Pubdate: Mon, 30 Apr 2001 Source: StarPhoenix, The (CN SN) Copyright: 2001 The StarPhoenix Contact: http://www.mapinc.org/media/400 Website: http://www.saskstar.sk.ca/ Author: Barb Pacholik REGINA - It could soon be much more difficult to buy roach clips, hookah pipes and other drug paraphernalia after the province's highest court upheld the law that makes it illegal to sell such items. Graeme Mitchell, who argued the case for the Crown, said the ruling clearly bars people from selling items that can be used for illegal drug use "or else they're exposing themselves to criminal prosecution for sure. It's a prohibition." Michael Spindloe, the 39-year-old Saskatoon businessperson whose conviction and four-year legal battle led to the ruling, is baffled. "It seems ever more ludicrous to me that the government would prosecute sellers of paraphernalia at this point given that they're making noises about legalizing marijuana for medicinal purposes and decriminalization in general," he said in an interview after the court released the ruling. Spindloe still contends the law is simply too vague. "There's nothing in the law that specifies what constitutes a pipe that's intended for marijuana or one that's intended for tobacco," he said. "The problem is it's up to the discretion of the police officer. That seems to me to be a little bit spurious." But in what was seen as a test case, the Saskatchewan Court of Appeal became the highest court in Canada to reject those arguments and uphold the law's constitutionality. "Parliament's intention in passing this law was, more generally, the protection of vulnerable youth from receiving a double message about the consumption of illegal drugs. It is also linked to controlling the use of such drugs, and all that accompanies their use," Justice Georgina Jackson said in her 47-page ruling. Although Jackson and Chief Justice Edward Bayda and Justice Stuart Cameron unanimously upheld the constitutionality of the law, they parted company on an appeal launched by the Crown. Two previous lower courts had ruled Spindloe should get back the items police seized. Jackson overturned that ruling, giving some of the items back, but not others. However, the majority ruling by Bayda and Cameron sides with the Crown, saying none of the seized property should be returned to Spindloe. Mitchell said that ruling is significant, since the drug paraphernalia law doesn't specifically make it a criminal offence to simply possess the items. "But our point is . . . why else would they possess such a huge amount of drug paraphernalia but to turn around and sell it again and commit the offence? What you'd essentially be doing is giving him back the means of committing another criminal offence," he noted. The case dates back to May 15, 1997 when four Saskatoon police officers raided Spindloe's store The Vinyl Exchange, which sells records, compact discs, cassettes, collectibles and "smoking accessories." Spindloe was charged with promoting or selling instruments for illicit drug use, including scales, vials, roach clips, and hash pipes. At trial, Spindloe's lawyer not only attacked the validity of the search warrant, but argued the law itself was unconstitutional because it was vague and too broad. Although the judge agreed the warrant was invalid, the seized items were nonetheless admitted into evidence because they were found in "plain view." Provincial court Judge Sheila Whelan also upheld the law. On Aug. 7, 1998, she convicted Spindloe, fined him $1,000, and ordered all the seized items returned to him. Both sides appealed to Court of Queen's Bench Justice Ian McLellan and lost in 1999. That prompted appeals to the province's highest court, which heard arguments in April 2000 and reserved decision. The appeal court upheld Whelan's findings that the warrant to search Spindloe's store was invalid and agreed police didn't need a warrant to seize items in "plain view." It excluded only those items that weren't readily visible, but noted there was still enough drug paraphernalia found to support the charge. It also rejected defence lawyer Alan Young's challenge of the law's constitutionality. The Ontario lawyer couldn't be reached for comment Friday. Spindloe, who never changed his business practices after the previous rulings, is still mulling over a further appeal to the Supreme Court of Canada. He said he feels "singled out," noting a Regina store that sells many of the same items he does has never been charged, nor have the wholesalers or importers from whom he buys his stock. "I believe the government should not criminalize harmless behaviour," he said. - --- MAP posted-by: Doc-Hawk