be a health effect of smoking." Let's say we came across something we wanted to put on that said, "Smoking affects the foetus." Would they make us prove that in a strictly health way? But my concern was something else --

Interjections.

Mrs Haslam: Gee, I love these cross-table conversations. They're just wonderful.

The Vice-Chair: Ms Haslam has the floor.

Mrs Haslam: My concern would be that type of information. I would like clarification again about the type of information you're talking about. To my way of thinking, it must be about smoking, it must be about the health aspects of smoking. What were the concerns raised by the lawyers drafting this?

Mr Williams: I can't answer what types of things would be on the package. The program area could better answer that. I can't speak for the present legislative counsel, because she's not the person I spoke to, but when we approached legislative counsel about other kinds of information that I wouldn't have called strictly health information, we were told that if we wanted to pass a regulation that would prescribe forms of information other than what you'd call health information, that wouldn't be broad enough. I don't know if legislative counsel's got any comment. It would be helpful if either the parliamentary assistant or Brenda could outline some of the things we were thinking of putting on a package.

Mrs Haslam: I would like to hear some of those things from legislative counsel. Legislative counsel had her light on; that's why I was watching her.

Ms Filion: The problem that was raised by counsel -- I wasn't part of those discussions at the time, so I can only assume that the question was how we could avoid possible litigation surrounding the authority to make regulations in this area. I would assume the advice would have been at that time to put the language as broadly as possible, that if you remove the word "health" from that provision it would give as wide-sweeping regulation-making powers as possible.

Mrs Haslam: That they could fight over every type of warning we wanted to put on, including the contents of cigarettes, being not a health warning.

Ms Filion: An argument could be raised, yes.

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Mr McGuinty: One of the reasons my party has raised this is because if you look at the next government motion, it attempts to do the same thing. It adds "and other information" to the kinds of information that can be included on the signs that are to be posted in stores.

That's why it created a concern. It does give the impression that there's a hidden agenda here and that there's something that goes beyond health. If it's not related to health, I don't want it on the package, period. There's such a broad definition that could be attributable to "health," and I'm just very concerned about going beyond that which is necessary here. We're going after cigarette packaging because it's a health issue, period. I don't want to hear about anything else because I'm only concerned about the health aspect, and if it's not related to health I don't want it on there. That's why I don't see any reason to remove that qualifying word, which is very important, "health."

Mr O'Connor: If I can try to put in another practical piece of information, we heard from many people about ETS, for example, and we could come to arguments about whether ETS is a health issue. We on this committee have heard many very good arguments about that, for example, but that could be considered by some people as "other information." The committee members heard it was a health issue, but the industry could take exception and argue that that is not health information, that it's other information. In the tobacco industry, a great deal of denial takes place about whether its product will cause cancer, cause premature death.

I would hate to see us stranglehold ourselves by not allowing ourselves the ability to include something on ETS, for example, or something else, as medical evidence comes forward that may point out information, but maybe not pointed directly at health, and then could be argued through the court process. What we want to do here is put out the messaging as clearly as we can, and we may tie ourselves just a bit too tightly if we deal with just the health warnings.

Mrs O'Neill: It has been said earlier today in this room that legislation is living. It's about living people and it's going to affect lives. We're talking about something that may happen way off in the future.

There is so much data at the moment that supports connection, whether it be through secondhand smoke or smoking itself or the effect on the foetus, that is so relevant, and is available right in this library and that our research has brought forward to us on our request from time to time. We have all kinds of evidence that smoking is a health-related matter.

If we are considering smoking in any other light, if we're trying to change freedom of choice, if we're trying to interfere in either the retailing or manufacturing parts of the tobacco and cigarettes issue, the government should say that, but it hasn't said that. They're always talking, whether it's about pharmacies or whether it's about long-term care facilities: "It's a health issue. It's a health issue." I have heard that, I'm positive, it's a thousand times in Hansard.

Now, all of a sudden, there's something else that maybe some day in the year 2054 is going to change things, and there's going to be something beyond health that we want to put on these packages. Or maybe they know right today there's something they want to put on packages that isn't health. Maybe it's something about behaviour modification, but even behaviour modification can be sometimes stated as a health measure.

To be told by legislative counsel that they were trying to avoid litigation in this bill -- and that's what I heard, that that's the purpose of changing this -- and then to be told by the parliamentary assistant that the word "health" appears twice in one sentence -- that's not extraordinary, you know. I taught grammar at one time. I find the arguments preposterous, and I'm asking for a recorded vote on this amendment.

Mrs Haslam: As it is 5 o'clock and originally we had discussed setting aside all of section 5, could we do that now and return to this next day, start on section 5 at that time?

Mrs O'Neill: The parliamentary assistant said he wanted to get it done.

Mrs Haslam: I wanted to get as much done as possible, that we didn't knock off 20 minutes early today and then --

Mrs O'Neill: You want these arguments all over again tomorrow.

Mrs Haslam: We don't have time to address all the pieces, all the things in the --

Mr Jim Wilson: I agree. Agreed?

Mrs Haslam: Well, that's fine. I certainly will agree with you once in a while and cut you off in the middle of a sentence, Mr Wilson, because we sit over here time and time again and let you ramble on.

The Vice-Chair: Ms Haslam, complete your sentence.

Mrs Haslam: No. I've said my piece, thank you very much. Ask Mr Wilson to complete it for me. He knows what I'm going to say.

Mr O'Connor: To point to another example of a warning that could be put on there that may not be construed as a health warning, say it's that increased smoking would reduce your cardiovascular endurance. People could say that isn't a health warning, although maybe it would be in medical terms. Do we limit ourselves? My point is that we don't want to limit ourselves and hamstring ourselves to only issues that are health warnings. It could be argued by the tobacco industry that a 1-800 line, for example, isn't a health warning, isn't health information, that it's information that could lead to better health and might lead to longer life for many people, but maybe it isn't health. Why put ourselves in a situation where we end up with something struck down through the courts later down the road?

Mr Jim Wilson: Because you have to limit yourself. Your bias is to extend everything so that Big Brother can do absolutely everything you want in all the legislation. You already have a history of three years of asking for more regulatory authority than any other government in history in this province, and now you're doing it again. We try every once in a while as opposition members to get you to think about limiting yourselves to what you tell us is the intent of the act, to what you tell us is the reason you want to drive pharmacies out of business: for health reasons. You just can't have it one way in one part of the act and not be consistent throughout the act. You have to limit yourself.

And if you have a good health case for putting a health warning on, you're not going to have any problem under this act. You will have a problem if you start venturing in to put warnings that have nothing to do with the health of people as connected to cigarettes.

I think you should think about it and we should come back tomorrow. I agree with Ms Haslam that it would be a good idea to think about it. You're listening to the drafting people, and the drafting people aren't in our shoes; they're lawyers. They sit there and say, "If you really don't want to get in trouble in the year 2025, leave it absolutely open." That's a piece of advice you're given. You should take that advice, mull it over and say: "What's best? What's the intent of this act?" The intent of this act is to narrow in on health care issues.

Mr McGuinty: I'm ready to vote now on this one, Mr Chair. I'd be delighted to be able to deal with it.

The Vice-Chair: Any other speakers on this matter? If not, there was a motion moved by Mr O'Connor to amend clause 5(b). All in favour of that motion?

Ayes

Abel, Carter, Frankford, Haslam, O'Connor, Rizzo.

The Vice-Chair: Opposed?

Nays

McGuinty, O'Neill (Ottawa-Rideau), Sterling, Wilson (Simcoe West).

The Vice-Chair: Carried.

There was a Liberal amendment to the same clause, which we will deal with tomorrow. Thank you for your attendance and attention. It's been very exciting.

The committee adjourned at 1659.