Court rules rights violated in grow-op case

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 basement.

Horizon Utilities, using customized software, noted a pattern of electricity use in the residence that was consistent with the operation of a growop. 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 pair.

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 data.

“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.