Case Report – BCCA says residential safety inspections require a warrant

On May 20th, a five-judge panel of the British Columbia Court of Appeal held that provisions of the British Columbia Safety Standards Act violate section 8 of the Charter to the extent they authorize the warrantless entry and inspection of residential premises for the purpose of inspecting safety risks that may be related to marihuana grow-operations.

The SSA gives safety officers the power to enter premises, including residences, to conduct an inspection provided “there are reasonable grounds to do so.” It also enables local governments to obtain information about hydro accounts that average over 93 kwH per day in a billing cycle to facilitate inspection. The background facts involved an inspection of a 6,800 square foot home with a indoor pool, a sauna/steam room, a hot tub, a greenhouse and central air conditioning. One of the residents testified the house had never been used as a grow-op.

The Court held that an inspection for grow-op related safety hazards is not a typical regulatory inspection. Most significantly, the Court held that the legislation invites a particularly intrusive search of a private residence because the violations under inspection are not easy to find. As stated by the applicants:

Searches under the SSA are intrusive. They involve walking through the entire residence, searching electrical panels, and very involved searches of attic spaces, and crawl spaces. Indeed, the Chambers Judge commented on the level of “thoroughness” of the search when discussing police involvement in same.

The Court also held that a search for residences used as grow-ops is stigmatizing and that obtaining an administrative warrant would not frustrate the objectives of the inspection regime.

Akinstall v. City of Surrey, 2010 BCCA 250.

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