The Métropolitain

Supreme Court compromises home privacy

By Beryl Wajsman on December 1, 2010


“A dictatorship of data rather than jackbooks is no less a dictatorship.”

~ Prof. Arthur R. Miller


We have all heard the expression that a “person’s home is their castle.” It is more than a saying. It has for hundreds of years been incorporated into the body of our laws. 

Clearly one can understand that there are certain exceptions. If we hear some horrible scream or smell or smoke coming from our neighbour’s home or apartment we would be irresponsible not to call the appropriate authorities and they would be perfectly right to come and investigate. But how do you feel about information collected about you through the endless panoply of wires and meters governing our abodes being handed over to public security authority? A great danger we think. Yet that is what the Supreme Court has opened the door to.

The case involved one Daniel Gomboc who was convicted of growing and selling marijuana in Calgary. The police, while investigating another matter near Gomboc’s home, detected the smell of marijuana in the area and noticed that unlike other homes in winter Gomboc’s had no snow on the roof.  For our money, not exactly reasonable cause to violate privacy. But the Calgary police became very creative.

They asked Enmax, the power company, to install a digital recording ammeter to obtain a printout of power usage at Gomboc’s house. The officers then used the information from the DRA to obtain a search warrant. Police seized bulk marijuana and Gomboc was arrested, charged and convicted. One would think that pulling information out of a house would in and of itself would entail the need for a search warrant.

The Alberta Court of Appeals agreed and overturned the conviction.  The Crown appealed.

The Supreme Court, in a very divided opinion, overturned the Court of Appeals on the question of protection of our constitutional right to privacy. But in one of the most eloquent dissents we have read in a long time Chief Justice Beverly McLachlin and Justice Morris Fish ( the latter hailing from Montreal) warned the court against taking an “incremental but ominous step towards the erosion of the right to privacy.” They described the home as “the most private of dwellings” and concluded that “a reasonable person” would not expect that details of electricity usage – which tells so much about our detail routine -  could be handed over to security authorities without a judge’s consent. They stated that  “When we subscribe for public services we do not authorize the police to conscript utility suppliers…”  It is a shame that Justice Marie Deschamps, writing for the majority, found these basic tenets of fairness “impractical” to enforce.

Ontario’s Privacy Commissioner has long warned of the privacy violations inherent in the use of DRAs . Too bad not enough people were listening.  As early as 1970 Prof. Arthur R. Miller concluded his seminal work “The Assault on Privacy” with these words:  “A dictatorship of data banks and test tubes rather than of hobnailed jackboots will not make it any less a dictatorship.” Upon reading the book  Sen. Sam Ervin, then Chairman of the Senate Subcommitte on Constitutional Rights and later Chairman of the Watergate Committee, wrote, “We must bring to an end the legal abuses of technology before the light of liberty is extinguished in our land.” Amen!