Is it a crime to smoke or vape on an airplane?

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Is it a crime to smoke or vape on an airplane?

It is a federal offence to smoke on an airplane. Specifically, smoking (including using a vaporizer or e-cigarette) on an airplane contravenes section 602.06(1) of the Canadian Aviation Regulation, which is an offence under section 7.3(3) of the (federal) Aeronautics Act

It is also an offence under the same section of the Aeronautics Act to not comply with other regulations under the Canadian Aviation Regulation, including failure to comply with aircraft crew member safety instructions, which generally include the following: “smoking on the aircraft, including the use of e-cigarettes, is strictly prohibited.” 

These kinds of offences are often called “administrative” or “quasi-criminal” offences, rather than “crimes” because they are not offences directly created by the Criminal Code (e.g., theft, murder, fraud). However, the procedures of the Criminal Code apply to the offence of smoking on an airplane, which is punishable on summary conviction.

In fact, the procedures of the Criminal Code apply to all offences created by federal Acts unless Parliament explicitly states otherwise. There are many federal Acts which create offences governed by the Criminal Code, including the Controlled Drugs and Substances Act, the Canada National Parks Act, the Canadian Environmental Protections Act, and the National Defence Act, to name a few. 

Federal offences to which the Criminal Code apply also carry the same kinds of consequences as offences directly created by the Criminal Code. For example, unlike a provincial traffic offence such as speeding, findings of guilt for most offences under federal statutes go on a criminal record. A conviction for smoking on an airplane can go on your criminal record.

Because the offence of smoking on an airplane proceeds according to the Criminal Code and a conviction for it results in a record, it can be considered a type of “crime.”

What if the plane is outside Canada?

Being outside Canada does not give you a free pass to smoke or vape on an airplane. The Aeronautics Act applies to “all persons and to all aeronautical products and other things in Canada, to all persons outside Canada who hold Canadian aviation documents and to all Canadian aircraft and passengers and crew members thereon outside Canada.” 

If you commit an act outside of Canada that would be considered an Aeronautics Act offence if committed in Canada – including smoking on a plane – then you are considered to have committed the offence and “may be proceeded against and punished in” the place in Canada in which you were found as if you had committed the offence there. So, if you fly from Tokyo to Toronto and are caught vaping on the plane five minutes after leaving Tokyo airspace, you will likely be charged when you land in Toronto, as though you committed the offence in Canada. Similarly, if you fly from St. John’s to Calgary and are arrested and charged for smoking on the plane while you were over Ottawa, you will likely be charged and have court in Calgary.

What happens if I am Caught smoking on an airplane?

If you are caught smoking or vaping on an airplane, you may be arrested and eventually charged under section 7.3(3) of the Aeronautics Act for smoking on an airplane. You may also be charged under the same section for failing to comply with aircraft crew member safety instructions, although you cannot be convicted of both for the same action (e.g., smoking).

The pilot in command of an in-flight plane is a peace officer under the Criminal Code. If you are caught smoking or vaping during the flight, the pilot may arrest you as a peace officer. When the plane lands, the police may be waiting at the gate to take you to the airport security holding cell. If you are arrested for smoking or vaping on an airplane before it takes flight, you may be removed from the plane and not get to take your flight. Chances are, if you are only being charged with smoking or vaping on the plane, you will be released on an Appearance Notice, which means you are free to leave and must attend for fingerprinting and court on specified dates.

What happens if I am convicted of smoking on an airplane?

If you are convicted of smoking on an airplane, then you will be guilty of a summary offence (like a misdemeanour in the United States) and you may be fined up to $5000.00. If this is your second offence under the Aeronautics Act, then you will face a fine of at least $250.00 – but probably more. You will also have a criminal record for the conviction. The airline you were using may ban you from flying with them. 

There is a case called R v Ratmanski which is a famous 2016 Ontario case involving two nursing students who were flying with Sunwing from Toronto to Cuba. They ignored the crew’s safety commands, consumed their own liquor, were disruptive to passengers, smoked a cigarette in the bathroom and left the lit butt in the bathroom garbage causing the fire alarm to go off, and were overheard making bomb threats. As a result, the plane, which was over the Atlantic, returned to Toronto, accompanied by two Canadian Forces fighter jets. The two were charged with several Aeronautics Act offences and criminal mischief. 

Both accused persons in R v Ratmanski pleaded guilty to mischief by willfully interfering with the lawful use, enjoyment or operation of property (over $5000.00) contrary to section 430(1)(c) of the Criminal Code and smoking on an aircraft contrary to section 7.3(3) of the Aeronautics Act. Sunwing sought restitution for $42,500.00 of alleged losses. The sentencing judge decided that the offences were serious, causing more than “a mere annoyance or inconvenience,” danger to the passengers and crew, and substantial losses to Sunwing. The judge found it aggravating that each passenger’s travel plans were “placed in jeopardy” for hours, and that the fears of passengers flying “in a post-9/11 world” – in which “fear and anxiety lie just below the surface for even the most seasoned travellers” – were “certainly ignited among those who heard mention of a bomb.” Both were sentenced to a $500.00 fine for smoking on the plane and a 12-month conditional discharge with 100 hours of community service and counselling for mischief. They also had to pay a restitution order for some of Sunwing’s losses.

The case of R v Ratmanski is an interesting case because it is unique. Most cases of smoking or vaping on an airplane are straightforward and less serious – they do not cause people to fear for their safety, nor do they cause the flight to be delayed or rerouted. In these cases, crown prosecutors may be open to referring matters to the alternative measures program, which allows accused persons to have the charges against them withdrawn upon completing certain requirements. Common requirements include counselling, community service, making a charitable donation, and writing an essay. This can be an excellent option because it allows accused persons to avoid a conviction and criminal record.