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The Supreme Court of Canada has carved a chunk out of the right to personal privacy, 
concluding that police may seize electricity-use records as part of a criminal investigation.

  Back To Canada’s Main Section Start Page





Wednesday’s decision exposed a sharp fault line on a court that tends to speak unanimously.  One faction sided strongly with law enforcement, arguing that there is no absolute right to privacy.  The dissenting judges raised fears that utilities are being turned into spies and could be conscripted into turning over more and more personal information.

"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," Chief Justice Beverley McLachlin and Mr.  Justice Morris Fish said.

"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," they said.

But the majority dismissed their warnings as a misguided and extreme reaction to a distinctly minor sacrifice of personal privacy.

"The Constitution does not cloak the home in an impenetrable veil of privacy," Madam Justice Marie Deschamps wrote for the majority.  "To expect such protection would not only be impractical, it would also be unreasonable."

The decision overturned a 2-1 Alberta Court of Appeal decision and reinstated marijuana producing and trafficking convictions against Daniel James Gomboc of Calgary.  Mr.  Gomboc was arrested after police raided his house and found a grow operation and 165 kilograms of bulk marijuana.

Police became suspicious about Mr.  Gomboc in 2004, based on observations that included condensation, steam and covered windows at his home.  They detected an odour of marijuana in the air even beyond his property line.

Mr.  Lomboc’s utility records were obtained using a digital recording ammeter, a device that utilities can attach to power lines to provide an intricate measure of how much power is being consumed in various parts of a home.

Judge Deschamps noted that previous Supreme Court decisions have concluded that police can inspect electricity bills, obtain evidence from garbage that has been put out for disposal, or use special technology to detect excessive heat flowing from a residence.

"It would be a strange world if the police could have access to the electricity billing which yields less accurate information, but not to DRA data for the very reason that they are more accurate," Judge Deschamps said.  "Canadians would lose the benefit of this technology and would be exposed to more intrusive investigation methods."

David Rose, a lawyer who argued the case for the Canadian Civil Liberties Association, called the ruling a disappointment.  "If you believe that the police should be able to get minute-to-minute hydro usage from your home without your consent and for the purpose of ‘just checking’ to see if you are running a grow-op, then you will like this case," he said. 

Pubdate: Thu, 25 Nov 2010
Source: Globe and Mail (Canada)
Copyright: 2010 The Globe and Mail Company