Tag: Marijuana Production

By: Nicolas Di Nardo

Police practices are about to change, now that the Ontario Court of Appeal has ruled that police investigating a suspected marijuana grow-op now require a search warrant to obtain hydro records from utility companies.

The Ontario Court of Appeal made this ruling in a case that involved police investigating a grow-op in a Hamilton home. This landmark decision sends a message to law enforcement as well as hydro companies.

It is common practice for police to review hydro-usage patterns in order to identify grow-ops, because they use enormous amounts of electricity compared to they average home. “Now, police must obtain a warrant or other judicial authorization in order to search and seize hydro consumption records” with respect to suspected grow operations.

The defendants rented a home with a grow-op in the basement. The hydro company that co-operated with police is Horizon Utilities, which has a customized software to detect patterns of electricity use that are consistent with grow operations. However, the court ruling notes that the hydro company forwarded the information to the police. This is actually a common practice by Ontario utility companies, and have never required a warrant to do so – however, Paul Lewin, the lawyer for the defendants, said that Horizon went a step further by forwarding the police the information rather than waiting for the police to contact them for the records.

This, comes after the surveillance and investigating, when they requested additional information about the electricity use at the home, including neighbouring residences, with Horizon voluntarily complying.

Following surveillance, the police applied for a warrant to search the residence, which relied on, in part, the electricity usage that was supplied by Horizon. Police discovered the grow-op in the basement, seized $23,000 and charged the defendants.

They were convicted in 2014, after the judge deemed their rights were not violated under the Charter of Rights and Freedoms.

Judges of the Court of Appeal did find their rights against an unreasonable search and seizure violated when Horizon shared the information with the police, which launched the investigation. Justice David Doherty wrote in the decision released August 11, 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… the appellants’ right to be free from unreasonable search and seizure was breached.”

As stated earlier, the evidence was not excluded because judges believe the police might have believed in good faith that they were entitled to the energy data without a warrant.

Now, once pot becomes legal next year, if police suspect people are exceeding the allowance put in place (four plants for Canadians, 12 plants for medical growers) they will have to request a warrant in order to obtain any records, keeping what goes on in the home, private.

At Devry Smith Frank LLP we have experienced lawyers in all areas of law. If you are looking for a lawyer or have general questions, please feel free to contact one of our lawyers today, or call us directly at 416-449-1400.

“This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”