The right to privacy in one's home is not absolute, the Supreme Court of Canada said Wednesday in a ruling that allowed police to conscript a Calgary power company to collect details of a customer's electricity use to determine if he was growing marijuana.

In a sharply divided decision, the court split into three camps on whether it violates a consumer's constitutional right to privacy to force commercial service providers to help out police when they do not have search warrants.

"The Constitution does not cloak the home in an impenetrable veil of privacy," Justice Marie Deschamps wrote in the lead opinion.

"To expect such protection would not only be impractical, it would also be unreasonable."

In a strong dissent, Chief Justice Beverley McLachlin and Justice Morris Fish warned the court against taking an "incremental but ominous step toward the erosion of the right to privacy."

The two judges, describing the home "as the most private of dwellings," concluded that "a reasonable person" would not expect that details of electricity use, which can detect such things as when a person routinely goes to bed and does chores, should be handed over to police without a judge's prior approval.

"When we subscribe for cable services, we do not surrender our expectation of privacy in respect of what we access on the Internet, what we watch on our television sets, what we listen to on our radios, or what we send and receive by e-mail on our computers," wrote the dissenting judges.

"Likewise, 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."

The latest decision overturns an Alberta Court of Appeal victory for Daniel Gomboc and restores his earlier convictions for growing and selling marijuana.

Calgary police, while investigating another matter in Gomboc's neighbourhood in 2004, detected the smell of a marijuana grow operation and noticed condensation on his windows and moisture pouring from ice-caked vents. Unlike other homes nearby, there was no snow on his roof.

The police then asked Enmax, Gomboc's power supplier, to install a "digital recording ammeter" (DRA) to obtain a detailed graph printout of five days of power consumption at his home. The officers used the revealing information to obtain a search warrant.

Police seized 165 kilograms of bulk marijuana and another 206 grams of processed, bagged marijuana, and Gomboc was later convicted of growing and trafficking pot.

© Copyright (c) The Vancouver Sun

"The Constitution does not cloak the home in an impenetrable veil of privacy" does not sound awesome. Maybe I've been watching too much Max Headroom.


25 November 2010

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