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economist suntribune health issues thursday oct 31 2002 constitutional challenge delays york regions smoke police case by jeff mitchell staff writer a newmarket businessman who slammed a door on the regions smoke police may never know if hes guilty of obstructing justice frank findlays case was to go to trial tuesday but a justice of the peace ruled a constitu tional challenge of york regions antismoking bylaw must be heard first that challenge brought by wellknown toronto lawyer morris manning is to be con sidered in a newmarket court in february if the constitutional chal lenge is successful mr findlays obstruction charge as well as other charges laid under the bylaw could be thrown out justice of the peace karen walker adjourned mr findlays case until march saying she agreed with arguments that the obstruction case depends on the outcome of the challenge i think the jps decision speaks to the issue that mr mannings challenge is funda mental to this bylaw remaining in effect said brian patterson a forensic accountant who is act ing as mr findlays agent mark mcdonnell a lawyer for york region fought the adjournment arguing the bylaw remains enforceable until the constitutional challenge is heard in court the law is now valid it still is valid it has not been struck down mr mcdonnell said mr mcdonnell accused mr patterson of trying to ride the coattails of the constitutional argument launched by mr manning although the jp chided mr patterson for seeking adjourn ment on the day mr findlays trial was to proceed she ultimately agreed with his argument my granting the adjourn ment is based on the constitu tional issue ms walker said mr riopelle has joined a chorus of york region restaurant and pub operators who say the bylaw has severely affected profits mr findlay faces a charge of obstruction in connection with his refusal in august to allow a bylaw officer inside his timothy street office mr findlay had earlier been cited for smoking in his office after a neighbouring tenant complained to the region mr findlay said he complied with an officers instructions that he not smoke or keep ashtrays in the office he admits he refused the bylaw officer entry to his office by shutting the door in his face during a third visit because he believed the region had over stepped its authority although places of business are specifically listed as offlimits for tobacco use in the bylaw mr patterson questions its applica tion to mr findlays business arkhaven foinia since he is usually the only per son working in the office outside court mr findlay said he may join the constitu tional challenge although the case before the courts cites just one applicant newmarket restaurateur irv riopelle the costly fight is being bankrolled by numerous restau rant and pub owners in york region and beyond some of them face charges which have been adjourned until the case is heard mr riopelle faces numerous charges after he decided to flout the bylaw which restricts smok ing in his prospect street pub to 25 per cent of the occupiable floor space mr riopelle has joined a cho rus ofyork region restaurant and pub operators who say the bylaw has severely affected profits mr riopelles application challenges the authority of municipalities to pass and enforce bylaws on issues such as smoking and public health which he argues ought to fall under federal jurisdiction the application claims the bylaw goes beyond the regions legal authority it also argues municipal smoking bylaws allowed under the provincial municipal act infringe on the rights of individ uals as defined in the constitution the application is to come to court in newmarket on feb 21 but mr mcdonnell said tuesday it will be some time before actu al legal arguments are heard 8888 4hn mcbfrfmott date tfwsday november 7 201 irftwiriwfthifrt m kdsil5i5islv 1 00 pm dinner 830 pm entertainment j location crystal fountain banquei 60 mcdowell gate off 14thw west of kennedy road a dress business attire j 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