Canada: In Marijuana Grow Case, Alberta's Top Court Rules Police Use of Power Recording Device Violates Privacy Rights
In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc.
Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction.
Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information.
"It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization."
Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and
would object to the state being allowed to use a utility to spy on a homeowner in this way."
The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."
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Thank you for this positive
Comment posted by David Borden on Thu, 08/27/2009 - 1:43pmThank you for this positive response to Phil's article. My comment below about rhetoric was clearly not aimed at your comment here (since I deleted the one I was referring to). I'm posting this reply to yours, just to make sure no one looking too quickly got the wrong idea that we have any problem with this one.
David Borden, Executive Director
StoptheDrugWar.org: the Drug Reform Coordination Network
Washington, DC
http://stopthedrugwar.org
some of you need to tone down the rhetoric
Comment posted by David Borden on Thu, 08/27/2009 - 1:42pmI deleted a comment that was posted here which went into demanding things of the government at "bayonet point" and got slightly worse from there. I deleted a similar type of comment from another post last night as well, I don't remember which one.
We will not hesitate to delete comments of that nature in the future. Please don't force us to do so -- we don't enjoy deleting anyone's comments, but that direction of rhetoric would do incalculable damage to our ability to influence public opinion, and to ultimately get laws changed. And if someone actually were to be influenced to shoot someone, we think that would be an extremely bad thing, even if the victim were someone we didn't like.
You are all entitled to your own opinions of what kind language is appropriate to use on comment boards, but if this particular type of language is what you want to use, use it somewhere else instead and keep us out of it.
David Borden, Executive Director
StoptheDrugWar.org: the Drug Reform Coordination Network
Washington, DC
http://stopthedrugwar.org
Thank you
Comment posted by Moonrider on Sat, 08/29/2009 - 2:24pmI usually do not continue to read through the whole of the comments which advocate violence, but it will be nice not to have to even read the first sentence of such posts. You are correct that they do not help our cause.
I'm pro-choice on EVERYTHING!
By the way, I just had to
Comment posted by David Borden on Sat, 08/29/2009 - 6:24pmBy the way, I just had to delete another such post, from the same person. I think it was in this article too. Please, I don't want to have to call anyone out, but we will delete any post that seems to advocate violence, the moment that we see it, and we ask that you not place our efforts at risk by posting that sort of thing to begin with.
David Borden, Executive Director
StoptheDrugWar.org: the Drug Reform Coordination Network
Washington, DC
http://stopthedrugwar.org
Right to Privacy is Critical
Comment posted by Giordano on Thu, 08/27/2009 - 3:54pmGood news from Canada. Unfortunately, there can be little doubt that the right to privacy is being targeted for extinction by law enforcement in the United States at every opportunity. Lacking a right to privacy, the aggressive agenda of right wing extremists and corporatists would be the order of the day. Drug laws are but one means by which privacy can come under attack. Abortion restrictions are another.
Privacy enables a wall of separation between church and state, as well as a separation of corporation and state as it applies to the autonomy of the individual. The idea that standards of living and personal lifestyles can be dictated by the state, a state influenced by those who benefit the most by reducing personal living standards to that of a third-world country, is antithetical to what people desire in a democratic republic. Tyrants know this, which is why they tend to lie and manipulate to achieve their ends.
Protecting and strengthening the right to privacy ensures that a lot of legal territory is covered, including the right to imbibe certain chemicals even though the drugs might ultimately prove unhealthy. Privacy certainly includes the right to use relatively benign herbal remedies such as medical cannabis. Perhaps this is why the privacy question is now used as a litmus test for U.S. Supreme Court nominees to determine their dedication to civil rights in general.
Giordano
What a NO BRAINER... but only 2 out of 3 judges got it right!
Comment posted by Anonymous on Mon, 08/31/2009 - 12:12pmWhat a NO BRAINER... but only 2 out of 3 judges got it right! Meaning 1 out of 3 judges does not understand the rule of law... a 33% failure rate on something so clear... pathetic!
The muddied water is clear to me... rights are NOT privileges... warrantless trespass is criminal... the patron got punished... and the punishers got a paycheck... what could possibly be wrong with this system?
Home is Hallowed Ground,
Thomas Paine IVXX
B.S. "We hold that all individuals have the right to exercise sole dominion over their own lives, and have the right to live in whatever manner they choose, so long as they do not forcibly interfere with the equal right of others to live in whatever manner they choose." LP
Ever notice...
Comment posted by Anonymous on Thu, 08/27/2009 - 2:06amthat American courts almost always side in favor of the state with regards to civil rights cases? Not hard to see why so many freedoms originally intended to be bestowed upon the citizens of the US have been taken away. Since the state can't just simply say that the Constitution is bunk outright, they just have their own wing of government (the courts) interpret it the way they see fit.
Seriously, this would be a stunning ruling if it happened in the US.