Regulatory search may require warrant

Arkinstall v. City of Surrey,  2010 BCCA 250, released yesterday, struck down parts of a provincial law that allowed safety inspectors to enter any home suspected of being a marijuana grow-op, ruling the legislation violates the Charter right to be free from unreasonable searches.  Generally regulatory searches are not subject to the requirement of judicial preauthorization.  Here, however, because of the significant intrusion on privacy the Court held a warrantless search to be impermissible.

 

Chief Justice Lance Finch wrote municipal officials need more than reasonable grounds to justify such a search and should be required to seek a proper warrant, in which they would have to show some evidence to support their belief that safety codes are being violated.

 

A link to the ruling and part of the decision is set out below:

 

http://tinyurl.com/29twggw

 

 

[68]         Individuals have a considerable expectation of privacy in their homes. In R. v. Tessling, 2004 SCC 67, Binnie J. stated:

 

22     The original notion of territorial privacy ("the house of everyone is to him as his castle and fortress": Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140, per Cory J.: "[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'"; R. v. Feeney, [1997] 2 S.C.R. 13, at para. 43), in diluted measure, in the perimeter space around the home (R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223, at pp. 237 and 241; R. v. Wiley, [1993] 3 S.C.R. 263, at p. 273), in commercial space (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 517-19; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at pp. 641 et seq.), in private cars (Wise, supra, at p. 533; R. v. Mellenthin, [1992] 3 S.C.R. 615), in a school (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 32), and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at p. 877). Such a hierarchy of places does not contradict the underlying principle that s. 8 protects "people, not places", but uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy.

 

[69]         There is a “hierarchy of places”, atop of which is the home. Importantly for our purposes, the hierarchy decreases in the level of expected privacy as one moves from the home to the perimeter space around the home, to commercial space, to private cars, to schools, and then, at the bottom, to prisons. The expectation of privacy in the context of the inspections at issue on this appeal is higher than that in the contexts of R. v. Grant, [1993] 3 S.C.R. 223 (perimeter of house), Thomson (commercial space) and McKinlay (commercial space). Bichel involved a private residence; however, as the appellants note, it was only after Bichel that the Supreme Court of Canada developed a nuanced hierarchy of privacy in which privacy in the home is second only to personal privacy. 

 

[70]         The expectation of privacy in relation to the home exists despite the fact that an individual can be said to have a lower expectation of privacy in relation to a regulated thing in the home, such as an electrical panel or electrical wiring. For example, as Wilson J. stated in McKinlay at 649:

 

… Thus, when the tax officials seek entry onto the private property of an individual to conduct a search or seizure, the intrusion is much greater than a mere demand for production of documents. The reason for this is that, while a taxpayer may have little expectation of privacy in relation to his business records relevant to the determination of his tax liability, he has a significant privacy interest in the inviolability of his home. [Emphasis added.]

 

[71]         In McKinlay, Wilson J. noted that a document production order was much less intrusive than tax officials going onto private property to collect those same documents. She reasoned that while there is a diminished expectation of privacy in those documents, there is a considerable expectation of privacy in relation to business premises and residences. As a result, when the regulated thing is obtained or found only after going into or through things or places that possess a high expectation of privacy, the search will be intrusive.

 

[72]         Similarly, in Thomson, La Forest J. cited the above passage from McKinlay before stating at 521:

 

… I would say that while a business, be it incorporated or unincorporated, may have little expectation of privacy in relation to its business records relevant to an investigation under the Act, it has a significant privacy interest in the inviolability of its business premises. It must be added that its owners and managers also have a significant privacy interest in the inviolability of their private homes, since there was nothing in s. 10 to restrict the Director's powers of search to business premises. [Emphasis added.]

 

[73]         While a safety inspector may be looking for an electrical panel or electrical wiring in which the individual has a diminished expectation of privacy, if doing so means intruding into the individual’s home where there is a high expectation of privacy, such an inspection will be intrusive. This conclusion is not affected by the Electrical Tariff entered into between BC Hydro and its customers. BC Hydro customers receive electrical power from BC Hydro in accordance with the Electrical Tariff. While it is accepted that there is a diminished expectation of privacy with respect to entry of BC Hydro employees onto a customer’s property, and with respect to the customer’s hydro consumption records (see R. v. Bourque, 2001 BCSC 621, and R. v. Benham, 2003 BCCA 341), I am of the opinion that the Electrical Tariff does not significantly lower an individual’s expectation of privacy in relation to the interior of their homes. 

 

[74]         Not only is there a high expectation of privacy in this case, but the inspections constitute a considerable intrusion. The impugned inspections require a full inspection of the home. There is no way to target an inspection, and the violations being searched for are not easily found. The appellants correctly state that:

 

96     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.

 

[75]         Counsel for the City of Surrey conceded in oral argument that the inspections are very intrusive, and that it is necessary for the inspector to go through the entire house looking through every room, attic, basement, crawl space, and closet.

 

[76]         These inspections expose every room of an individual’s home, to borrow La Forest J.’s language in Thomson, to the “chilling glare of inspection”. The intrusiveness of these inspections far exceeds that of the production order for documents in McKinlay and Thomson. Similarly, the impugned inspections are far more intrusive than those in Bichel, which this Court described as minimally intrusive. In Bichel, while the inspections occurred in the home, the inspections involved, for example, looking to see if a non-compliant extra suite existed. The scope of the inspection required to fulfill such a purpose is narrow. In effect, the inspector could target the search and determine readily whether or not there was a violation. That form of inspection is, however, very different from inspecting each and every space of a home to determine whether or not there are electrical safety risks associated with a grow-operation.