A unique rights battle is shaping up in Maple Ridge, as a family that fears for its safety because of second-hand smoke seeks to snuff out a neighbour's freedom to puff cigarettes on private property.
Citing the "very real health threat to our three children and the two special-needs people who live with us, as well as to ourselves," Wendell and Rena Krossa have written to the municipal council and provincial officials, asking for a municipal residential smoking ban.
In 2008, B.C. banned smoking in many public areas, including common areas of apartment buildings and condos, and put in place restrictions that include three-metre "buffer zones" in certain areas. But the law does not apply to individual units and balconies, and steers clear of attempts to regulate smoking in private residences.
The Krossas' single-family home in the 10,000-block Beecham Place is separated from their neighbours' by a gap of not much more than two metres in the area of the back patio, where the neighbouring couple generally smoke once or more daily, according to the Krossas.
They say "an awful lot" of cigarette smoke wafts into their home, and they can't bear to be continually rushing to shut their windows or leaving their own home while the air clears.
"It is a really distressing thing, because you never know when you have to run and shut the window," Rena Krossa said.
Above all, it is the "overwhelmingly proven dangerous threat to human health" posed by the neighbours' cigarette smoke that burns the Krossas.
Last summer, Wendell Krossa says, he politely asked his neighbours to mitigate the threat by smoking in their front yard. The neighbours at first agreed and that helped somewhat, but they have since returned to the backyard smoking, he says.
"I don't want to argue with people's right to smoke, but it doesn't include exposing other people against their choice," Wendell Krossa said.
He has informed his neighbour, Scott Urquhart, that he plans to publicly push for municipal or provincial legislation around a private residence smoking ban or safe buffer zone, as well as approach the B.C. Human Rights Tribunal and consider a civil court action.
Krossa says he has consulted an anti-smoking expert who suggests about 500,000 people in B.C. face similar problems with second-hand smoke, and his family is ready to lead the fight for others.
In an interview, Urquhart said he and his wife smoke outside because smoking indoors reduces real estate value, and they run a home business. The couple made efforts to smoke in the front yard until their dog - a companion on smoking outings - got into a conflict with a neighbouring dog, Urquhart said.
He added that he believes the Krossa family are overstating the case.
"[Wendell Krossa] makes it sound like we deliberately stand underneath his window and blow smoke into it," Urquhart said.
"Every time we let the dog out back, he's running around slamming the windows and having a Tourette's fit, cursing."
Urquhart said the Krossas can knock themselves out legally and talk to all the politicians they want, but he believes their efforts will be in vain.
"We've already spoken to city council, and until the Canadian government actually bans smoking, thisbylaw will never touch us as far as smoking on our property.
"It's a private property, and what we choose to do inside or outside [on] the property is our business.
"So if you don't want to hear people and you don't want to smell people, don't buy a house that is separated by eight feet."
Maple Ridge Mayor Ernie Daykin said he has reviewed the Krossas' letter and he understands their concerns, but the municipality would be hard-pressed to enforce smoking regulations on private property, both for practical and legal reasons. "This is a new area and it is interesting, and we are looking at our smoking bylaw right now," Daykin said. "But I'm not sure this is practical and enforceable."
David Eby, executive director of the B.C. Civil Liberties Association, said he's aware of civil challenges around second-hand smoke in apartment buildings or on public sidewalks, but this case concerning private property would be "one step further."
The onus would be on the Krossas to prove second-hand smoke entering their home was not just a nuisance, but of a substantial and dangerous quantity.
"People are given a lot of autonomy on their own property to use a legal substance, but your rights end at the point where you are interfering with the rights of somebody else," Eby said.
"Challenges are not typically about one [household] of smokers, so it would be a tough case."
- Sam Cooper is a reporter with the Province