Surrey’s grow-op bylaw on trial
A law that allows Surrey firefighters and police to enter homes believed to contain marijuana grow-ops is unconstitutional, B.C. Supreme Court was told Monday.
Lawyer Joseph Arvay argued the provincial government did not have the authority to amend B.C.’s Safety Standards Act to allow officials to demand entry to perform a electrical safety inspection. Arvay said the amendment is a veiled attempt by the province to enact criminal legislation, something only the federal government has authority to do.
Even if the province could pass such a law, the safety inspection is still a warrantless search by police, the lawyer said, which violates a person’s rights against unreasonable search and seizure.
The B.C. government enacted the changes in June 2005 after lobbying from Surrey Fire Chief Len Garis and Dr. Darryl Plecas, a criminology professor at the University of the Fraser Valley. The theory was that homes with high power consumption could contain marijuana grow operations, making those houses a greater fire risk.
Using billing records from B.C. Hydro, fire crews issue warnings of inspections to suspected grow operators. If evidence of a grow-op is found, the power is cut off. Hydro can also be shut off if residents do not allow the inspection.
South Surrey residents Jason Arkinstall and Jennifer Green are suing the City of Surrey, B.C. Hydro and the provincial government after fire officials ordered their power cut May 30, 2007.
Surrey’s Electrical and Fire Safety Inspection Team, consisting of Surrey safety inspectors, B.C. Hydro personnel, firefighters and police, demanded entry to the family’s 6,800-sq.-ft. home in the 13900 block of 34 Avenue.
Arkinstall agreed to let the authorities in, except police, but with Surrey’s bylaw requiring at least two police officers be present during the inspection, the safety inspector and firefighters refused to enter.
That left only the B.C. Hydro employee to walk around the house looking for safety issues. The Hydro employee reported no problems and no grow-op, but was still ordered to disconnect the power because Surrey Fire Capt. Calvin McKibbon felt the inspection was insufficient.
The family’s power remained off for five days until B.C. Supreme Court Justice William Smart ordered it restored. In the interim, Green took refuge with the couple’s then three-and-a-half-year-old son in a hotel room.
In her deposition, Green attributed the high Hydro bill to the fact their home has an indoor pool, hot tub and sauna.
Arvay is asking Justice Smart to strike down the law, saying the science used to justify it is biased. He contends homes with grow-ops pose no greater fire risk than homes without, arguing Plecas only used statistics involving known grow-ops when he calculated that home plantations posed a 24-times higher risk.
It’s suspected there are twice as many grow-ops as officials know about, and if those figures are factored in, the number of fires per grow-op drops significantly, which in turn changes the risk calculation, Arvay said.
Arvay also took issue with how fire officials determine which homes to inspect. Homes using more than 93 kilowatts per hour are considered to have high power consumption, regardless of the size of the house or whether it has pools or hot tubs. In addition, he said there is no evidence as to how the “high” threshold was determined.
Using the Electrical Fire Safety Initiative, Surrey shut down 830 grow-ops in the city last year.
The trial was expected to conclude today (Wednesday), with legal arguments from the province and the City of Surrey.