TRIBUNAL SCOLDS CITY FOR EVICTION

A human rights tribunal found that the City of Salmon Arm
discriminated against a man with a disability when it imposed its
Controlled Substance - Safe Premises Bylaw in the spring of 2007.

The reasons for the decision, issued Aug. 27, outline the events in question.

They state that about two months after passing the bylaw in Feb.
2007, the city ordered Kenneth James and Peter Moynan to vacate their
residence and then disconnected the residence's water supply.

Since 2001, James had had a permit for medical marijuana because he
suffered from a chronic and serious disease, one of the debilitating
symptoms of which was severe weight loss. He was permitted to possess
up to 180 grams of dried marijuana and grow up to 30 plants in his
residence. Both permits were valid until Dec. 16, 2006. James had
testified that about eight weeks before their expiry, he had applied
for renewals, well within the time frame recommended by Health
Canada. He was then told there would be a delay in issuing new
permits because of staffing issues. He was given a phone number to
pass along to anyone who had a concern about the status of his
permits. He eventually received the new permits about four months
past the December expiry date.

The RCMP forced entry into his home on March 23, 2007. James
testified that when he was released from police custody, he found the
lower floor of his residence in a shambles. Wiring had been cut and
all the plants, equipment and security cameras had been removed.

The city's evidence stated the RCMP sent an email to the bylaw
officer about an illegal grow operation in a city residence. The city
subsequently posted a Do Not Occupy notice on the house and ordered
the residents to remove and dispose of all curtains and carpets,
clean all forced air heating ducts, have all walls and ceilings
replaced or disinfected and then hire a certified hygienist to test
and certify the building free from pesticides, fertilizer, toxic
chemicals, mould and fungi.

Then the city would do a review and after all fees to the city were
paid, the building could be reoccupied.

A report was given to city council in April 2007 about the residence
with a recommendation the water be turned off. The report did not
include the information that James had applied for a renewal of his licences.

In May 2007, with the new permits, the residents and their lawyer
requested that the water be reconnected. The city checked with the
RCMP and was advised the illegal status of the grow-op hadn't changed.

Following a hearing in May of this year, tribunal member Kurt
Neuenfeldt wrote that "Over the period that the city initiated
enforcement of the bylaw on Mr. James' and Mr. Moynan's residence,
the city knew Mr. James had previous permits for medical reasons and
knew Mr. James had applied for renewals of the permits. As of May 3,
2007, the city knew Mr. James had received renewed permits, and was
licensed to grow marijuana, in exactly the same manner and place as
he had before, although now facing the hurdles of the city's Do Not
Occupy notice, the water cut off and the $3,009 bill."

Neuenfeldt determined that "the city discriminated against Mr. James,
when it rigidly imposed the bylaw against him, while failing to take
into account, adequately or at all, his disability, the very reason
he was growing marijuana in his residence in the first place. The
city never considered whether to exercise its discretion in the
application of the bylaw, to accommodate Mr. James' unique
circumstances. It took no steps to obtain all the relevant
information it could about his disability. It would not have caused
it undue hardship to do so."

The city was ordered to rescind the Do Not Occupy notice, to
reconnect the water supply and to cancel all costs sought by the
city, all within 30 days.

The complainants did not seek compensation for injury to dignity,
feelings and self-respect, which can be sought under the Human Rights Code.

James' lawyer, Fred Kaatz, said he thinks the city was a little
callous in its actions, and he pointed to the length of time the
whole process has taken.

"These guys have been without being able to go into that home for two years."

He also noted the residents were never charged with criminally
growing marijuana.

Mayor Marty Bootsma said he doesn't know if the city will be
appealing the decision; that would be decided by council.

He said he doesn't think the city should be making any changes to the bylaw.

"Council may direct otherwise, but personally the bylaw wasn't
challenged and it has been a success. We have grow ops in the
community, we don't want to have grow ops in the community, and we
have had five or six cases and it has been successful... I don't
think we're going to throw out the baby with the bath water."