Pubdate: Tue, 25 May 2010
Source: Vancouver Sun (CN BC)
Copyright: 2010 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew, Vancouver Sun
Bookmark: http://www.mapinc.org/mjcn.htm (Marijuana - Canada)

SMOKE-AND-MIRRORS RULING ADDS EXTRA STEP TO POT INSPECTIONS

British common law has long held "the house of everyone is to him as 
his castle and fortress" and the B.C. Court of Appeal says that 
principle still holds.

Stamping out marijuana grow operations might be a laudable societal 
goal, but in a unanimous ruling the court said constitutional 
protections against unreasonable search and seizure must nevertheless 
be respected.

The five-judge panel concluded the government should amend the 2004 
Safety Standards Act because people have a high expectation of 
privacy in their homes.

Chief Justice Lance Finch, who penned the decision, said two sections 
of the law -- authorizing the warrantless entry and inspection of 
homes to combat the electrical dangers posed by marijuana grow 
operations -- violated the Charter of Rights and Freedoms.

Still, the ruling looks like a lot of smoke and mirrors -- it only 
adds an extra step in a pernicious inspection process required as a 
result of the expensive failed criminal prohibition against pot.

And it still lets police tag along.

Five justices considered the case because it called into question a 
1986 decision by the court that held building inspectors could enter 
homes without a warrant to look for illegal suites.

The court held back then that a criminal search warrant procedure was 
not appropriate -- such inspections involved only a minimal intrusion 
on privacy, involved no seizure of property and were a reasonable 
expectation of citizens.

It decided it would not be reasonable to require an expensive, 
ineffective process of prior authorization for such routine 
administrative inspections.

In this case, a Surrey couple -- Jason Arkinstall and Jennifer Green 
- -- refused to let fire safety inspectors into their home as long as 
the cops were present without a search warrant.

Arkinstall didn't want the RCMP in his home -- the inspectors were welcome.

But they maintained they couldn't do their jobs without police and 
the city cut off power to the Arkinstall home.

The family had to move into a hotel and their electricity wasn't 
restored until they obtained a court order a week later.

Two years ago, the B.C. Supreme Court rejected the family's 
complaints, so they appealed.

Justice Finch overturned that decision, but he was not trail-blazing.

The Supreme Court of Canada says a warrantless search is patently 
unreasonable and to rebut this presumption three requirements should 
normally be met: The search must be authorized by law; the law 
authorizing the search must be reasonable; and the search must be 
carried out in a reasonable manner.

The high bench recognized that may not be possible or even reasonable 
in every instance, especially when regulatory or administrative 
concerns rather than criminal were the issue. Exceptions were expected.

Justice Finch followed their reasoning and differentiated this case 
from the ruling on building inspections.

"In this case, however, the expectation of privacy is high and the 
inspections are very intrusive," Justice Finch wrote, as every room, 
attic, basement, crawl space and closet is exposed to the "chilling 
glare of inspection."

He said the contemporary safety law should require an administrative 
warrant, which is easier to obtain than a criminal warrant, requiring 
only "reasonable grounds" to believe that a home does not comply with 
local bylaws or regulations.

Justice Finch emphasized his decision didn't mean all regulatory 
inspections should require administrative warrants.

This court's earlier decision, he said, continues to stand for the 
narrow proposition that a minimally intrusive regulatory spot-check 
search doesn't require a warrant if it would serve no purpose.

"An administrative warrant is feasible [in this case], serves a 
beneficial function, and should be required," Justice Finch said. 
"Requiring an administrative warrant in these circumstances protects 
the individual's expectation of privacy, and it does so without 
undermining the public interest in public safety."

In spite of the great wringing of hands over the judgment, since 2007 
Surrey has sought such warrants whenever someone doesn't respond or 
refuses to go along with the safety checks.

This ruling doesn't address the real issue.

The cops didn't go along to look for illegal suites; they go along 
here because they hope to bust the homeowner for growing pot.

The putative fire-safety inspections remain a Trojan Horse to conduct 
criminal searches without meeting the criminal standard.
- ---
MAP posted-by: Richard Lake