A landmark B.C. Supreme Court decision has upheld Surrey's initiative to clamp down on homes suspected of containing marijuana grow operations.
However, police are no longer allowed to attend the home inspections.
Surrey Fire Chief Len Garis launched the initiative in March 2005 after a successful pilot project in this city. Homeowners with high power consumption are notified they will be subject to an inspection. If the homeowner refuses, or a grow operation is found, the power to the home is shut off.
In May 2007, the inspection team attended the home of South Surrey residents Jason Arkinstall and Jennifer Green, who said municipal staff could enter, but police could not. The team left without inspection and had the power to the home shut off.
Arkinstall took the city to court over it, raising questions about the constitutionality of the whole inspection program.
In a judgment released Friday, Justice William Smart ruled that the Safety Standards Amendment Act, which allows electrical inspection teams to enter residences suspected of containing grow operations, does not violate the Canadian Charter of Rights and Freedoms.
However, bringing police along for the inspection breaches Section 8 of the Charter, which protects the public against unreasonable search, Smart found.
"A police search of a private residence, even when conducted in aid of an electrical safety inspection, is intrusive," Smart wrote in his ruling. "The search and police presence during the safety inspection add a significant stigma to the inspection, imbuing it with an aura of criminality absent from a typical electrical safety inspection. These factors must be considered together with the very high expectation of privacy that attaches to a private residence."
He also noted that the disconnection of power to the Arkinstall residence was a further breach of their rights.
Garis said Monday he's extremely pleased with the ruling.
"It's an absolute win," Garis said in a cell phone interview. "What was preserved first and foremost is the legislation."
The Supreme Court ruling validates the working relationship between the provincial and municipal governments to shut down grow operations using the new method, Garis said.
The fact police officers won't be able to come to the door is an easy workaround, he said.
"It doesn't preclude them from being on the street," Garis said. "It doesn't preclude us from using security, we still haven't wrestled that one to the ground yet. Either way we can make work."
He said the days of pot growers using booby-trapped buildings and guard dogs are a thing of the past, noting his team only found a "small handful" of cases where he would consider it a property of concern.
He also noted because the program doesn't involve taking the suspected growers to court, the threat level is minimized somewhat for the team.
"There's no risk of criminal prosecution, so the stress levels aren't that high," Garis said.
Since its inception three years ago, the Surrey grow-op team has shut down almost 1,000 properties suspected of containing grow operations.
Garis has anecdotal evidence many of the growers have headed to the B.C. Interior.
The immensely popular inspection program has been mimicked by cities across the country.
With the court ruling upholding its validity, Garis acknowledged there's room for expansion.
"Homes that are suspected of being crack shacks or homes that are suspected of being used for meth ( crystal methamphetamine ) labs, these types of principles would be applicable to them," Garis said, adding it's too early to go public with initiatives being considered.
"Certainly we need to start putting our thinking caps on," Garis said, noting the court has "clearly established" the need for the safety of people living near "these sorts of activities."
Regarding the Arkinstall problem, Garis said the program has since been altered to avoid that type of intrusion.
"Early on in the process there were some growing pains with it," Garis said. "I can clearly say that... all of those issues have been addressed by way of policy revisions."
City Solicitor Craig Mcfarlane was pleased with the ruling and said the city has no intention of appealing the decision.
Author: Kevin Diakiw
Pubdate: Mon, 27 Oct 2008
Source: Surrey Leader (CN BC)
Copyright: 2008 Surrey Leader