Hamilton grow-op couple still guilty, despite charter issue
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 data.
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 said.
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.