Pubdate: Tue, 22 Apr 2008
Source: Vancouver Sun (CN BC)
Copyright: 2008 The Vancouver Sun
Contact:  http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Gerry Bellett, Vancouver Sun
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)

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. 
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MAP posted-by: Richard Lake