'I'M NOT GUILTY, SO I'M NOT LEAVING'

City Inspects Homes on Questionable Grow-Op Evidence, Then Bills Owners

Mission is reviewing its home growop inspection program over
allegations the municipality sometimes abuses its power by barring
innocent families from their homes and slapping them with fees and
repair orders costing upward of $10,000 -- all on questionable evidence.

The Province learned of the unannounced move -- which took effect
this week -- while investigating a number of complaints from citizens
in Mission.

In Mission and a number of cities across the Lower Mainland,
"controlled substance property bylaws" mean municipal inspectors can
enter homes with abnormally high hydro usage -- about 93 kilowatts
per day or more -- and look for evidence of illegal marijuana
grow-ops for public safety reasons.

The programs are all based on provincial legislation allowing local
governments to access B.C. Hydro's residential electrical consumption data.

The Province has learned that Mission's council decided in a
closed-door meeting to halt its two-step role of judging evidence --
including mould and mildew readings taken from suspected grow-op
homes -- pending consultation with lawyers and district staff.

Pressure for the review came internally from concerned councillors,
and externally from angry citizens and the B.C. Civil Liberties
Association (BCCLA).

"We are getting a phenomenal number of people contacting us," Michael
Vonn of the BCCLA said. "People are saying a zealousness has been
introduced [in Mission] so that inspectors are going out of their way
to find evidence of grow-ops that don't exist."

Vonn said the BCCLA has asked to meet with officials in Mission, and
"test litigation" is possible. "This is about the sanctity of
people's homes," Vonn said. "We're very, very concerned because with
the great similarity of concerns, it raises the bar on the likelihood
of credible complaints."

Vonn added the BCCLA is hearing similar complaints about growop bylaw
programs across the Lower Mainland, and will "absolutely" be opening
investigations in other municipalities.

Stacy Gowanlock, a contractor and father of five, said he was working
a job in Pemberton in September 2009 when his wife, Mandy, called.
The district wanted to inspect their home on 24 hours' notice.

"We'll let them in. We have nothing to hide," he told Mandy.

He returned to Mission and the next day a team of three inspectors
toured his property, which includes a pool, hot tub and a large
workshop, with a police car waiting outside.

The electrical inspector identified a problem with the wiring in the
hot tub, which Stacy Gowanlock says accounted for the high hydro
usage. But the shock came at the end.

"One guy says we have a couple issues; someone has been growing
marijuana on the property," Gowanlock recalls. "I said, 'Nobody is.
Where are you getting these facts from?'"

The team said a grow-op had been operated out of the family's attic,
and they would be getting a $5,200 inspection bill.

The couple insisted they had never grown a single pot plant in the
home, and inspectors told them they had a chance to fight the
charges. That's what Gowanlock did, appearing before council in July.

But council, said Gowanlock, "pretend to be interested, but they are not."

"I said I don't think you should be coming onto homes without at
least saying beforehand it's a $5,200 inspection fee," Gowanlock says.

"It's not just about me.

"How many people are they going to railroad before it comes to a stop?"

Another Mission resident fighting city hall is Trish Banfield.

She insists she's never had a growop in the 56-year-old,
700-square-foot house she purchased in 1989. But on Feb. 4, 2009,
after a "brief" home search, inspectors levied the $5,200 search fee
and condemned Banfield's home. Basically, she says, authorities had
charged, convicted and sentenced her without giving her a chance to
defend herself.

She says she hasn't paid the bill. She says she lost a job with the
city in the aftermath of the search, and suffers a tarnished reputation.

And when she got her opportunity to argue to council against having
her home tagged as unsafe under the bylaw -- affecting insurance and
real-estate value -- the politicians were not interested in
listening, she says.

"They've condemned my house but I refuse to leave. I'm not guilty, so
I'm not leaving."

Mission was not able to provide to The Province statistics on growop
home inspections in time for this story, nor the minutes of private
Section 57 hearings in which councillors judge whether to tag homes
as unsafe under the grow-op bylaw -- but Fire Chief Ian Fitzpatrick
provided a "snap shot" of the program from January to October 2010.

After identifying homes showing high power usage, checking building
records, looking at Google Earth images and observing homes,
inspectors targeted about 150 properties in Mission.

About 48 residents were charged with a $5,200 inspection fee under
the bylaw although no active growop was found; about five active
grow-ops were found; eight legitimate medical grow-ops were found;
searchers could not access about five homes for legal reasons; and 70
or more citizens were cleared, according to Fitzpatrick.

To levy the fee, Fitzpatrick said, all three inspectors on the team
- -- a fire inspector, building inspector and an electrician -- must
agree there is evidence of past grow-op activity.

The Province learned that one young couple, who asked not to be
named, recently had their home searched under the grow-op bylaw and
inspectors slapped a "Do not occupy" order on the dwelling. After the
couple complained of unfairness, with the support of Mission's
retired director of inspection services, Larry Nundal, the order was
removed earlier this week.

Nundal and Coun. Jenny Stevens, who both pushed for the bylaw review,
say the backpedalling shows the district is acknowledging "checks and
balances" need to be built into the program.

In an interview, Mayor James Atebe said council will eventually judge
the couple's case, and repealing the do-not-occupy order was a staff
decision. Despite the "ongoing review" of the bylaw program -- which
Atebe said is not unusual -- inspections are continuing at a rate of
about four a week.

While Atebe says he's open to building checks and balances into the
program, he says he strongly supports it and, of all the allegations
put forward by Mission residents, "they haven't proven to anyone that
they were searched unfairly."

"I'm willing to say, 'We screwed up, and let's sharpen the tool,'"
Atebe said. "I don't want to lose the tool because it's imperfect.
Also, I don't want to keep the tool if it's encroaching on people's rights."

Stevens said she pushed for the review because she has concerns about
the "whole process" and is unsure of her role in judging "scientific
evidence" of alleged grow-ops -- including mildew, electrical safety
faults and mould readings -- presented by inspection teams.

"It's a bit too rubber-stamp-process for me, and I feel ignorant and
incompetent, and therefore uncomfortable," she said. "I want to be
sure we are being fair and just."

Grow-op bylaws sprouted in communities across Greater Vancouver after
Surrey started its groundbreaking Electrical and Fire Safety
Inspection (EFSI) program in 2005.

The bylaws are all based on the Surrey model -- which has levied
$2.94 million in fees on a total of 1,928 inspections since 2005,
according to the city's records. The fees fund grow-op bylaw costs.

If violations are found, inspectors can order repairs costing about
$8,000 and seek a fine of $10,000 in provincial court, in addition to
an inspection fee of about $5,000.

Surrey has never once pursued the $10,000 fine.

The same is true of Chilliwack -- which has tagged about 210 homes
under its grow-op bylaw, according to an Abbotsford Times article in
October citing city documents. And although Mission did not provide
information to The Province, Stacy Gowanlock says it's believed they
have never pursued the $10,000 fine either. A 2008 Supreme Court
ruling on a case in Surrey, which found police could not tag along on
"safety" inspections, seems to have put a chill on the willingness of
local governments to test cases in court. It has also effectively
reduced inspections since, according to a City of Richmond staff report.

Critics like Gowanlock and Larry Nundal say municipalities don't
pursue the $10,000 fine because evidence taken in home searches would
not win convictions in the justice system. Danny Markovitz, a
criminal defence lawyer from Richmond, agrees.

Speaking generally, Markovitz said, the grow-op bylaw "is being used
to allow the police and municipality to take a back door into homes
when they can't take the front door."

The grow-op bylaw is the brainchild of Darryl Plecas, a criminology
professor at the University College of the Fraser Valley, who helped
launch it in Surrey. According to a report by Plecas and his team,
the bylaw led to a stunning 80.9-per-cent reduction in residential
grow-ops in Surrey from 2004 to 2008.

"The justice system is inept at dealing with this problem so,
instead, we've created a system of major disruptions to
grow-operators' business," Plecas told The Province in a previous
story. But Plecas -- who corresponded with The Province by email --
said while the total number of grow-ops in B.C. has likely dropped
from about 17,000 in 2000 to about 10,000 today, "the size of grows
has doubled, so overall production hasn't dropped at all."

Back in Mission, Nundal said he was encouraged after a meeting with
district staff head Glen Robertson on Monday. Nundal says he supports
the goals of the bylaw, but an arm's length adjudicator must take
over council's role of judging cases.

"All I care about is how many innocent people have been affected by
this," Nundal said in an interview outside city hall. "Today they
agreed to put in some checks and balances. This is the first time
I've been listened to, and someone is looking at rectifying the wrong."