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METRO VANCOUVER -- The B.C. Court of Appeal has ruled a law allowing city electrical inspectors to search houses for marijuana growing operations without warrants violates the Canadian Charter of Rights and Freedoms.
Five members of the court sided with appellant and Hells Angel associate Jason Cyrus Arkinstall in ruling two parts of the Safety Standards Act are unconstitutional.
Chief Justice Lance Finch said two sections of the act that "authorize the warrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems for safety risks that may be related to marijuana grow-operations, they infringe the appellants' rights under section 8 of the Charter of Rights and Freedoms."
The appeal court overturned an October 2008 B.C. Supreme Court ruling that said the Safety Standards Act was constitutional, though the attempted searches of Arkinstall's residence was improper.
Provisions within the act has allowed city inspectors and police to investigate homes with higher than normal power consumption as suspected grow-op, without obtaining warrants.
Finch said making inspectors get warrants "serves a beneficial function, and should be required." "Requiring an administrative warrant in these circumstances protects the individual's expectation of privacy, and it does so without undermining the public interest in public safety," he ruled.
Surrey Mayor Dianne Watts said while the ruling is disappointing — it won't stop the successful program targeting illegal grow-ops.
"It is disappointing, but not surprising," Watts said. "We will work with the ruling and continue to do what we have to do....we are not going to stop the program."
Surrey fire chief Len Garis, who piloted the successful program, said over the last five years most of the residents targeted have complied with the request to enter their homes. Just four objected, he said.
"Of course I am disappointed," he said.
Now his team will not bother with consent and will present all their evidence directly to a justice of the peace to obtain a warrant, he said.
"It is an extra step. It is a bit of an inconvenience for us. But I don't suspect it will slow us down," Garis said.
The number of searches being done in Surrey has dropped significantly in the last few years from a high of 60 a month.
"The volume dropped off considerably to the point where we are doing about four to six a week," Garis said. "We recognize that our success is putting pressure on other communities."
He said he has given presentations to officials across B.C. and in Alberta who want to adopt Surrey's program.
Arkinstall's lawyer Joe Arvay did not return calls Thursday.
But his client, who police describe as an associate of the Hells Angels, still owns the $1.1 million Surrey home in the 13900-block of 34 Avenue, along with spouse and co-appellant in the case Jennifer Green.
Arkinstall, described on property records as a businessman, also owns a Kelowna house assessed at $2.1 million and is co-owner of a Cranbrook property worth $236,000
He has an extensive criminal record and has been convicted of offences ranging from assault causing bodily harm to trafficking in cocaine, for which he was sentenced to 18 months in jail, July 28, 2005.
Surrey city inspectors and police first attempted to enter the house back in 2005, but Arkinstall refused. They tried again 2006 and 2007 on the grounds that the high power consumption could mean a grow-op was inside and the neighbourhood at risk.
Arkinstall agreed to allow inspectors in, but not Surrey RCMP officers. The inspectors would not go in unescorted.
B.C. Hydro later cut off the family's electricity, though there was no proof of a grow-op inside.
That sparked his three-year court battle, in which the B.C. Civil Liberties Association joined as an intervenor.
Attorney General Mike de Jong said Thursday that the ruling does not strike down the law, but simply says "a procedural safeguard needs to be adopted as part of the process."
de Jong said he didn't see the need for legislative amendments.
"I think any time the state purports to enter into a dwelling house, that's an extraordinary step. The trick is to balance that against the proliferation of grow-ops that have arisen in the province and, particularly, in some places in the Fraser Valley," he said.
"The court actually has provided a judgement that is helpful, in my view, based on my early reading of it, to refine what that balance looks like and, and the idea of attaining an administrative warrant prior to embarking upon this kind of inspection is what makes sense to me."
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