Pubdate: Wed, 16 Aug 2017
Source: Hamilton Spectator (CN ON)
Copyright: 2017 The Hamilton Spectator
Author: Nicole O'Reilly
Page: A1


Horizon gave police evidence of high electricity usage

A HAMILTON COUPLE caught with a commercial marijuana grow-operation in
their basement had their charter rights violated when a hydro company
shared evidence of their high power usage with police, but that
privacy breach wasn't serious enough to overturn their drug
trafficking convictions, the Ontario Court of Appeal has ruled.

The case highlights questions about when and how police can access
private data. One legal expert says it could have implications on how
police access such data.

However, both the hydro utility and Hamilton police say they no longer
share or accept such data informally, and now require production
orders - legal documents that require companies to hand over private

That wasn't the case when police searched the Victoria Avenue South
home of Maria Del Carmen Orlandis-Habsburgo and Edwin Robert
Lefrancois in April of 2012. That search was unconstitutional,
according to the decision released last week. The warrant used was
based on data voluntarily shared with police by Horizon Utilities -
now Alectra Utilities - that showed high usage consistent with a grow-op.

However, their criminal convictions stand. They were found guilty of
producing marijuana, possession of marijuana for the purpose of
trafficking and possession of property worth more than $5,000 obtained
through crime.

"While the appellants had a reasonable expectation of privacy ... the
data and the inferences available from it cannot be said to include
core biographical information, or information that reveals intimate
and person details of a person's lifestyle," the decision reads.

"The information was capable of revealing one detail - the appellants
were involved at a commercial level in the growing and sale of marijuana."

A lower court previously ruled their charter rights were not violated
for this reason. However, the panel of three judges in the Ontario
Court of Appeals, found this does constitute a charter breach, but its
impact on the convicted pair was "less serious" than if more intrusive
data had been shared.

They also found the evidence shared by Horizon was "completely
reliable, virtually determinative of culpability" in a grow-operation
existing in the home.

"The appellants' conduct posed a significant and ongoing risk to those
who lived around the appellants' residence. Society obviously has a
strong interest in prosecuting whose who, for money, choose to engage
in a dangerous criminal activity that puts others around them at risk."

The case does not set any important precedent on the exclusion of
unconstitutionally-obtained evidence, said Hamish Stewart, University
of Toronto law professor. But it does challenge when police need
judicial approval to access data.

"The case is ... an important precedent on the issue of when the
police require a warrant to obtain information from a third party," he

The judges ruled that at the time of this drug case it was reasonable,
based on case law, for police to presume they were entitled to examine
the data provided by Horizon. But that has now changed.

It also notes that Horizon used to have an informal agreement to share
data with police, but that while this case was before the courts that
had changed, and police were now required to get production orders
before personal data could be shared.

John Friesen, Alectra Utilities spokesperson, said that policy remains
in place and production orders are still required for police to access
personal data.

Hamilton police are now required to submit production orders for
access to personal utilities data.
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