POLICE NEED SEARCH WARRANT FOR MARIJUANA INSPECTIONS

Court Upholds Law But Says Warrantless Search Was Illegal

A B.C. Supreme Court judge has upheld a provincial law that allows
municipal inspection teams to investigate homes suspected of being
marijuana-growing operations, but ruled that police cannot enter a
residence without a warrant in a case involving a Hells Angels
associate in Surrey.

In a decision released Friday, Justice William Smart ruled that the
Safety Standards Act, which authorizes electrical safety inspection
of residences, does not violate Section 8 of the Canadian Charter of
Rights and Freedoms, which protects the public from unreasonable
search and seizure.

However, in the case between Jason Arkinstall and the City of Surrey,
Smart ruled that police did not have the authority to enter and
search Arkinstall's home as part of the inspection team without a
warrant. He added that the disconnection of power to Arkinstall's
home after police were refused access was unlawful.

Both parties claimed victory in the case that surrounds Surrey's
electrical and fire safety inspection team and how it wanted to
investigate Arkinstall's home for high electricity consumption in May 2007.

The team was composed of a safety officer, a fire official, two RCMP
officers and the city coordinator. Inspectors are not supposed to
enter the home without a police check for safety.

Arkinstall's lawyer, Joe Arvay, said while his client had no problem
with inspectors entering the property, he did not want the police
there without a warrant.

"Having police routinely attend these inspections constitutes an
unconstitutional search and seizure. [Smart] held that my clients
rights were violated," Arvay said. "The case has larger implications
because these teams that come out of each of the municipalities such
as Surrey have said that they won't go unless there's a police presence."

Surrey city solicitor Craig MacFarlane said the decision was
favourable not only to his municipality, but ones across the country
that have adopted templates of Surrey's inspection team because the
law doesn't infringe on charter rights. He said that in anticipation
of this case, the city has already changed its procedures in which
police will be required to have a warrant if they wish to enter a residence.

"This was part of our learning curve in putting our team together,"
MacFarlane said. "Now we feel we're compliant with the constitutional
safeguards against illegal search."