Alberta Court of Appeal Brings Temporary Closure to the DRA Debate

A digital recording ammeter (DRA) is a device installed on the electrical line of a home for the purpose of measuring and recording the target residence’s electrical usage. DRAs are often used to investigate residences suspected to contain marijuana grow operations.

The reason a DRA is an effective tool for these types of investigations is because marijuana grow operations typically utilize higher than average electricity to power lights and fans necessary to facilitate plant growth. For example, during the “seeding phase” of a marijuana grow (usually lasting up to four weeks), it is very important to maintain high humidity levels and medium to high light intensity. To quicken the seeding phase, a 12 hour lighting cycle is generally used to induce sexing. A DRA will not only measure the level of power consumption, but can supply information about power consumption pattern within the residence. Therefore, it can determine whether power is consumed in 12 or 18 hour cycles consistent with the presence of a plant grow operation. Cycles for marijuana grows (as with other perfectly legal plant grown operatoins) are designed to mimic a 24 hour day.

In the world of criminal justice, there has been much debate as to whether the use of DRAs constitutes a search pursuant to section 8 of the Canadian Charter of Rights and Freedoms. In Alberta, the Court of Appeal’s decision in R. v. Gomboc 2009 ABCA 276 may, at least temporarily, provide some closure to the issue.

Writing for the majority, Mr. Justice Peter Martin held that the use of digital recording ammeters (DRAs) constitutes a search pursuant to section 8 of the Charter. At the heart of the debate was whether persons have a reasonable expectation of privacy in this kind of information. After acknowledging various jurisprudence about the sanctity of the home, Martin J.A. aptly stated at paragraphs 21 and 22:

In my opinion, the expectation of privacy extends beyond simply the information as to the timing and the amount of electricity used. 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 the police, without judicial authorization. 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.

It is useful to recall that the appellant’s relationship with the utility provider was born of modern necessity; it was not feasible for him to generate his own electricity or to go without. So the appellant agreed to a standard electrical service arrangement with Enmax, whereby the latter would supply electricity to the his home in exchange for payment for that service. In this way, Enmax received access to the appellant’s property to install the necessary equipment to supply his house with electricity, and continued to have restricted access to check and maintain the equipment. It is reasonable to infer that access would not otherwise have been allowed.

In arriving at his decision, Martin recognized, a pair of realities: (1) It is a basic need for Canadian citizens to use electricity and (2) in our modern world surveillance encompasses more than just the cliché stakeout. Today, surveillance encapsulates a variety of techniques, some which involve gathering information about citizens within non-private domains, and other techniques which are potentially more intrusive. Granted, DRA can supply investigators with information suggestive of the presence of a plant grow operation (which by the way, is not always an illegal marijuana grow); but as Martin J.A. recognized, it can also provide insight into biographical information about the occupants of a home. Given that people must contract by necessity with their local energy provider to get power, they should not by sheer modern necessity be required to consent to a loss of the right to privacy within their own home sanctuary.

Whatever the case, closure on the DRA issue is sure to be relatively short-lived; for of the three member panel, Mr. Justice Cliff O’Brien delivered a strong, well reasoned and interesting dissent. For this reason, it is highly likely the issue will ultimately be decided by what has in recent years been a heavily divided, and somewhat inconsistent, Supreme Court of Canada.

In the meantime, police should obtain prior judicial authorization (a search warrant) if they want to use DRAs. Since the prior judicial authorization process is theoretically the mechanism by which the privacy interests of all Canadians is protected from unjustified State intrusion, it is hard for me to imagine that obtaining a warrant before intruding on a citizen's home sanctuary is anything less than proper.

David G. Chow
Calgary Criminal Defence Lawyer

www.calgarydefence.com