Arkinstall et al. v. Surrey (City) et al., 2010 BCCA 250

• Judge: Finch, C.J.B.C., Low, Frankel, Tysoe and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 20, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 250;(2010), 287 B.C.A.C. 183 (CA)

Arkinstall v. Surrey (2010), 287 B.C.A.C. 183 (CA);

    485 W.A.C. 183

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. MY.057

Jason Cyrus Arkinstall and Jennifer Aline Green (appellants/petitioners) v. City of Surrey, British Columbia Hydro and Power Authority and Attorney General of British Columbia (respondents/respondents) and British Columbia Civil Liberties Association (intervenor)

(CA036620; 2010 BCCA 250)

Indexed As: Arkinstall et al. v. Surrey (City) et al.

British Columbia Court of Appeal

Finch, C.J.B.C., Low, Frankel, Tysoe and Groberman, JJ.A.

May 20, 2010.

Summary:

The homeowners were flagged because consumption records showed unusually high energy consumption. The Safety Standards Act (SSA) authorized the warrantless entry and inspection of residential premises, upon reasonable grounds, for the regulatory purpose of inspecting electrical systems for safety risks that might be related to marijuana grow operations. The homeowners refused the inspectors entry, as they insisted on being accompanied by police officers who did not have a warrant. The municipality disconnected the power. The homeowners sought a variety of remedies, including a declaration that the provisions of the SSA authorizing warrantless entry violated s. 8 of the Charter.

The British Columbia Supreme Court, in a judgment reported [2008] B.C.T.C. Uned. C81, held that "the provisions of the SSA authorizing electrical safety inspections of residences do not violate s. 8. Such inspections are of a regulated service that can present a danger to both occupants of a residence and their neighbours. They are driven by safety, as opposed to criminal law, objectives, and require both reasonable grounds and notice to the occupant. In my view, the SSA strikes a reasonable balance between administrative efficiency and individual privacy, such that its provisions authorizing electrical safety inspections are reasonable for the purposes of s. 8 of the Charter. However, in the circumstances of the present case, I find that the police did not have authority, either pursuant to statute or at common law, to enter and search the petitioners' residence in aid of the EFSI Team inspection without a warrant. Accordingly, the disconnection of electrical power to the petitioners' residence consequent upon their refusal to permit the police entry was unlawful." The homeowners appealed the finding that the challenged provisions of the SSA did not violate s. 8 of the Charter and that the inspectors had reasonable and probable grounds to seek entry under the SSA.

The British Columbia Court of Appeal allowed the appeal. The court held that "ss. 18(1) and 19.3(1) of the SSA violate s. 8 of the Charter to the extent that they authorize the warrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems for safety risks that may be related to grow-operations". Although the SSA was in pith and substance regulatory (not criminal), homeowners had a high reasonable expectation of privacy and the inspections were very intrusive (inspection of entire interior of home). Further, while regulatory searches did not attract the same stigma as a criminal law search, SSA searches gave rise to more stigma than generally expected from other regulatory inspections, as they were targeted searches of homes suspected of concealing marijuana grow operations. Since 48 hours notice was required by the SSA, there were no exigent circumstances and was no reason for not obtaining an administrative warrant.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1560.1 ].

Civil Rights - Topic 1560.1

Property - Land - Search by public utility (exterior and interior search) - Homeowners were flagged because of unusually high energy consumption - The Safety Standards Act (SSA) authorized the warrantless entry and inspection of residential premises, upon reasonable grounds, to inspect electrical systems for safety risks that might be related to marijuana grow operations - The homeowners refused the inspectors entry, as they insisted on being accompanied by police officers who did not have a warrant - The municipality disconnected the power - The homeowners sought a declaration that the provisions of the SSA authorizing warrantless entry violated s. 8 of the Charter - The trial judge held that "the provisions of the SSA authorizing electrical safety inspections of residences do not violate s. 8. Such inspections are of a regulated service that can present a danger to both occupants of a residence and their neighbours. They are driven by safety, as opposed to criminal law, objectives, and require both reasonable grounds and notice to the occupant. ... the SSA strikes a reasonable balance between administrative efficiency and individual privacy, such that its provisions authorizing electrical safety inspections are reasonable for the purposes of s. 8 of the Charter." - The British Columbia Court of Appeal disagreed - The court held that "ss. 18(1) and 19.3(1) of the SSA violate s. 8 of the Charter to the extent that they authorize the warrantless entry and inspection of residential premises for the regulatory purpose of inspecting electrical systems for safety risks that may be related to grow-operations" - Although the SSA was in pith and substance regulatory (not criminal), homeowners had a high reasonable expectation of privacy and the inspections were very intrusive (inspection of entire interior of home) - While regulatory searches did not attract the same stigma as a criminal law search, SSA searches gave rise to more stigma than generally expected from other regulatory inspections, as they were targeted searches of homes suspected of concealing marijuana grow operations - Since 48 hours notice was required by the SSA, there were no exigent circumstances justifying a warrantless search and there was no reason not to obtain an administrative warrant - See paragraphs 46 to 94.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1560.1 ].

Civil Rights - Topic 1650.3

Property - Search and seizure - Warrantless search and seizure - Exigent circumstances - [See Civil Rights - Topic 1560.1 ].

Public Utilities - Topic 1003

Powers - General - Power to inspect customer's premises - [See Civil Rights - Topic 1560.1 ].

Cases Noticed:

R. v. Bichel (1986), 4 B.C.L.R.(2d) 132 (C.A.), dist. [para. 4].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 27].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 51].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 52].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 56].

R. v. McKinlay Transport Ltd. and C.T. Transport Inc., [1990] 1 S.C.R. 627; 106 N.R. 385; 39 O.A.C. 385, refd to. [para. 58].

R. v. Tessling (W.) (2004), 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 68].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 69].

R. v. Bourque (J.L.J.), [2001] B.C.T.C. 621; 2001 BCSC 621, refd to. [para. 73].

R. v. Benham (M.J.) (2003), 184 B.C.A.C. 29; 302 W.A.C. 29; 2003 BCCA 341, refd to. [para. 73].

Statutes Noticed:

Safety Standards Act, S.B.C. 2003, c. 39, sect. 18(1)(c), sect. 18(1)(d) [para. 20]; sect. 19.1, sect. 19.2, sect. 19.3, sect. 19.4 [para. 22]; sect. 38 [para. 20].

Counsel:

J.J. Arvay, Q.C., for the appellants;

J.J. McIntyre and P. Huynh, for the respondent, City of Surrey;

R.A. Skolrood and L.E. Duke, for the respondent, British Columbia Hydro and Power Authority;

C. Jones and K. Wolfe, for the respondent, Attorney General of British Columbia;

B.B. Olthuis, for the intervenor, British Columbia Civil Liberties Association.

This appeal was heard on March 3-4, 2010, at Vancouver, B.C., before Finch, C.J.B.C., Low, Frankel, Tysoe and Groberman, JJ.A., of the British Columbia Court of Appeal.

On May 20, 2010, Finch, C.J.B.C., delivered the following judgment for the Court of Appeal.