Brian Santa admits he was smoking in the bar at the '98 Hotel when city bylaw Const. Mike Hardie walked in last Dec. 2.

What he has a problem with though, is that charges against local bars for breaking the smoking bylaw were withdrawn, while charges against him for breaking the same bylaw proceeded to court.

This morning, after Santa pleaded not guilty to the charge and presenting his argument with his friend, Ron Fox, to the court, Justice of the Peace Dean Cameron found Santa guilty of smoking in a public place. He ordered that he pay a $100-fine.

'The intent of the law wasn't changed,' Cameron said.

Before presenting his argument, Hardie took the stand, reporting that last Dec. 2 he went into the bar at the '98 and noticed Santa inhaling on a cigarette.

'He quickly put his cigarette out in a beer bottle,' said Hardie.

The constable then asked Santa for his identification and issued him a ticket for smoking in a public place.

City lawyer Lori Lavoie also called bylaw Const. Dave Pruden to the stand to confirm the '98 had a valid business licence at the time. The licence is valid from April 1, 2005 to March 31, 2006.

Taking the stand on his own behalf, Santa said didn't dispute Hardie's account of the incident.

'I had a cigarette, yep,' he said.

While Lavoie told the court she had prepared for a more fact-based case rather than a legal argument, Cameron allowed Fox to present his arguments on Santa's behalf.

Presenting the court with many newspaper articles, Fox suggested it was public knowledge since January the city would be changing the smoking bylaw due to legal issues. Charges were then withdrawn for bars, including the '98, accused of breaking the regulation. Then the bylaw was changed.

Until those 'glitches' were worked out, said Fox, no charges should have been laid.

'Charges (for individuals) should be dropped, the same as the bars,' he said.

He also pointed out the next ticket issued after the Dec. 2 charge wasn't issued until Feb. 14, suggesting that could have been because the city knew there were problems with the law.

Fox suggested the original bylaw was struck down. Lavoie noted in her response the bylaw was still in place as it was being amended.

The problem with the bylaw didn't relate to the section directed at individuals smoking in a public place, but had to do with the proprietors of the bars and other public places where smoking is prohibited.

'That was the primary reason for the bylaw to be reopened,' she said.

The charge against Santa was part of the bylaw the city had always intended to keep in place.

The city acknowledges the bylaw was amended but it remained relevant at the time, Lavoie told the court.

Cameron agreed.

The facts aren't being disputed, he said, but confusion came about due to a misunderstanding of the process in making laws.

It's important to understand an amendment to a bylaw doesn't mean it's being struck down, he said.

When a bylaw is amended, as this one was, the current regulations continue to be in force until the bylaw is changed, Cameron said.

'It doesn't mean a change can't come forward,' he said.

What was amended in this case was not the prohibition on smoking in public places, but the specifics of the bylaw.

On Fox's argument that the city hasn't been enforcing the bylaw because it knew of problems with the law, Cameron said there could be many reasons it hasn't been enforced. While it remains illegal to run a stop sign, it's not a regulation that's always enforced, he said.

The bottom line, Cameron said, is the legal argument falls short.

Santa was given two months to pay the $100-fine.

Outside the courtroom after the case was heard, Santa said he would take some time to decide whether he'll appeal the case. He has 30 days to do so.

At the time, the bar's owner, Coun. Mel Stehelin, was permitting patrons to smoke in the bar. A smoker sitting near Santa had noticed Hardie a little earlier and had butted out before the constable noticed him as well.

'I wasn't the only one smoking,' Santa told reporters.

While Santa said he now goes outside for a smoke, the bylaw has taken away freedoms, he said.

'We got no freedoms, no more; can't do anything,' he said.

Santa had only been in Whitehorse less than a year when he got the ticket.

He moved here from Saskatchewan, where he said there is also no smoking in public places.

Moose Jaw took the smoking regulations one step further by requiring smokers to be 90 metres away from a building entrance. It essentially means a person can't even walk down the street anymore to have a smoke, he said.

What's next, he questioned: is the government going to say a person isn't allowed to live somewhere?