OSOYOOS TIMES-May 26, 2010
By Laurena Weninger – Osoyoos Times
A recent decision by the B.C. Court of Appeal may mean the Town of Osoyoos can’t proceed with a new bylaw designed to help fight drug production in local homes.
“How unfortunate,” said Osoyoos Mayor Stu Wells, about a ruling where the court found that entering a person’s premises without a warrant violates Section 8 of the Charter of Rights and Freedoms – protection against unreasonable search and seizure.
At its meeting on May 17, Osoyoos town council gave three readings to a “Safe Premises Bylaw,” formerly referred to as a “Controlled Substance Nuisance Bylaw.”
Town staff were instructed to prepare this bylaw by the previous council, explained a staff report by Janette Van Vianen, the Town’s corporate services director.
But it was a lengthy process requiring legal advice, as well as input from the building inspector, Osoyoos’s fire chief, the RCMP and Interior Health.
The bylaw deals specifically with safety matters that may be related to marijuana grow operations or amphetamine production.
Those matters can include bypass of an electricity, water or natural gas meter; vents that release exhaust within a building; the presence of hazardous substances; the visible accumulation of mould or an unauthorized alteration to a structure.
According to the Town’s bylaw, an inspector – which includes the fire chief, building inspector, peace officer, director of operational services, bylaw enforcement officer or another person named by council – may enter onto a property, including residential premises, to inspect and determine if there is compliance with this bylaw.
Then, action may be taken, including the posting of notice that the building is unsafe and may not be occupied.
Water service to the building may also be disconnected.
Breaking this bylaw, which includes occupying a building in contravention of the bylaw, will result in a penalty in the amount of between $2,000 and $10,000.
Each time the Town inspects a property, the owner will have to pay a fee of at least $500.
Required work to bring a residence up to compliance with the Town’s safety policies and all fees will need to be completed before notice will be removed and occupancy will be allowed.
The bylaw will also apply to rental properties, though if an owner reports the contravention to the Town within 24 hours of the discovery the fees may be waived.
But on May 20, a decision was handed down by the B.C. Court of Appeal, regarding a case between Surrey residents Jason Arkinstall and Jennifer Green, and the City of Surrey, British Columbia Hydro and Power Authority and the Attorney General of B.C.
The B.C. Civil Liberties Association also took part in the case, as an intervener.
The main issue was whether the provisions in the provincial Safety Standards Act, which authorize entering residential premises without a warrant for safety reasons, infringe the Charter.
The court decided entry without a warrant did indeed infringe those rights and freedoms.
“The highest court in B.C. has said this legislation is unconstitutional,” said Grace Pastine, litigation director of the B.C. Civil Liberties Association. “That means these searches are simply not legal.”
She said the court’s decision did not address or specify how warrants should be issued, or by who, but she said such warrants would need to be somehow approved by an independent process to ensure a search is justified.
“It’s a very good decision,” Pastine said. “We see this as a real victory.”
But Wells does not.
“I’m of the opinion the (B.C. Court of Appeal) is wrong,” he said. “It’s the war against drugs. The war against grow ops happening on your street.”
Wells said the decision to enter someone’s residence isn’t going to be taken lightly and it will have to be made on some very specific criteria – not just a slight increase in power use.
He said there is enough of a cushion built into the standards of reasonable electricity use to justify entry.
“You don’t go through huge spikes (of electricity use) without cause,” Wells said, adding he hopes the court’s decision gets challenged.
Barry Romanko, Osoyoos’s chief administrative officer, said staff and council would need to review the court’s decision before making comment on the future of Osoyoos’s new bylaw.
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