Grow-op conviction trumps privacy challenge, court rules
Hamilton power utility tipped off police about home's unusual power consumption
A Hamilton judge says a pair of drug traffickers' charter rights to privacy in their home don't extend to information about excessive electricity use for a marijuana grow-op.
Superior Court Judge Harrison Arrelldismissed a Charter of Rights and Freedoms challenge from two accused Hamilton-area drug traffickers over the way their power company shared information about rate usage that led to their arrest.
According to court documents, Maria Del Carmen Orlandis-Habsburgo and Edwin Robert Lefrancois were cultivating a grow-op in a Victoria Avenue South home when officers searched it in April 2012.
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Police were tipped off to the operation by Hamilton's electricity utility, Horizon Utilities. Without prompting, the utility had provided information to police about abnormally high electricity consumption in the home. Horizon had no business bringing that information forward to police, said the pair’s lawyer, Paul Lewin.
“Privacy in the home is one of the most hallowed types of privacy,” Lewin told CBC News in Hamilton. “It doesn’t matter that it’s contraband.”
But the judge dismissed the pair's challenge in a decision released late last week, and Orlandis-Habsburgo and Lefrancois were found guilty of producing marijuana, possession of marijuana for the purpose of trafficking and possession of property worth more than $5,000 obtained through crime.
I really believe the average person wouldn’t be happy with this.—Paul Lewin, lawyer
"Horizon customers are not entitled to unlimited confidentiality in their consumption information,” Arrell wrote in his decision. Both the Ontario Energy Board’s policy and Horizon’s conditions of service contain notices about police notification when there is unauthorized energy use, he added.
“I find the accused guilty as charged.”
Police spokeswoman Debbie McGreal-Dinning told CBC News that there is no police policy when it comes to receiving information from hydro companies, but large hydro consumption or inconsistencies in usage can indicate a grow-op.
“This is just one more investigative tool in addition to many investigators consider utilizing during an investigation. The information received would be considered one piece of the puzzle much as a Crime Stoppers tip would be,” McGreal-Dinning said. “Hydro companies do share this type of information with police, but most often they contact police when there has been an incident involving the theft of hydro.”
Horizon could not immediately be reached for comment on the case.
According to the court decision, the home was drawing an average of 146.26 kilowatt hours on a daily basis, which is much higher than normal.
Officers found 187 marijuana plants in various stages of growth inside, 4.5 kilograms of processed marijuana and almost $23,000 in cash when they searched the home.
Lewin said that though his clients have been convicted, they still deserve to have their privacy respected. “This has resonated very much with them. They’re very passionate about this,” he said. “I really believe the average person wouldn’t be happy with this.”
The pair are due back in court for sentencing this fall. Lewin said he and his clients are “talking very seriously” about appealing the decision.