POT LAW CHALLENGED AS RIGHTS VIOLATION

Couple Fights Legislation Allowing Police and Inspectors to Enter Homes

Provincial legislation allowing police and safety inspectors to enter
homes suspected of being used to grow marijuana is being challenged
by a lawyer representing a Hells Angels associate, assisted by
lawyers from the B.C. Civil Liberties Association.

Victoria lawyer Joseph Arvay, who represents Surrey residents Jason
Arkinstall and Jennifer Green, told B.C. Supreme Court Justice
William Smart that the authorities were not entitled to enter
someone's home without a proper warrant, and that to cut off
electrical power if a person won't permit entry was a violation of
the Charter of Rights and Freedoms.

The B.C. Civil Liberties Association has been granted intervenor
status in the case that is being heard in chambers. BCCLA litigation
director Grace Pastine said Monday that the legislation was being
used as a "tool to conduct warrantless searches of citizens' homes
which was a clear violation of the Charter."

Arvay described the provincial government's attempts to use the
Safety Standards Amendment Act to close down marijuana-growing
operations as "moral panic" caused by frustration and exasperation at
not being able to cope with the numbers of such operations in the province.

The province should not exceed its power and if the authorities could
use this to bust growing operations, Arvay asked, what was to prevent
them from doing the same for suspected gambling dens or pedophilia rings?

Arkinstall, who lives in a 6,000-square foot home in the 13900-block
of 34th Avenue in Surrey, 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.

Arvay said the first attempt by police, fire and safety inspectors to
enter Arkinstall's home came in 2005.

In June 2006, the government made changes to the safety legislation
that permitted safety inspectors to enter homes where power
consumption was much higher than average. It was argued that
residents in such homes might be engaged in cultivating marijuana,
which was deemed a fire risk.

In November 2006, there was further interest by police in
Arkinstall's residence. In May 2007, Arkinstall was called and warned
that an inspection would be carried out two days hence.

Arkinstall said he would allow inspectors access to his home, but not
the police. Surrey RCMP officers attended the home with fire and
building inspectors and an inspector from BC Hydro.

Arkinstall wouldn't allow the police to enter, so the fire and
building inspectors wouldn't go in unescorted. A BC Hydro inspector
went in and found nothing wrong, said Arvay.

Despite there being no evidence of marijuana cultivation, power was
ordered to be cut off, forcing the couple and their young child to
leave their home. It took a court order five days later to get the
power turned on.

Arvay is seeking to have the changes made to the legislation declared invalid.

Before the changes, the police complained they had no way of closing
down the thousands of suspected marijuana-growing operations in B.C.
because it took too long for them to get warrants authorizing a search.

The legislation was changed so that Hydro would be compelled to give
details of customers' power consumption to municipalities without a
local government having to file an access-to-information request. Any
abnormal power consumption patterns noted by Hydro will now trigger
police interest.

However, any evidence found during these searches can't be used as a
basis to lay criminal charges.

Arvay said the average power consumption was set at 33 kilowatt hours
per day and that anything in the range of 92 kilowatt hours per day
would cause an investigation. He said these were arbitrary numbers.

He also challenged a report by a criminology professor at the
University College of the Fraser Valley, which concluded that the
risk of fire in houses with growing operations was 24 times higher
than in the average home.

"The evidence that grow-ops present a serious risk of fire is
concocted in order to give the province the power to put grow-ops out
of business," Arvay said. He said there was no evidence that growing
operations were likely to start more fires than could be expected in
the average home.

The case was expected to take three days.