Electricity usage records are now effectively the property of the police in Canada — and they don’t even need a warrant. Law enforcement did not overstep their powers when they asked a Calgary electricity company to spy on one of its customers by installing a special tracking device to find if he was growing marijuana, the Supreme Court of Canada ruled on Wednesday.
“As is true of all constitutional rights, the Charter’s protection is not absolute,” Madam Justice Marie Deschamps wrote for the majority, as she sold out the privacy rights of Canadians. “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.”
“The DRA is a technique that reveals nothing about the intimate or core personal activities of the occupants,” Deschamps wrote for the majority. “It reveals nothing but one particular piece of information: the consumption of electricity.”
Police attached a DRA to Gomboc’s home in 2007. The DRA provided police with a pattern of electricity usage consistent with a marijuana grow operation, reports Brian Lilley at the Toronto Sun
Combined with “other observations” police made of Gomboc’s home, they obtained a search warrant and found hundreds of marijuana plants.
Gomboc was convicted of two cannabis-related offenses, but he appealed them, saying that using the DRA without first obtaining a search warrant was an illegal search of his house. The Alberta appeal court ruled the use of the monitoring device was a search.
But the Supreme Court disagreed, restoring Gomboc’s conviction for growing and selling cannabis.
However, the two minority judges — Madam Chief Justice Beverley McLachlin and Mr. Justice Morris Fish — expressed “deep concern” about allowing police to enlist utilities and service providers as spies for law enforcement, reports Kirk Makin at The Globe And Mail
Fish and McLachlin called the use of DRAs without warrants “an incremental but ominous step toward the erosion of the right to privacy.”
“When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by email on our computers,” they said in a minority opinion.
“Likewise, when we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization,” they wrote. “We authorize neither undercover officers nor utility employees acting as their proxies to do so.”
Gomboc was arrested after police raided his Calgary home and found 363 pounds of growing marijuana, seven ounces of processed and bagged marijuana, and other items they claimed “indicated a marijuana grow operation.”
The police claimed they had smelled a marijuana grow operation in Gomboc’s neighborhood in 2004, while investigating another matter. They also said they noticed condensation on his windows and moisture pouring from ice-caked vents. Unlike other nearby homes, there was no snow on Gomboc’s roof.
The cops then asked the local electricity company, Enmax, to install a DRA to get a detailed graph printout of five days of power consumption at Gomboc’s house. The officers used this information to obtain a search warrant.
The Alberta Court of Appeal, in a 2-1 ruling, had said that, by getting information from the local electricity utility, police had violated Gomboc’s reasonable expectation of privacy.
The ruling is in keeping with other recent, distressing decisions from Canada’s Supreme Court dealing with police powers and privacy rights.
The court ruled last December that there’s no right to privacy of your curbside garbage, and in 2004, the court found that it is not unconstitutional for police to conduct aerial infrared searches, using heat detectors to detect homes that might be used to grow marijuana.