Pubdate: Fri, 25 Apr 2008
Source: Surrey Leader (CN BC)
Copyright: 2008 Surrey Leader
Contact:  http://www.surreyleader.com/
Details: http://www.mapinc.org/media/1236
Author: David Weir
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)

GROW-OP SEARCHES NOT ILLEGAL: CITY LAWYER

Firefighters and police who inspect Surrey homes believed to contain 
marijuana grow-ops are not violating a person's rights against 
unreasonable search and seizure, says Surrey's lawyer J.J. McIntyre.

That's because residents don't face criminal prosecution, regardless 
of what's discovered inside the home by members of Surrey's 
Electrical and Fire Safety Inspection Team.

"There is no evidence collection that takes place, and no criminal 
charges that can ever result from this kind of administrative 
inspection," McIntyre said.

McIntyre made the comments outside B.C. Supreme Court Wednesday 
afternoon. He was expected to argue Thursday - after The Leader's 
deadline - that's why there is nothing wrong with a provincial law 
and local bylaw that allows fire crews, using billing records from 
B.C. Hydro, to issue warnings of inspections to suspected marijuana 
grow operators.

South Surrey residents Jason Arkinstall and Jennifer Green are suing 
the City of Surrey, B.C. Hydro and the provincial government after 
fire officials ordered their power cut May 30, 2007.

Surrey's Electrical and Fire Safety Inspection Team demanded entry to 
the family's 6,800-sq.-ft. home in the 13900 block of 34 Avenue.

A B.C. Hydro employee entered and reported no problems and no 
grow-op, but he was still ordered to disconnect the power because a 
Surrey fire captain felt the inspection was insufficient. The 
family's power remained off for five days until B.C. Supreme Court 
Justice William Smart ordered it restored.

Arkinstall and Green want the court to strike down the June 2006 
amendment to the B.C. Safety Standards Act that allows safety 
inspectors to enter homes believed to contain grow-ops, alleging the 
amendment is unconstitutional because the province does not have the 
authority to enact criminal legislation.

The changes were enacted after lobbying from Surrey Fire Chief Len 
Garis and Dr. Darryl Plecas, a criminology professor from at the 
University of the Fraser Valley. The theory was that homes with high 
power consumption could contain marijuana grow ops, making those 
homes a greater fire risk.

The lawyer representing B.C.'s Attorney General said Wednesday that 
while a law attempts to deal with criminal activity, it doesn't mean 
the federal government is the only authority that can pass such legislation.

"The province could pass a law to replace large trees in parks with 
trees that are too small to hide behind to prevent assaults. This is 
not criminal law," said the province's lawer Craig Jones.

As for concerns the police entering the home with safety inspectors 
constituted a warrantless search, Jones said police have a duty to 
keep the peace and ensure the safety of the inspectors.

Jones clarified that it's Surrey's bylaw, not provincial legislation, 
that requires two officers to enter a home with inspectors, and 
suggested it was the rigidity of the city's policy that resulted in 
the family's power being shut off.

That would not happen today. Surrey safety inspectors no longer order 
Hydro disconnected simply because someone fails to cooperate with the 
inspection team. If a resident refuses to open their door to the 
team, they will return a few days later with a search warrant in hand.

The trial was scheduled to conclude Thursday, after The Leader's deadline.
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MAP posted-by: Jay Bergstrom