Revocation of restraint order not justified where police collected electronic consumption data
The Alberta Court of Appeal ruled that patterns in electronic consumption collected by a device installed by ENMAX was not subject to a reasonable expectation of privacy to warrant revocation of a restraint order.
In Alberta (Justice and Solicitor General) v Bassett, 2022 ABCA 280, the Calgary Police Service received a crime stopper tip advising that Dennis Bassett was using a medical marijuana license to facilitate an illegal marijuana trafficking operation. They asked ENMAX Corporation to install a digital recording ammeter (DRA) to track whether the pattern of electrical consumption was consistent with an illegal marijuana trafficking operation.
The police concluded that the DRA results were consistent with a marijuana grow operation. Later, the police obtained an ex parte restraint order and seized 164 marijuana plants and a large sum of money.
Jenna Andrus sought to have the restraint order revoked and her money returned. However, because she did not testify or call evidence, the application was dismissed.
On appeal, Andrus argued that the electrical bypass warrant was not lawfully obtained in view of Andrus’ section 8 Charter rights based on the agency relationship between ENMAX and CPS and the Code of Conduct.
The appellate court disagreed.
This case is similar to the facts in R. v. Gomboc, 2010 SCC 55, where the police asked ENMAX to install a DRA in a residence suspected to grow marijuana, said the court. The Supreme Court of Canada ultimately ruled that Gomboc’s section 8 Charter rights were not violated, ruling that there was no reasonable expectation of privacy in the electric consumption information was objectively reasonable.
Andrus argued that Gomboc was no longer applicable considering subsequent decisions. However, in those decisions, the Supreme Court mentioned and even discussed Gomboc without any suggestion that it was no longer valid, said the court. Thus, the appellate court declined to “depart” from Gomboc.
Further, even assuming that ENMAX was an agent of the police in installing the DRA, the information collected was not subject to a reasonable expectation of privacy, said the court.
Thus, the appellate court dismissed Andrus’ appeal.
