Ontario Court of Appeal Recognizes Reasonable Expectation of Privacy in Energy Consumption Data

In R v Orlandis-Hansburgo (2017 ONCA 649), the Ontario Court of Appeal (ONCA) held that a reasonable expectation of privacy existed in energy consumption data capable of supporting inferences of activities taking place in a residence. In this case, the ONCA held that the seizure of such data by police, which led to the arrest of the appellants, constituted a violation of Section 8 of the Charter of Rights and Freedoms (the Charter). Nevertheless, the ONCA was not satisfied that the evidence obtained as a result of the violation of the appellants’ Charter rights should be excluded under Section 24(2) of the Charter. The ONCA dismissed the appeal.

Background

Horizon Utilities Corp (Horizon) recognized a pattern in the use of electricity by the appellants that was consistent with the operation of a marijuana grow-op. As a result of its informal information sharing arrangement with the police, Horizon forwarded information pertaining to the energy consumption in the appellants’ home to the police. The police used the information to obtain a search warrant, which ultimately led to the arrest and prosecution of the appellants for the production of and possession for the purposes of trafficking marijuana. The Superior Court of Justice convicted the appellants.

Appeal

The ONCA found that the appellants had a reasonable expectation of privacy in the energy consumption data provided to the police, but found that the evidence obtained pursuant to the issued warrant was admissible, and thus upheld the conviction.

The ONCA also considered the disclosure provisions in Sections 7(3)(c.1)(ii) and 7(3)(d)(i) of the Personal Information Protection and Electronic Documents Act (PIPEDA) and Section 32(g) of the Municipal Freedom of Information Protection of Privacy Act (MFIPPA), finding that the informal information sharing arrangement between Horizon and the police did not satisfy the requirements under either PIPEDA or MFIPPA.

Implications of the Decision

Although this decision arises in the criminal context, it may have implications for permitted disclosures to police without the consent of the data subject under PIPEDA and MFIPPA. Organizations may wish to consider their legal obligations in view of this decision before disclosing information to enforcement authorities without the consent of the data subject.

Summary By: Michael House