CANNABIS CULTURE – The Supreme Court of Canada has ruled that police can obtain household power records and attach digital recording devices to suspected grow homes to track electricity usage patterns as part of pre-warrant investigations.
On Wednesday, November 24, Canada’s Supreme Court ruled 7-2 to overturn an earlier ruling by the Alberta Court of Appeal concluding that police had violated the rights of Daniel Gomboc when, in 2007, after smelling the scent of marijuana coming from his house (while investigating an unrelated issue in his neighborhood), they installed a “digital recording ammeter” (DRA) with the help of the power company.
“I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way,” the court of appeal said in a 2-1 ruling.
Wednesday’s Supreme Court decision overturned that ruling and found that police did not breach the constitutional guarantee against unreasonable search and seizure because the information provided by the power company, Enmax, didn’t include personal information about Gomboc’s lifestyle.
“The DRA is a technique that reveals nothing about the intimate or core personal activities of the occupants,” Supreme Court Justice Marie Deschamps wrote for the majority. “It reveals nothing but one particular piece of information: the consumption of electricity.”
Deschamps made clear that Canadians can expect some level of privacy in the home, but that privacy has limits.
“As is true of all constitutional rights, the Charter’s protection of territorial privacy in the home is not absolute,” she wrote. “The Constitution does not cloak the home in an impenetrable veil of privacy. To expect such protection would not only be impractical; it would also be unreasonable.”
Police are already permitted to obtain electricity records, but the DRA device is a new addition that, according to press reports, gives authorities “accurate information on the amount of utility usage in the various rooms of the house.”
Daniel Gomboc was arrested with over 165 kilograms of cannabis and convicted of growing and trafficking.
In 2009, the Alberta appeal court reversed the decision, ordering a new trial for Gomboc, saying the power company had been “co-opted” by police for “a form of surreptitious electric surveillance”. That decision was overtuned Wednesday.
Though four of the Judges agreed with Deschamps, three others sided with an alternative opinion written by Justice Rosalie Abella, which acknowledged privacy concerns but supported the conviction.
Chief Justice Beverley McLachlin and Justice Morris Fish were the only full dissenters, warning that the use of DRAs by police without warrants is “an incremental but ominous step toward the erosion of the right to privacy.”
This isn’t the first time the court has ruled to limit privacy in Canada.
In December 2009, the court found Canadians do not have the right to privacy of their curbside garbage. Police, since 2004, have also been allowed to use “infra-red” scanning devices to make searches.