Electric Privacy

While the concept of territorial privacy (“the house of everyone is to him as his castle and fortress”) can be traced to back to Semayne’s Case in 1604, it has evolved and become more nuanced over time. Information emanating from the home has received less generous privacy treatment and that subject is to receive further consideration in the Supreme Court of Canada (“SCC”) in May 2010 when it hears an appeal in the case of R. v. Gomboc.

Gomboc is a 2009 decision out of the Alberta Court of Appeal, involving the collection of residential electrical use data, where the issue was whether the use of a digital recording ammeter (“DRA”), in the absence of a warrant, constituted a s. 8 Charter violation.

In suspecting the defendant operated a “grow house”, the police requested the electrical service provider (Enmax) to install a DRA. After a five-day period, the data provided to the police suggested that the appellant’s electrical use was consistent with a marijuana grow operation. With that information, combined with their earlier observations, the police obtained and executed a search warrant, confirmed the grow operation and charged Gomboc accordingly.

In a split decision, the Court held that the defendant had a reasonable expectation of privacy that had been violated. “The use of the DRA amounted to a form of surreptitious electric surveillance of an individual by an agency of the state, which, without prior judicial authorization, constitutes an unreasonable search and seizure.”

Courts in Saskatchewan (R. v. Cheung) and recently in Ontario (R. v. Luong & Phung) concluded that the use of a DRA without prior judicial authorization did not violate an individual’s s. 8 Charter rights. The issue of privacy in electricity records is not new, having been addressed by the Supreme Court in 1993 in R. v. Plant, where collecting electrical use data from utility records was decided to not be a s. 8 violation (though arguably distinguishable from the facts in Gomboc because of the use of the DRA as opposed to reviewing utility records).

What may make Gomboc interesting is that the world and the law have evolved since Plant. With the SCC articulating a test for a reasonable expectation of privacy in R. v. Edwards (1996), courts in Canada are to look at the “totality of the circumstances”, considering all aspects of personal privacy, territorial privacy, or informational privacy, in assessing whether a person has a reasonable expectation of privacy. Also, the SCC’s concept of privacy revolving around “core biographical data” appears to be evolving to cover information in other contexts. As the SCC noted in R. v. A.M (2008), “[n]ot all information that fails to meet the “biographical core of personal information” test is thereby open to the police.” Especially in circumstances where the information is reasonably intended to remain private.

One hopes that the SCC is persuaded by the reasoning of the Alberta Court of Appeal. Is a DRA really that different from a wiretap?