A file photo of a marijana grow-op.

The province’s top court says police use of a digital recording amp-metre without judicial authorization, to determine if there is a marijuana grow operation in a home, violates the homeowner’s privacy rights.

In a split, 2-1 decision released on Friday, the Alberta Court of Appeal ruled that Calgary police should not have requested Enmax to install the device to create a record of when electrical power was being consumed at Daniel James Gomboc’s southwest home in January 2004, before obtaining a warrant.

“It has been famously said that ‘the state has no business in the bedrooms of the nation,’ ” wrote Justice Peter Martin, who ordered a new trial for Gomboc.

“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.”

Lawyer Charlie Stewart, who represented Gomboc–convicted of producing the illicit drug and possession for the purpose of trafficking at Court of Queen’s Bench in 2007–said the decision affects everybody charged with growing marijuana in Alberta in which the DRA has been used.

“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.”

With the information from the DRA probe, to bolster physical observations and smells emanating from the home, police obtained a search warrant and found a two-stage grow op involving hundreds of plants.

They also seized 165.3 kilograms of bulk marijuana, 206.8 grams of processed and bagged marijuana, as well as numerous items related to the grow op.

With the decision, all evidence gathered in the search would be inadmissible at trial.

Martin, who was supported in his decision by Justice Ron Berger, said the expectation of privacy extends beyond simply the information as to the timing and the amount of electricity used, as Enmax had done at police request over a five-day period.

“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.”

In a lengthy dissent that would have dismissed Gomboc’s appeal, Justice Clifton O’Brien agreed with QB Justice Marsha Erb’s original trial decision to convict.

“When combined with the other (indications), the DRA information supported the issuance of a warrant,” O’Brien said. “Further, the regulatory regime in Alberta concerning the usage of electricity negates any confidentiality on the part of a customer vis-a-vis the police, relative to his or her usage thereof.

dslade@theherald.canwest.com