BCCLA applauds B.C. Court of Appeal decision to strike down “grow-op” legislation

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The B.C. Court of Appeal has struck down provisions of British Columbia’s Safety Standards Act that allowed municipal electrical and fire inspectors to demand entry into anyone’s home to do an electrical safety inspection if they suspected the home was being used for marijuana-growing. The B.C. Civil Liberties Association intervened in the case.

The case, Arkinstall et al v. Surrey et al, was brought by two residents of Surrey who refused to allow safety inspectors to enter their home as long as they insisted on being accompanied by police officers. In response, the City of Surrey simply cut the power supply to the home, forcing the couple and their young child to abandon the house.

Robert Holmes, BCCLA President: “This case is a victory for British Columbians and Canadians who value their privacy and the protection of their homes from warrantless intrusion. The Court recognized that the right to privacy in the home is one of the most valued rights of an individual in a democratic society.”

In a unanimous ruling released Thursday, a five-member panel ruled that the search of houses without warrants violates the Canadian Charter of Rights and Freedoms. Chief Justice Lance Finch wrote that the provisions of the Act that “authorize the warrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems for risks that may be associated with marijuana grow-operations” infringe section 8 of the Charter. Section 8 states that “Everyone has the right to be secure against unreasonable search or seizure.”

The Court ruled that an administrative warrant should be required in order to protect the individual’s expectation of privacy, and that requiring administrative warrants would not undermine the public interest in public safety.

Under the provisions of the Act, municipal electrical and fire inspectors could demand entry into anyone’s home to do an electrical safety inspection. The inspections were done without any judicial warrant to enter the home and the only justification given or required for the inspections is that one had “high power consumption” based on electricity consumption records that the City can compel from the utility provider.

Chief Justice Lance Finch wrote in the judgment that the searches were extremely invasive. “They involve walking through the entire residence, searching electrical panels, and very involved searches of attic spaces, and crawl spaces.”

Brent Olthuis, lawyer for the BCCLA: “The Court’s judgment is a strong reaffirmation of some fundamental civil liberties. It reaffirms that individuals have a high degree of privacy in their homes, and underscores the state’s need in situations like this to justify the need for the search before demanding entry.”

The BCCLA was represented by Brent Olthuis and Micah Rankin of Hunter Litigation Chambers.

Robert Holmes, President, 604-838-6856
Grace Pastine, BCCLA Litigation Director, 778-241-7183