Coun. Stacey weighs in on warrant-less entry for grow ops
By Nelson Daily Editor
By Timothy Schafer, The Nelson Daily
Like a bad weed, the topic of ferreting out grow operations in the city and circumventing the court warrant system grew out of the last city council meeting.
Coun. Marg Stacey felt the wording of “illegal activities” in the recently adopted Fire Regulation and Prevention Bylaw could open the door to civil liberty infractions regarding marijuana grow operations.
Because of a successful court appeal in Surrey — that said entry and inspection of homes without a warrant violated section eight of the Charter of Rights and Freedoms — earlier this year, Coun. Stacey has had her eye on all of the bylaws the City is updating and rewording.
When the Fire Regulation and Prevention Bylaw came up in City council Oct. 4, she had questions for Nelson Fire and Rescue Chief Simon Grypma.
“Would you go in (to a home) just because the police told you there was something illegal going on in there?” she said. “I understand the spirit of this with safety, but we also have to understand how much this will be worthless if it is unwarranted.”
Under the Safety Standards Act, within 48 hours after posting a notice a fire official and electrical inspector can enter a residence if there is believed to be a grow operation in the residence. For police to enter they would need a warrant, and would not be able to enter within 48 hours.
“Those are legitimate concerns, but you know, getting the warrant, that’s no big deal,” she said. “I am just watching carefully that we don’t step over the line on warrant-less entry, and actually end up put our inspectors in any kind of danger.”
Chief Grypma said the bylaw was strictly related only to fire. Under the Fire Services Act, fire officials have the right to enter to deal with hazards, associated hazards and fires, or hazards to life and property.
“That is all it is,” he said.
“This is really close to the line,” she said about the bylaw. “Is this language directly from the Fire Act?”
Grypma said the Fire Act outlines the fact the fire department has the right to enter anything — homes, vehicles — they deem to be a public hazard.
“We have that right to enter, whatever the issue may be,” he said, whether that be related to the production of illicit substances or not.
Simon’s answer — that they could go in after 48 hours if there was illegal activity — did not directly assail Coun. Stacey’s concern.
“I was wondering if (the bylaw) was dovetailing too closely to make it possible for something to come up in a later bylaw that we would have a problem with,” she said later. “I just don’t want us to get on the wrong side of civil liberties.”
The Nelson Police Department is developing a new bylaw that could circumvent the Controlled Drug and Substances Act criminal code, resulting in the removal of the operations but incurring no court time or criminal charges.
In May of this year, NPD Inspector Henry Paivarinta said the province’s Safety Standards Act would be the basis of the proposed bylaw to ferret out grow operations in the city, even though a Court of Appeal in Surrey said entry and inspection of homes without a warrant violates section eight of the Charter of Rights and Freedoms.
The Safety Standards Act allows municipal electrical and fire inspectors to demand entry into anyone’s home to do an electrical safety inspection if they suspect the home is being used for marijuana-growing.
Insp. Paivarinta said the appeal ruling that struck down provisions of a provincial law in Surrey will only add administrative process to the proposed bylaw in Nelson, and NPD and city council will still be going ahead with passing it into legislation.
