TOP COURT SAYS POLICE MAY SEIZE ELECTRICITY-USE RECORDS

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.

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.