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.