City weighing appeal of bong shop ruling
All store's products have legal uses, lawyer says
By: Peter Boer
| Posted: Tuesday, Jan 15, 2013 07:15 pm
One St. Albert councillor believes St. Albert’s changes to the business bylaw targeting head shops were doomed to fail because they were too restrictive, and she doesn’t believe the city should appeal the court decision overturning them.
Coun. Cathy Heron made the comments Tuesday, days after Court of Queen’s Bench Justice T.D. Clackson ruled the amendments restricting the sale of certain items was unconstitutional. Clackson ruled the city was dipping its toes into passing criminal law, which is the exclusive domain of the federal government.
“I knew it was too restrictive and it would have legal ramifications,” Heron said. “It probably wouldn’t hold up in court. I think I voted for it … hoping it would discourage bong shops.”
St. Albert has not yet decided how it will respond. When interviewed over the weekend, Mayor Nolan Crouse criticized Clackson’s arguments as “weak” and said the city would see if it was worthwhile appealing. A decision is expected to be announced later this weak.
Clackson’s ruling was silent on two other parts of the bylaw — requiring such stores to frost exterior glass and prohibiting anyone from under the age of 18 from entering.
Crouse said both those points are good parts of the bylaw that prevent youth from being exposed to a head shop’s influences.
“I still think we can lose track of some of the pieces of the bylaw that are important,” Crouse said.
Last year the city passed amendments to the business license bylaw that restricts stores from selling more than a certain number of categories of goods that can be used for the consumption of illegal drugs.
Under the amended bylaw, no business in St. Albert can sell more than two categories of the following products — 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.
Shortly after the amendments passed, the city inspected The Chad Smoke Shop 420 on Hebert Road and, noting it was not in compliance with the new restrictions, suspended the store’s business licence for five days.
Aleksandra Simic of Beaver, Leebody, Frank and Simic represented Chad employee Ronald Smith in his pursuit to have the bylaw amendments overturned.
“At first blush (the bylaw amendments) seemed to conflict very much so with the different areas of power,” Simic said, referring to the division of powers between different levels of government in Canada.
Simic said her client also visited several other stores in St. Albert that sold similar products and found many stores sold more than what was allowed under the new amendments, but were declared exempt because the store had a pharmacy inside.
“It made things interesting from our perspective because these items appeared to be readily available in a number of different business in the St. Albert community that would have greater sales goods than a small shop would,” Simic said.
The changes also made criminal products that do have a legal purpose, such as smoking tobacco, Simic said. She noted some addicts use pop cans to smoke drugs, which shouldn’t make the sale of pop cans illegal.
“This law seemed to go further into, whether or not it’s intended to be used in this way, we’re going to make it restricted in the first place,” Simic said.
Echoing Simic’s comments, Heron said there is little a municipality can do in trying to restrict the sale of products that have a legal use.
“You cannot ban something that is essentially legal in Canada,” Heron said.