Proactive disclosure: The author of this piece works at Lewin Sagara LLP, the firm representing the defendants in this matter.
The Ontario Court of Appeal has ruled this week that police must obtain a search warrant when they are seeking hydroelectric records from utility companies of customers in the case of suspected residential marijuana grow operations.
The defendants in the case had rented a home in the Hamilton, Ontario area. An employee of their energy utility provider, Horizon Utilities, detected through custom software that a pattern of electricity use in the residence appeared to be consistent with a grow operation. While Horizon voluntarily disclosed energy consumption data to law enforcement, the police later requested additional information from Horizon without a warrant or judicial authorization.
The case unfolded in the Court of Appeal after the defendants appealed a lower court decision that found that such a seizure was not a violation of Charter rights. Reversing course, the three judge panel at the Court of Appeal found that the defendants’ section 8 Charter rights were violated when Horizon Utilities shared energy consumption information with law enforcement. The panel found that for the purposes of determining constitutionality, the police investigation began when Horizon provided this information.
“I conclude that 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 Doherty, writing on behalf of the panel, concluded in his written decisions released August 10, 2017.
The court case was not a complete win for the defendants, however. They had sought to challenge the constitutionality of various privacy laws and regulations, which the panel denied. And while Justice Doherty found that the search violated the section 8 “search and seizure” Charter rights of the defendants, he determined that the evidence from the energy consumption data should not be excluded from the criminal case. For one, the judge pointed to the unstable state of the law at the time, and the fact that law enforcement might have believed in good faith they were entitled to the energy consumption data without a warrant.
Despite the tempered win for the defendants, the Court of Appeal’s three judge panel—led by the highly respected Justice Doherty—has sent a message to utility companies and law enforcement agencies across Ontario that such warrantless sharing of information will be viewed as a Charter breach. Now that the Court of Appeal has cleared the air and propounded the unconstitutionality of such searches, it is much more likely that such evidence will be excluded in future cases.
Featured image by Roy Luck.