Court Imposes New Warrant Requirement for Inspections

Arkinstall v. City of Surrey

By
James Yardley
Barrister & Solicitor
jgy@murdymcallister.com
May, 2010

What the Court Decided

The recent decision of the BC Court of Appeal in Arkinstall v. City of Surrey (2010 BCCA 250) is potentially significant for inspections done by local governments.  The Court unanimously ruled that provisions of the Safety Standards Act (“SSA”) used to justify warrantless inspections of residential premises for electrical safety risks related to grow-ops were contrary to section 8 of the Charter of Rights and Freedoms, which provides that everyone has the right “to be secure from unreasonable search or seizure”.  As a result, the provisions are not enforceable in a residential inspection without a warrant.  While the Court said the decision only applies to SSA inspections in the circumstances noted above, the decision clearly has broader implications for local government inspections generally.


The Reasons for the Court’s Decision


The decision was an appeal of a BC Supreme Court decision (2008 BCSC 1419) in which it was held that (1) police could not as a matter of course enter residential premises during SSA inspections, but had to have sufficient grounds to do so, and (2) prior authorization, such as by warrant, was not required for the underlying inspections.  The latter ruling was the subject of the present appeal.  The Supreme Court’s decision was partly based on the case R. v. Bichel, in which our Court of Appeal held that a search warrant was not required for the inspection of a residence for an unlawful suite under an administrative regulation (such as a bylaw) because the inspection involved a minimal intrusion into privacy, involved no seizure of property and was reasonably expected by the community. 

In contrast, the Court of Appeal in Arkinstall concluded that the Bichel approach was not appropriate for inspections under the SSA because:

·   the expectation of privacy for the residents was high;

·   the inspection process was “very intrusive” (by its nature it involved a thorough search of the home, including of crawl spaces), and exposed each room to what the Court described as the “chilling glare of inspection”; and,

·   there was potential for stigma associated with the process.  This was partly because the searches targeted residences where grow-ops were suspected, putting  a “spectre of criminality” on the process, and was contrasted with the “targeted” inspection for a non-compliant suite in Bichel.

The Court held that a warrant could be sought, noting that the SSA has a 48 hour notice provision during which this could occur, and that such a warrant only requires that “reasonable grounds” be shown that the condition in issue may exist.


Implications of the Decision


The Court of Appeal did not over-rule Bichel, but instead held that Bichel had “limited application” to SSA residential inspections.  The differences in the outcomes between Bichel and Arkinstall reflect the significant developments in the law on section 8 of the Charter of Rights and Freedoms since Bichel was decided in 1986.  That said, some of the reasoning used by the Court of Appeal to require a warrant in Arkinstall, but not in Bichel, remains debateable.  For example:


·   There would be a similar expectation of privacy by residents in each case.

·   While a search under the SSA may be intrusive, the “targeted” search of the type sought in Bichel can also be intrusive.  Indeed, the Court of Appeal seems to have equated all searches in places where there is a high expectation of privacy (i.e., a residence) with a search that is intrusive, effectively combining the first two factors into one (Decision, paras. 70-73).


·   While there may be greater stigma associated with SSA searches for grow-ops than with bylaw enforcement searches for unlawful suites, much of whatever stigma exists is related to the reasons for and manner of the search.  As an inspection becomes more “regulatory” in manner, and police are not present at the residence (reflecting the outcome of the Supreme Court decision in Arkinstall), the level of stigma should be reduced accordingly


Implications of the decision in Arkinstall for local governments include the following:


·   The decision has been widely reported in the media, and there may be a broadly held belief among members of the public that warrants are now required for residential inspections generally.  Notwithstanding the Court’s comments that the decision only applies to residential inspections under the SSA for grow-op electrical hazards, local governments should expect challenges of notices and requests for inspections, and we believe the decision contains language that gives it a potentially broader application.  Thus, staff should consider whether to seek an entry warrant before inspecting the interior of a residence for bylaw enforcement purposes.  Unfortunately, the decision does not provide a “bright line” test of when a warrant is required, but leaves the matter uncertain and dependent on the underlying facts.  The factor about which the greatest uncertainty is likely to exist is the presence of stigma, the test for which is not clearly defined by the Court other than to say it increases when the resident is “suspected of committing an offence”.  The problem with that test is that it could conceivably apply whenever an inspection occurs in response to a complaint (i.e., an “investigation”, as opposed to a non-complaint based “inspection”), and seems to be at odds with the reasoning in Bichel. 


·   The decision highlights the importance of the manner by which inspections are done.  The more “police-like” the manner, the more likely a warrant is needed.


·   Enforcement staff should consider in advance the reasons for inspecting a residence, and keep appropriately detailed records supporting the decision.


·   The inspection of a residence should be “targeted” if possible, rather than including locations unlikely to be relevant to the subject of the inspection.


·   A warrant is not required if a resident consents to the inspection, which probably remains the preferred means by which to undertake inspections.  However, there is considerable law on what “true” consent consists of.  For example, staff should ensure that whatever consent is given is informed and cannot be seen to have been obtained by coercion.  It is often desirable for confirmation of consent to be obtained in writing.


It is not known if an appeal to the Supreme Court of Canada will be sought.