Nov 24 2010
OTTAWA - A badly split Supreme Court of Canada has restored the conviction of a Calgary man found guilty of running a marijuana grow op in 2004.
The court ruled 7-2 to overturn an Alberta Court of Appeal judgment that ordered a new trial for Daniel Gomboc.
The provincial appeal court threw out the guilty verdict on grounds that police violated Gomboc's privacy rights. Officers had arranged for the local utility company to install a digital recording ammeter device to monitor his electricity consumption, without getting a warrant.
The recorder produced a consumption graph indicative of the power cycles typically seen in a grow op. Using this, the police got a warrant, entered the house and seized more than 165 kilograms of marijuana.
Gomboc was convicted of possession with intent to traffic and production of marijuana.
The Supreme Court ruling restored the conviction, but without a clear set of reasons.
Four justices said the monitoring device wasn't an invasion of privacy. Three said it was probably an invasion, except for a quirk of Alberta's utility regulations.
The regulation in question allows a utility to supply consumption data to a police investigation unless the customer specifically asks that the records be kept confidential.
Gomboc made no such request to Enmax, his electricity supplier.
Writing for the four, Justice Marie Deschamps said the use of the recording device was not an unreasonable invasion of privacy requiring a search warrant.
"It reveals nothing about the intimate or core personal activities of the occupants," she wrote. "It reveals nothing but one particular piece of information: the consumption of electricity."
She noted that earlier court decisions said people can't expect privacy to cover the garbage pail at the curb and that using an infrared device to look at heat patterns in a house doesn't violate privacy rights.
"Disclosing information about energy consumption is not invasive nor revelatory of the respondent's private life."
Justice Rosalie Abella, writing for the three justices, disagreed with Deschamps conclusion that the recording device was not revelatory.
Abella said it did reveal information about activity inside the home.
"The information is, therefore, personal information."
However, she said the provincial utility regulation was the key to the case because it specifically allowed Enmax to make consumption data available to police unless the customer objected.
"The fact that the customer can request that his or her information be protected means essentially that under this regulation, the customer is presented with the unrestricted ability to control the expectation of privacy in his or her relationship with Enmax," she wrote. "A request by a customer to prohibit disclosure of customer information revokes the legislative authority for its disclosure.
"Mr. Gomboc made no such request, yet urges the court to treat his expectation of privacy as if he had."
Chief Justice Beverley McLachlin and Justice Morris Fish jointly wrote a sharp dissent.
They called the case "an incremental but ominous step toward the erosion of the right to privacy" in the Charter of Rights.
"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."