Pubdate: Tue, 27 May 2014
Source: Hamilton Spectator (CN ON)
Copyright: 2014 The Hamilton Spectator
Contact:  http://www.thespec.com/
Details: http://www.mapinc.org/media/181
Author: Nicole O'Reilly
Referenced: Canadian Charter of Rights and Freedoms:
http://laws-lois.justice.gc.ca/eng/const/page-15.html

Charter Rights

GROW-OP CASE RAISES PRIVACY CONCERNS

Horizon Shared Data With Police Voluntarily

An Ontario court has ruled that a pair of Hamilton drug traffickers 
do not have a Charter-enshrined right to privacy when it comes to 
their hydro usage.

Maria Del Carmen Orlandis-Habsburgo and Edwin Robert Lefrancois don't 
deny they were growing marijuana at the Victoria Avenue South home 
they began renting about eight years ago, said their lawyer Paul Lewin.

The issue is that Horizon Utilities voluntarily sent police their 
hydro data - showing usage seven to 40 times higher than 
similar-sized homes - sparking an investigation that led to their arrests.

In a decision released late last week, Superior Court Justice 
Harrison Arrell dismissed the pair's Charter of Rights and Freedom's 
challenge, which called sections of the provincial and federal 
privacy acts and Horizon's actions "unconstitutional." They were also 
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. Arrell concluded that "Horizon 
customers are not entitled to unlimited confidentiality in their 
consumption information."

He noted both Horizon's conditions of service and the Ontario Energy 
Board's policy puts customers on notice that police will be notified 
where there is unauthorized energy use.

But Lewin contends that, "courts have said that privacy in the home 
is . a very important type of privacy for democracy, for an 
individual to feel secure and safe."

It doesn't matter that they were breaking the law, their privacy 
rights still stand, he said, adding that while hydro companies 
sharing information with police is not unusual in Ontario, the fact 
that Horizon voluntarily shared the info is unique and problematic.

According to the decision, between January and March of 2012 the 
house at 88 Victoria Ave. S., just south of Main Street East, used an 
average of 146.26 kilowatts per hour on a daily basis.

That's well above the typical 30 kw/h per day use. Most of the usage 
was for 12 hours overnight, which police said is typical of grow operations.

The couple was arrested April 26, 2012, nearly a month after the 
hydro company sent the information to Hamilton police.

During the search, police found 187 plants in two rooms, 4.5 
kilograms of processed marijuana, $22,955 in cash and a digital scale.

Hamilton police Constable Debbie McGreal-Dinning said hydro companies 
do share this type of information with police, but more often they 
contact police when hydro theft is suspected.

She noted that larger use of hydro can be an indicator of a grow 
operation, but regardless of the hydro information, police must 
conduct a thorough investigation.

In this case, police also conducted surveillance, according to the 
decision document.

Horizon spokesperson Larry Roberts said he can't comment on the 
details of the case, but said that in general the hydro company 
monitors usage and, in accordance with statutes and policies, will 
forward information to authorities where necessary.

It's important to look for areas with abnormal usage to plan for 
distribution, make sure transformers aren't overloaded and check for 
tampering of meters, he said.

Grow operations can endanger hydro workers and others because of the 
risk of electrical shock or fire, he added.

Horizon was not a party to the trial.

Orlandis-Habsburgo and Lefrancois are expected to return to court in 
October to face sentencing.

Lewin said the couple is strongly considering appealing the Charter 
ruling and the criminal convictions.
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MAP posted-by: Jay Bergstrom