Pubdate: Wed, 16 Aug 2017
Source: Toronto Star (CN ON)
Copyright: 2017 The Toronto Star
Author: Betsy Powell
Page: A6


Police needed a warrant for hydro records turned over by local
utility, ruling says

The Ontario Court of Appeal has ruled that police investigating a
suspected marijuana grow-op in a Hamilton home needed a search warrant
to obtain hydro records from a local utility company.

The landmark decision sends a clear message to law enforcement
agencies and hydro companies, says Toronto cannabis lawyer Paul Lewin.
He argued the case on behalf of appellants Maria Del Carmen
Orlandis-Habsburgo and Edwin Robert LeFrancois.

"Going forward, police must obtain a warrant or other judicial
authorization in order to search and seize hydro consumption records
with respect to suspected residential cannabis grow operations," Lewin
said in a statement.

Despite the fact the court did not exclude the marijuana and cash
seized - so the convictions for possession for the purpose of
trafficking and possession of proceeds of crime were upheld - the case
is nonetheless a positive development for cannabis growers and privacy
advocates, Lewin said Tuesday.

"We have an expectation of privacy in all our most private places,
like our homes, our briefcases . . . our cars," Lewin said.
Electricity usage records, which reveal "a lot about your lifestyle,"
didn't have an expectation of privacy, "and now it does."

The defendants, whom Lewin described as a medicine woman and
Indigenous activist, rented a home in Hamilton with a grow-op in the

Horizon Utilities, using customized software, noted a pattern of
electricity use in the residence that was consistent with the
operation of a grow-op. Horizon forwarded the information to police,
the court ruling says.

Ontario utilities have routinely turned over such information without
requiring a warrant. But Horizon went further in this case, Lewin said.

When police began an investigation, including surveillance, they
requested additional information about ongoing electricity use at the
home and at neighbouring residences. The utility voluntarily complied.

Police applied for a warrant to search the residence relying, in part,
on energy consumption information supplied by Horizon.

Police found a grow-op in the basement, seized $23,000 and charged the

A judge convicted them in 2014 after finding the defendants' rights
were not violated under the Charter of Rights and Freedoms.

But three judges of the Court of Appeal found their rights against an
unreasonable search and seizure were violated when Horizon shared the
information with police, which launched the investigation.

The province's high court rejected the Crown argument that the
appellants did not have a reasonable expectation of privacy in the

"The examination and use of the data by the police was not authorized
by law, and therefore could not be reasonable within the meaning of s.
8 of the Charter," Justice David Doherty, writing on behalf of the
panel, wrote in a decision released Aug. 11.

"The appellants' right to be free from unreasonable search and seizure
was breached."

The judges, however, determined the evidence should not be excluded
because police might have believed in good faith that they were
entitled to the energy consumption data without a warrant.

Once pot is legal next year, Canadians will be able to grow up to four
plants, while medical growers are allowed 12 plants. Even if
authorities suspect people are exceeding those limits, "now, no one
can spy on them, they are private in their home," Lewin said.
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