Supreme Court of Canada Considers Privacy of Utility Customer Data

In R v Gomboc (2010 SCC 55), the Supreme Court of Canada found that a resident of a house did not have a reasonable expectation of privacy – either informational or territorial – in respect of information about electricity consumption within the house. Police suspected that the house occupied by Daniel Gomboc (DG) contained a marijuana grow operation. To confirm their suspicion, the police asked the electricity provider to install a digital recording ammeter (DRA) on the power line to the house, which would record the amount of power used as a function of time. If a house were being used for a grow operation, the DRA would generally show a distinct pattern because marijuana is typically grown in 12- and 18-hour light cycles. In this instance, the police did not obtain a search warrant before they asked the provider to install the DRA. Instead, the electricity provider voluntarily agreed to a police request to install the DRA, an action which is expressly permitted under a Regulation authorized by the Alberta Electric Utilities Act, if “the disclosure is not contrary to the express request of the customer.” DG had made no such request. At DG’s trial on a number of drug-related offences, based on evidence obtained under a search warrant, triggered by the use of the DRA evidence in question, DG was found guilty. A majority of the Alberta Court of Appeal allowed DG’s appeal and ordered a new trial, ruling that DG had a subjective expectation of privacy in the DRA information, which expectation was also objectively reasonable. The majority further concluded that the Regulation could not be interpreted to imply the homeowner’s consent to allow a utility company to gather information. On further appeal, the Supreme Court of Canada, by a 7-to-2 majority, restored the conviction. Justice Abella, two other justices concurring, found that the failure by the householder to make a request for non-disclosure, in itself, was sufficient to negate any objective reasonableness of an expectation of privacy. Justice Deschamps, three other justices concurring, considered this to be only one factor, albeit an important one, amongst many factors to be weighed in assessing the totality of the circumstances. Ultimately, Justice Deschamps found that the DRA did not disclose intimate details of the lifestyle and personal choices of the individual that form part of the biographical core data protected by the Charter’s guarantee of informational privacy, and, in his view, this was determinative. The Chief Justice and Justice Fish dissented, disagreeing with the conclusion of Justice Dechamps, finding that the DRA does disclose some information about activities or lifestyle choices associated with the home. They also felt than the average consumer could not be expected to know the details of a “complex regulatory scheme” and so the Regulation could not negate a reasonable expectation of privacy. For the full text of the decision, see: http://scc.lexum.umontreal.ca/en/2010/2010scc55/2010scc55.html Summary by: Tom Feather