Inspections with no Warrants Violates Canadian Charter of Rights and Freedoms

Gary Oakes for The Lawyers Weekly

June 4, 2010

Provincial legislation authorizing warrantless entries into homes to inspect electrical systems for safety risks possibly related to marijuana grow operations violates the Charter, a rarely-convened five-judge panel of B.C.'s top court has held.

Writing for a unanimous court, Chief Justice Lance Finch held that such inspections "constitute a considerable intrusion into an individual's reasonable expectation of privacy[...]"

And while the Safety Standards Act includes a requirement that there be "reasonable grounds" for an inspection, that is not sufficient to make the searches acceptable under the Charter, he said.

The situation in Arkinstall v. Surrey (City) arose when the homeowners refused to allow members of a fire-inspection team to search the premises if they were accompanied by police. As a result, the power was cut off.

Chief Justice Finch said the team could apply for a warrant under s. 275 of the province's Community Charter. It "is easier to obtain than a criminal warrant, and [has] a lower standard.[...]

"An administrative warrant is feasible, serves a beneficial function, and should be required. [It would] protect[...]the individual's expectation of privacy[...]without undermining the public interest in[...]safety. To obtain [one] it will be necessary to show that 'reasonable grounds' exist to believe that permit conditions, or codes or standards established by regulation, are not being complied with."

The decision "is a victory for [those] who value their privacy," said Robert Holmes, president of the B.C. Civil Liberties Association which was an intervener in the case.
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