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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against unreasonable search and seizure - Remedies for denial of rights

Tuesday, September 12, 2017 @ 8:51 AM  


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Appeal by Orlandis-Habsburgo and LeFrancois from their convictions for production and possession of marijuana for the purpose of trafficking and possession of the proceeds of crime. The two accused rented a home where they operated a commercial-sized marijuana grow operation. Police began an investigation based on information provided by the energy provider for the home, Horizon Utilities Corp. (Horizon), showing a pattern of electricity use in the home consistent with a marijuana grow-op. Horizon regularly collected and provided to police such data, on high and low energy users, to prevent theft and ensure the safety of its system. The police watched the home and obtained more information from Horizon about energy use in the home and in comparator homes. This information was included in the information to obtain (ITO) a warrant to enter the home. When executing the warrant, the police found many marijuana plants and packaged marijuana. The accused argued at trial that their rights were violated by the police in acquiring energy consumption data from Horizon without their consent or prior judicial authorization. Alternatively, they challenged the sufficiency of grounds articulated in the ITO to support the warrant’s issuance. The judge dismissed these arguments, finding that the consumption data released by Horizon did not go to the biographical core of personal, intimate details of the lifestyle and personal choices of the accused, precluding them from asserting a reasonable expectation of privacy. He considered it reasonable for Horizon to have released the data to police.

HELD: Appeal dismissed. The fact that Horizon volunteered the information about the energy use by the accused, rather than responding to a police request, had no bearing on whether there was a breach of the rights of the accused. Based on the relationship between the police and Horizon, it was fair to consider the police investigation underway when Horizon first forwarded its data to police. The information collected by Horizon and shared with the police related to the activities of the accused in their home, which favoured the existence of a reasonable expectation of privacy. Their privacy interests were attenuated by Horizon’s legitimate interests, the relatively non-personal nature of the information revealed by the data and the fact that the right of the accused to control the data was substantially qualified. Horizon’s contractual relationship with the accused did not contemplate the information sharing relationship Horizon had with the police. There was no legal authorization for the release of their information without their consent, and as such, the release constituted an unreasonable search and seizure. However, the police proceeded on the basis that they were entitled to examine and use the data Horizon provided without first obtaining judicial authorization. Although they were wrong in doing so, their understanding that they were entitled to use the data was reasonable, given the state of the law during the time period in question. On balance, although the improper search of the residence and the s. 8 Charter violation occasioned by the use of the data seriously impacted the appellants’ Charter-protected interests, society’s interest in an adjudication of the case on the merits outweighed the prejudice to the accused in admitting the evidence obtained in violation of their rights. The evidence was properly admitted.

R. v. Orlandis-Habsburgo, [2017] O.J. No. 4143, Ontario Court of Appeal, D.H. Doherty, S.E. Pepall and K.M. van Rensburg JJ.A., August 10, 2017. Digest No. TLD-Sept112017003