SMOKE-AND-MIRRORS RULING ADDS EXTRA STEP TO POT INSPECTIONS

British common law has long held "the house of everyone is to him as
his castle and fortress" and the B.C. Court of Appeal says that
principle still holds.

Stamping out marijuana grow operations might be a laudable societal
goal, but in a unanimous ruling the court said constitutional
protections against unreasonable search and seizure must nevertheless
be respected.

The five-judge panel concluded the government should amend the 2004
Safety Standards Act because people have a high expectation of
privacy in their homes.

Chief Justice Lance Finch, who penned the decision, said two sections
of the law -- authorizing the warrantless entry and inspection of
homes to combat the electrical dangers posed by marijuana grow
operations -- violated the Charter of Rights and Freedoms.

Still, the ruling looks like a lot of smoke and mirrors -- it only
adds an extra step in a pernicious inspection process required as a
result of the expensive failed criminal prohibition against pot.

And it still lets police tag along.

Five justices considered the case because it called into question a
1986 decision by the court that held building inspectors could enter
homes without a warrant to look for illegal suites.

The court held back then that a criminal search warrant procedure was
not appropriate -- such inspections involved only a minimal intrusion
on privacy, involved no seizure of property and were a reasonable
expectation of citizens.

It decided it would not be reasonable to require an expensive,
ineffective process of prior authorization for such routine
administrative inspections.

In this case, a Surrey couple -- Jason Arkinstall and Jennifer Green
- -- refused to let fire safety inspectors into their home as long as
the cops were present without a search warrant.

Arkinstall didn't want the RCMP in his home -- the inspectors were welcome.

But they maintained they couldn't do their jobs without police and
the city cut off power to the Arkinstall home.

The family had to move into a hotel and their electricity wasn't
restored until they obtained a court order a week later.

Two years ago, the B.C. Supreme Court rejected the family's
complaints, so they appealed.

Justice Finch overturned that decision, but he was not trail-blazing.

The Supreme Court of Canada says a warrantless search is patently
unreasonable and to rebut this presumption three requirements should
normally be met: The search must be authorized by law; the law
authorizing the search must be reasonable; and the search must be
carried out in a reasonable manner.

The high bench recognized that may not be possible or even reasonable
in every instance, especially when regulatory or administrative
concerns rather than criminal were the issue. Exceptions were expected.

Justice Finch followed their reasoning and differentiated this case
from the ruling on building inspections.

"In this case, however, the expectation of privacy is high and the
inspections are very intrusive," Justice Finch wrote, as every room,
attic, basement, crawl space and closet is exposed to the "chilling
glare of inspection."

He said the contemporary safety law should require an administrative
warrant, which is easier to obtain than a criminal warrant, requiring
only "reasonable grounds" to believe that a home does not comply with
local bylaws or regulations.

Justice Finch emphasized his decision didn't mean all regulatory
inspections should require administrative warrants.

This court's earlier decision, he said, continues to stand for the
narrow proposition that a minimally intrusive regulatory spot-check
search doesn't require a warrant if it would serve no purpose.

"An administrative warrant is feasible [in this case], serves a
beneficial function, and should be required," Justice Finch said.
"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."

In spite of the great wringing of hands over the judgment, since 2007
Surrey has sought such warrants whenever someone doesn't respond or
refuses to go along with the safety checks.

This ruling doesn't address the real issue.

The cops didn't go along to look for illegal suites; they go along
here because they hope to bust the homeowner for growing pot.

The putative fire-safety inspections remain a Trojan Horse to conduct
criminal searches without meeting the criminal standard.