Head shop bylaws struck down
Judge says amendments feel like "morality legislation"
By: Peter Boer
| Posted: Saturday, Jan 12, 2013 07:00 pm
St. Albert's mayor says parts of legislation restricting how head shops can operate are significant, even if many of the amendments were struck down by a federal court judge.
A Court of Queen's Bench decision, released in late December by Justice T.D. Clackson, struck down amendments to the business licence bylaw that restrict the sale of certain categories of drug paraphernalia.
In his ruling, Clackson wrote the amendments are like “morality legislation.” Clackson ruled the amendments are about criminal law, which only the federal government can address.
“The amending bylaw has the look and feel of a statement that 'this kind of thing isn't going to happen in my City,” Clackson wrote in overturning the amendments.
Mayor Nolan Crouse took exception with those comments, saying a significant amount of legislation is about morality.
“The judge makes a pretty weak argument,” Crouse said. “He sets the standard of what goes on in the court room. Isn't that determining the morality of the courtroom? So why can't you do that as a municipality?”
He said staff and lawyers will examine the ruling to see if an appeal is worthwhile.
In April of last year city council passed several amendments to the business licence bylaw to restrict the sale of drug paraphernalia by “head shops” or stores that sell items related to the consumption of illegal drugs. The amendments limited businesses from selling three or more categories of products.
The restricted categories include: any product that displays a marijuana plant, a device intended to facilitate smoking activity, grinders, digital weigh scales, and detoxifying products for masking drug effects or enabling users to defeat drug tests.
“The amending bylaw's purpose is to prevent the easy purchase of numerous items which may be used by purchasers in a criminal way. It extends not just to its citizens, but to any person who may be minded to so act,” wrote Clackson.
According to the decision, Ronald Smith, on behalf of the Chad Smoke Shop 420, located on Hebert Road, challenged the amendments after the store's business licence was suspended for five days last May for contravening the new amendments. The city had conducted an inspection prior to the suspension, after it received a letter from the store asking how it could possibly comply with the new amendments.
Clackson drew on agenda reports presented to council as well as a letter written by Mayor Nolan Crouse asking for their experiences with similar kinds of shops, as evidence the amendments had little to do with licensing businesses and were intended to restrict sales of certain products and penalize those who did.
“In my view … the impugned bylaw is about criminal law, a power which is beyond the competence of the municipal government,” Clackson ruled.
While the restrictions on merchandise were tossed by the judge, the ruling was silent on other amendments passed, including requiring such shops to frost any exterior glass so the inside of the store was obstructed from outside view, as well as restricting to access to people 18 years of age or older.
“My point is there are still some good pieces of the bylaw,” Crouse said. “The combination of selling different pieces of paraphernalia was deemed the weakest.”