Supreme Court considers privacy in electricity consumption

Yesterday, the Supreme Court of Canada released its decision in R. v. Gomboc, 2010 SCC 55 (CanLII), where the Court considered the use of a digital recording ammeter to determine the electricity consumption of a private home to form the basis (in part) for a search warrant related to a suspected marijuana grow-op.

The facts are somewhat unique, given that Alberta's Electrical Utilities Act and related Code of Conduct Regulation would have given the homeowner the ability to keep electricity consumption information confidential and that the cooperating party -- the utility -- was also a victim of the illegal consumption of electricity.

Check out Brian Bowman's blog post about the case, too.

Here's the headnote:

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law ― Charter of Rights ― Search and Seizure ― Warrantless request by police to electric utility company for installation of digital recording ammeter to measure flow of electricity into a residence suspected of housing a marijuana grow operation ― Information from digital recording ammeter indicating pattern consistent with grow operation ― Observations of police and information from digital recording ammeter basis for warrant to search residence ― Whether reasonable expectation of privacy existed in the information obtained from the digital recording ammeter ― Whether installation of digital recording ammeter violated the rights of the accused to be secure against unreasonable search and seizure ― Canadian Charter of Rights and Freedoms, s. 8 ― Electric Utilities Act, S.A. 2003, c. E-5.1 ― Code of Conduct Regulation, Alta. Reg. 160/2003

Police ― Powers ― Search powers ― Warrantless request by police to electric utility company for installation of digital recording ammeter to measure flow of electricity into a residence suspected of housing a marijuana grow operation ― Information from digital recording ammeter indicating pattern consistent with grow operation ― Observations of police and information from digital recording ammeter basis for warrant to search residence ― Whether police search powers exercised in manner that infringed right of accused to be secure against unreasonable search ― Canadian Charter of Rights and Freedoms, s. 8.

An officer with the Calgary Police Service Drug Unit informed the Southern Alberta Marijuana Investigation Team about a residence in Calgary that he believed might be involved in producing marijuana. That same afternoon, officers conducted a reconnaissance of the residence and made inquiries of neighbours. Based on the observations of the officers and the neighbours questioned, the police contacted the utility company to request the installation of a digital recording ammeter (“DRA”) which would measure electrical power flowing into the residence which was owned by G. The resulting DRA graph showed a pattern of cycling of approximately 18 hours, a pattern consistent with a marijuana grow operation. An officer re-attended at G’s residence to conduct a second external viewing. On the basis of her observations and the information provided to her, including the DRA graph, the officer obtained a search warrant. As a result of the search, the police seized 165.33 kilograms of bulk marijuana, 206.8 grams of processed and bagged marijuana located in a freezer, and numerous items relating to a marijuana grow operation. G was charged with possession of marijuana for the purposes of trafficking and production of marijuana and theft of electricity. A voir dire was conducted to consider G’s application to exclude the evidence disclosed by the search on the basis that no warrant had been obtained prior to the installation of the DRA. The trial judge relied on the Code of Conduct Regulation made pursuant to Alberta’s Electric Utilities Act as statutory support for police access to the DRA data. The DRA evidence was therefore admitted and G was found guilty of the drug-related offences. A majority of the Alberta Court of Appeal allowed G’s appeal and ordered a new trial, concluding that G had a subjective expectation of privacy in the DRA information which 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 at the request of the state.

Held (McLachlin C.J. and Fish J. dissenting): The appeal is allowed and the conviction entered at trial is restored.

Per Deschamps, Charron, Rothstein and Cromwell JJ.: A critical factual consideration, on which much of the disagreement in this case turns, is the degree to which the use of DRA technology reveals private information. The evidence was that marijuana grow operations are not investigated using only DRA data and that DRA technology is employed late in an investigation and after conventional investigative methods support the inference that marijuana is being grown in the home. DRA data are used as one more investigative tool to dispel the belief that a grow operation is on the premises and even operate in favour of the defence in approximately half of the times. The importance of what the DRA discloses and what inferences the DRA data support is central to this case. The findings of the lower court concluding that a reasonable expectation of privacy in the DRA data does exist because some information about what is taking place in a house could be inferred are not supported by any evidence on the record. The DRA is a technique that reveals nothing about the intimate or core personal activities of the occupants. It reveals nothing but one particular piece of information: the consumption of electricity.

Before reaching the question of whether a search is reasonable within the meaning of the Charter, the accused must first establish that a reasonable expectation of privacy existed to trigger the protection of s. 8. The facts of this case straddle two privacy interests recognized in the jurisprudence: informational and territorial. There is every reason, however, for proceeding with caution when deciding what independent constitutional effect disclosure clauses similar to those in the Regulation may have on determining a reasonable expectation of privacy.

Determining the expectation of privacy requires examination of whether disclosure involved biographical core data, revealing intimate and private information for which individuals rightly expect constitutional privacy protection. The appropriate question is whether the information is the sort that society accepts should remain out of the state’s hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used. The combined effect of the Regulation and s. 487.014 of the Criminal Code establishes that not only was there no statutory barrier to the utility company’s voluntary cooperation with the police request, but express notice that such cooperation might occur existed. This is one factor amongst many which must be weighed in assessing the totality of the circumstances. The central issue in this case is thus whether the DRA discloses 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. The evidence available on the record offers no foundation for concluding that the information disclosed by the utility company yielded any useful information at all about household activities of an intimate or private nature that form part of the inhabitants’ biographical core data. The DRA’s capabilities depend of course on the state of the technology at the time of its use. As DRA technology now stands, it is not capable of giving access to the occupants’ personal information. Instead, the DRA data merely yield an additional piece of information to evaluate suspicions — based on an independent evidentiary foundation — police already have about a particular activity taking place in the home.

A final factor affecting the informational privacy analysis is the fact that G’s interest in the electricity use data was not exclusive. G’s electricity consumption history was not confidential or private information which he had entrusted to the utility company. As the supplier of electricity, the utility company had a legitimate interest of its own in the quantity of electricity its customers consumed. Consequently, it is beyond dispute that the utility company was within its rights to install a DRA on a customer’s line on its own initiative to measure the electricity being consumed. The utility company was not an interloper exploiting its access to private information to circumvent the Charter at the behest of the state; rather, its role is limited to the wholly voluntary cooperation of a potential crime victim.

While a territorial privacy interest involving the home is a relevant aspect of the totality of the circumstances informing the reasonable expectation of privacy determination, the Charter’s protection of territorial privacy in the home is not absolute. Where, as in the case at bar, there was no direct search of the home itself, the informational privacy interest should be the focal point of the analysis. The fact that the home was the focus of an otherwise non-invasive and unintrusive search should be subsidiary to what the investigative technique was capable of revealing about the home and what information was actually disclosed. The fact that the search includes a territorial privacy aspect involving the home should not be allowed to inflate the actual impact of the search to a point where it bears disproportionately on the expectation of privacy analysis.

Per Binnie, LeBel and Abella JJ. ― Throughout the development of its s. 8 jurisprudence, the Court has consistently recognized the overriding constitutional importance of the privacy interests connected with activities taking place inside the home. Given the overriding significance of protecting these privacy interests, the concerns regarding the warrantless use of DRAs are well founded. And this case may well have been differently decided but for a crucial factor: the relationship between G and his utilities provider is governed by a recently enacted public statute, which entitles G to request confidentiality of his customer information. He made no such request. Nor did he challenge the constitutionality of the relevant provision. This combines to determinately erode the objective reasonableness of any expectation of privacy in the DRA data.

DRA data indicating a certain cyclical pattern permits a strong inference of the presence of a marijuana grow operation in a residence. The existence of such activity is presumptively information about which individuals are entitled to expect privacy because it is information about an activity inside the home and is, therefore, personal information. The fact that the activity is criminal does not, under our jurisprudence, remove it from the expectation of and entitlement to privacy protection and, therefore, the requirement of a warrant. The DRA is a surveillance technique that yields usually reliable inferences as to the presence within the home of one particular activity: a marijuana grow operation.

The fact, however, that the customer in this case can request that his or her information be protected means essentially that under the Code of Conduct Regulation, the customer is presented with the unrestricted ability to control the expectation of privacy in his or her relationship with the utility company. G made no such request, yet urges the Court to treat his expectation of privacy as if he had. There is no room for interpretive creativity in this case because there is no ambiguity in the language of the provisions. DRA information, whenever it is collected, is, necessarily, “customer information” pursuant to the Regulation and, as such, information under s. 10(3)(f) of the Regulation that can be collected by the utility company and disclosed “without the customer’s consent” to the police investigating an offence. An examination of the totality of the circumstances involves consideration of all, not just some, of the relevant circumstances. There can be no examination of the totality of the relevant circumstances without including the fact that the Regulation exists. It cannot, therefore, be seen as neutral or irrelevant. The contractual terms the Regulation creates are not only clear and unambiguous; they are also clearly relevant to an objective assessment of the reasonableness of any expectations of privacy G may have had in the DRA information, regardless of whether he decided to inform himself of the legal parameters of his relationship with his utility provider. When considered among all the circumstances of this case, the legislative authority provided by the Regulation is in fact determinative and leads to the conclusion that any expectation of privacy that G may have had was objectively unreasonable. In the absence of a reasonable expectation of privacy, the collection of the DRA information in this case did not constitute a “search” within the meaning of s. 8.

Per McLachlin C.J. and Fish J. (dissenting): This appeal raises core issues regarding the protection of privacy safeguarded by s. 8 of the Charter. When we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enter our homes, physically or electronically, for the purpose of pursuing their criminal investigations without prior judicial authorization. Considering the totality of the circumstances, a reasonable person would not accept that the type of information at issue, collected for the reasons and in the manner that it was, should be freely available to the state without prior authorization. G is presumed to have a subjective expectation of privacy within his home. The existence of an obscure regulation that the reasonable person is unlikely to understand does nothing to render G’s subjective expectation objectively unreasonable. G had a reasonable expectation of privacy in the DRA data, the intrusion and transmittal of the information gleaned constituted a search and this search was not authorized by law.

A search occurs when state conduct interferes with an individual’s reasonable expectation of privacy. Whether an expectation of privacy is reasonable depends on whether the individual concerned has (1) a subjective expectation of privacy in the subject matter of the alleged search, and (2) whether that subjective expectation is objectively reasonable. The test for subjective expectation of privacy is a low hurdle and individuals are presumed to have a subjective expectation of privacy regarding information about activities within the home. Thus, resolution of this issue turns on whether G’s expectation of privacy was objectively reasonable. The factors relevant to determining an objectively reasonable expectation of privacy include the subject matter of the search, the place of the search, whether the privacy interest was abandoned or waived, the degree of intrusiveness, and, in some cases, the presence of a regulatory framework that would diminish any expectation of privacy. In our view, the resolution of this issue turns on the last two factors above: the degree of intrusiveness and the presence of a regulatory framework.

We begin with the issue of intrusiveness. While the DRA does not indicate the source of electrical consumption within the residence, it produces detailed information as to the amount of electricity being used in a home and when it is being used. In addition, DRAs are extremely accurate in disclosing the existence of plant growing operations within a house. The fruits of a search need not produce conclusive determinations about activities within a home in order to be considered informative and thus intrusive. The significance of the DRA data derives from its utility in making informed predictions concerning the probable activities taking place within a home. Predictions of this sort, while not conclusive, nonetheless convey useful private information to the police. Such evidence of criminal activity, or of a connection to criminality, has previously been considered by this Court to be very personal biographical information.

The constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used. It is unhelpful to compare a DRA search conducted without a warrant to a physical search conducted with a warrant. It is hardly apparent that the use of DRAs will reduce the total intrusion into a suspect’s territorial privacy as the use of a DRA only serves as a substitute for a physical search of a suspect’s home if the police could have obtained a warrant to search the home.

The remaining issue in determining whether a search occurred is whether the Regulation negates or reduces the objectively reasonable privacy interest the other factors suggest. A reasonable person would not have concluded that his or her expectation of privacy in activities inside the home was negated because of the Regulation. The average consumer signing up for electricity cannot be expected to be aware of the details of a complex regulatory scheme which permits the utility company to pass information on electricity usage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights. In addition, if they were made aware of the Regulation — something that did not happen in this case — reasonable consumers would likely not read it as permitting the intrusion at issue. Finally, although the Regulation is not a criminal law, the provisions relied upon by the Crown are explicitly criminal rather than regulatory in purpose. We conclude that G had a reasonable expectation of privacy in the DRA data and that the intrusion and transmittal of the information gleaned thus constituted a search.

If a search is established, the court must then determine whether the search was reasonable. The search in this case was not reasonable. The warrantless use of the DRA was not shown to be reasonably necessary to the police activity, as the police unit in this case has demonstrated by virtue of its general policy of applying for warrants before attaching DRAs to transformers located on private property. Moreover, while the Regulation permits the disclosure of “customer information”, it does not authorize the utility company to operate as an agent for the police for the purpose of spying on consumers. The DRA data that concerns us here was not pre-existing information in a utility company subscriber’s file. Although the utility company might have chosen to collect this data on its customers on its own initiative and for its own purposes, it neither did so nor manifested any intention to do so in this case. Accordingly, it has not been demonstrated that the search was authorized by law and as such, G’s rights under s. 8 of the Charter were infringed. We would affirm the judgment of the Court of Appeal and dismiss the appeal against that judgment to this Court.

Check out Brian Bowman's blog post about the case, too.