Grow-op searches not illegal: city lawyer

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Firefighters and police who inspect Surrey homes believed to contain marijuana grow-ops are not violating a person’s rights against unreasonable search and seizure, says Surrey’s lawyer J.J. McIntyre.

That’s because residents don’t face criminal prosecution, regardless of what’s discovered inside the home by members of Surrey’s Electrical and Fire Safety Inspection Team.

“There is no evidence collection that takes place, and no criminal charges that can ever result from this kind of administrative inspection,” McIntyre said.

McIntyre made the comments outside B.C. Supreme Court Wednesday afternoon. He was expected to argue Thursday – after The Leader’s deadline – that’s why there is nothing wrong with a provincial law and local bylaw that allows fire crews, using billing records from B.C. Hydro, to issue warnings of inspections to suspected marijuana grow operators.

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 demanded entry to the family’s 6,800-sq.-ft. home in the 13900 block of 34 Avenue.

A B.C. Hydro employee entered and reported no problems and no grow-op, but he was still ordered to disconnect the power because a Surrey fire captain 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.

Arkinstall and Green want the court to strike down the June 2006 amendment to the B.C. Safety Standards Act that allows safety inspectors to enter homes believed to contain grow-ops, alleging the amendment is unconstitutional because the province does not have the authority to enact criminal legislation.

The changes were enacted after lobbying from Surrey Fire Chief Len Garis and Dr. Darryl Plecas, a criminology professor from at the University of the Fraser Valley. The theory was that homes with high power consumption could contain marijuana grow ops, making those homes a greater fire risk.

The lawyer representing B.C.’s Attorney General said Wednesday that while a law attempts to deal with criminal activity, it doesn’t mean the federal government is the only authority that can pass such legislation.

“The province could pass a law to replace large trees in parks with trees that are too small to hide behind to prevent assaults. This is not criminal law,” said the province’s lawer Craig Jones.

As for concerns the police entering the home with safety inspectors constituted a warrantless search, Jones said police have a duty to keep the peace and ensure the safety of the inspectors.

Jones clarified that it’s Surrey’s bylaw, not provincial legislation, that requires two officers to enter a home with inspectors, and suggested it was the rigidity of the city’s policy that resulted in the family’s power being shut off.

That would not happen today. Surrey safety inspectors no longer order Hydro disconnected simply because someone fails to cooperate with the inspection team. If a resident refuses to open their door to the team, they will return a few days later with a search warrant in hand.

The trial was scheduled to conclude Thursday, after The Leader’s deadline.

dweir@surreyleader m

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