Matt Lonsdale is a JD candidate at Dalhousie University

In 2004 the Southern Alberta Marijuana Investigation Team, a joint effort of the RCMP and the Calgary Police Service, requested that the utility company Enmax attach a digital recording ammeter (“DRA”) to a residence in Calgary suspected of housing a marijuana growing operation. A DRA is a device which collects detailed information about power consumption, allowing a graph to be produced showing how consumption varies over time. This graph can be compared to known patterns indicative of marijuana growing operations. The request was made without a warrant, but a number of prior observations made about the house supported the inference that it might contain a marijuana growing operation.  

The information from the DRA was used to obtain a search warrant for the house and a large amount of marijuana and equipment was seized. The evidence was held to be admissible at trial and the accused was convicted. On appeal, it was held that installation of the DRA without a warrant violated the accused’s Charter rights and a new trial was ordered. The Supreme Court of Canada recently overturned the Court of Appeal’s ruling and upheld the conviction.

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that all Canadians have “the right to be secure against unreasonable search or seizure”. In the context of warrantless searches, courts have held that in order for a violation of s. 8 to have occurred, the accused must have had an objectively reasonable expectation of privacy in the information collected. Muddying the waters in this case was the Code of Conduct Regulation, a regulation passed pursuant to Alberta’s Electric Utilities Act which allows a customer to request that their usage information be kept confidential by the utility company. The accused in this case had failed to make this request. The court split 3 ways on the issue, with the majority holding the accused’s s. 8 Charter rights had not been violated.

A group of five judges saw the central issue as whether the DRA disclosed “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”. They found that it did not, and as a result, no violation of s.8 could have occurred.

Another group of judges, concurring in the result, held that the accused’s expectation of privacy in power consumption data could have been objectively reasonable, if not for his failure to request Enmax keep his information confidential. “[U]nder 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 did”. Without a reasonable expectation of privacy on the part of the accused, s. 8 could not have been violated.

A third group of judges, dissenting in the result, found that “[T]he existence of an obscure regulation that the reasonable person is unlikely to understand does nothing to render G’s subjective expectation objectively unreasonable”.  The dissenting judges were of the opinion that the search was a serious one which invaded the accused’s territorial privacy and infringed upon his Charter rights, and that a new trial should be ordered.

Privacy is a headline-grabbing issue these days and the decision in R. v. Gomboc received attention from several privacy law experts. Outside of the criminal law context, two recent decisions from the Federal Court dealt with the issue of determining damages for a breach of privacy by a corporation.