Her Majesty The Queen Appellant v. Daniel James Gomboc, 2010 SCC 55

SUPREME COURT OF CANADA Citation : R. v. Gomboc, 2010 SCC 55 , [2010] 3 S.C.R. 211 Date : 20101124 Docket : 33332 Between: Her Majesty The Queen Appellant and Daniel James Gomboc Respondent - and - Attorney General of Ontario, Attorney General of Quebec and Canadian Civil Liberties Association Interveners Coram : McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment : (paras. 1 to 54) Reasons Concurring in Result: (paras. 55 to 96) Joint Reasons Dissenting in Result: (paras. 97 to 152) Deschamps J. (Charron, Rothstein and Cromwell JJ. concurring) Abella J. (Binnie and LeBel JJ. concurring) McLachlin C.J. and Fish J. R. v. Gomboc , 2010 SCC 55, [2010] 3 S.C.R. 211 Her Majesty The Queen Appellant

v. Daniel James Gomboc Respondent and Attorney General of Ontario, Attorney General of Quebec and Canadian Civil Liberties Association Interveners Indexed as: R. v. Gomboc 2010 SCC 55 File No.: 33332. 2010: May 19; 2010: November 24.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. 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 Marihuana Investigative 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 kg of bulk marijuana, 206.8 g 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, 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 utility 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 determinatively 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 hisutility provider. When considered among all the circumstances of this case, the legislative authority provided by the Regulation is in factdeterminative and leads to the conclusion that any expectation of privacy that G may have had was objectively unreasonable. In theabsence of a reasonable expectation of privacy, the collection of the DRA information in this case did not constitute a “search” within themeaning of s. 8.

Per McLachlin C.J. and Fish J. (dissenting): This appeal raises core issues regarding the protection of privacy safeguardedby s. 8 of the Charter. When we subscribe for public services, we do not authorize the police to conscript the utilities concerned to enterour 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 thereasons and in the manner that it was, should be freely available to the state without prior authorization. G is presumed to have asubjective expectation of privacy within his home. The existence of an obscure regulation that the reasonable person is unlikely tounderstand does nothing to render G’s subjective expectation objectively unreasonable.

G had a reasonable expectation of privacy in theDRA 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 anexpectation of privacy is reasonable depends on whether the individual concerned has (1) a subjective expectation of privacy in thesubject matter of the alleged search, and (2) whether that subjective expectation is objectively reasonable.

The test for subjectiveexpectation of privacy is a low hurdle and individuals are presumed to have a subjective expectation of privacy regarding informationabout 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 ofthe search, whether the privacy interest was abandoned or waived, the degree of intrusiveness, and, in some cases, the presence of aregulatory framework that would diminish any expectation of privacy. In our view, the resolution of this issue turns on the last twofactors 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 theresidence, 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 notproduce conclusive determinations about activities within a home in order to be considered informative and thus intrusive. Thesignificance of the DRA data derives from its utility in making informed predictions concerning the probable activities taking placewithin a home.

Predictions of this sort, while not conclusive, nonetheless convey useful private information to the police. Such evidenceof criminal activity, or of a connection to criminality, has previously been considered by this Court to be very personal biographicalinformation. The constitutionality of a search does not hinge on whether there are even more intrusive search methods the police couldhave improperly used. It is unhelpful to compare a DRA search conducted without a warrant to a physical search conducted with awarrant.

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 DRAonly 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 objectivelyreasonable privacy interest the other factors suggest. A reasonable person would not have concluded that his or her expectation ofprivacy in activities inside the home was negated because of the Regulation.

The average consumer signing up for electricity cannot beexpected to be aware of the details of a complex regulatory scheme which permits the utility company to pass information on electricityusage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights. Inaddition, if they were made aware of the Regulation — something that did not happen in this case — reasonable consumers would likelynot read it as permitting the intrusion at issue.

Finally, although the Regulation is not a criminal law, the provisions relied upon by theCrown are explicitly criminal rather than regulatory in purpose. We conclude that G had a reasonable expectation of privacy in the DRAdata 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 notreasonable.

The warrantless use of the DRA was not shown to be reasonably necessary to the police activity, as the police unit in thiscase has demonstrated by virtue of its general policy of applying for warrants before attaching DRAs to transformers located on privateproperty. Moreover, while the Regulation permits the disclosure of “customer information”, it does not authorize the utility company tooperate as an agent for the police for the purpose of spying on consumers. The DRA data that concerns us here was not pre-existinginformation in a utility company subscriber’s file.

Although the utility company might have chosen to collect this data on its customerson 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 notbeen demonstrated that the search was authorized by law and as such, G’s rights under s. 8 of the Charter were infringed. We wouldaffirm the judgment of the Court of Appeal and dismiss the appeal against that judgment to this Court. Cases Cited By Deschamps J. Referred to: R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Cheung, 2005 SKQB 283, 267 Sask. R. 214,rev’d 2007 SKCA 51, 293 Sask.

R. 80; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Kang-Brown, 2008 SCC 18, [2008] 1S.C.R. 456; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; R. v. Johnston, [2002] A.J. No. 843 (QL); R. v. Evans, (SCC), [1996] 1S.C.R. 8; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13.

By Abella J. Referred to: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; Hunter v. Southam Inc., (SCC), [1984] 2S.C.R. 145; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Wise, (SCC), [1992] 1 S.C.R. 527; R. v. Patrick, 2009 SCC 17,[2009] 1 S.C.R. 579; R. v. Colarusso, (SCC), [1994] 1 S.C.R. 20; R. v. Silveira, (SCC), [1995] 2S.C.R. 297; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002]2 S.C.R. 559; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; Charlebois v.

Saint John (City), 2005 SCC 74, [2005] 3 S.C.R. 563. By McLachlin C.J. and Fish J. (dissenting) R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Buhay, 2003 SCC 30,[2003] 1 S.C.R. 631; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. M. (M.R.), (SCC), [1998] 3S.C.R. 393; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Caslake, (SCC), [1998] 1 S.C.R. 51; R. v.Dersch, (SCC), [1993] 3 S.C.R. 768; British Columbia Securities Commission v. Branch, (SCC),[1995] 2 S.C.R. 3; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v.

Plant, (SCC), [1993] 3 S.C.R. 281; R. v.Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Waterfield, [1963] 3 All E.R. 659; Dedman v. The Queen, (SCC),[1985] 2 S.C.R. 2. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 8, 24(2). Code of Conduct Regulation, Alta. Reg. 160/2003, ss. 1(e), 10(1), (3)(f). Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(2), 7(1). Criminal Code, R.S.C. 1985, c. C-46, ss. 326(1)(a), 487, 487.014. Electric Utilities Act, S.A. 2003, c. E-5.1. Authors Cited Lerner, Jack I., and Deirdre K.

Mulligan. “Taking the ‘Long View’ on the Fourth Amendment: Stored Records and the Sanctity of theHome”, 2008 Stan. Tech. L. Rev. 3. Ontario. Information and Privacy Commissioner and Future of Privacy Forum. “SmartPrivacy for the Smart Grid: Embedding Privacyinto the Design of Electricity Conservation”. Toronto: Office of the Information and Privacy Commissioner, November 2009. Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970. APPEAL from a judgment of the Alberta Court of Appeal (Berger, O’Brien and Martin JJ.A.), 2009 ABCA 276, 11 Alta.

L.R.(5th) 73, 460 A.R. 150, 462 W.A.C. 150, 247 C.C.C. (3d) 119, 70 C.R. (6th) 81, 197 C.R.R. (2d) 199, [2010] 1 W.W.R. 642, [2009] A.J.No. 892 (QL), 2009 CarswellAlta 1250, setting aside the accused’s conviction and ordering a new trial. Appeal allowed, McLachlin C.J.and Fish J. dissenting.

Ronald C. Reimer and Susanne Boucher, for the appellant. Charles R. Stewart, Q.C., and David Andrews, for the respondent. Christine Tier, for the intervener the Attorney General of Ontario. Brigitte Bussières and Gilles Laporte, for the intervener the Attorney General of Quebec. David S. Rose and John J. Navarrete, for the intervener the Canadian Civil Liberties Association.

The judgment of Deschamps, Charron, Rothstein and Cromwell JJ. was delivered by [1] Deschamps J. — After an investigation raised suspicions that a marijuana grow operation was likely located in Mr.Gomboc’s home, police approached the utility providing electricity to the home (“Enmax”) and requested that they install a digitalrecording ammeter (“DRA”) on its power line. A DRA allows electricity use to be recorded and allows disclosure of patterns ofelectricity use closely associated with marijuana grow operations. This appeal raises the question of whether Mr.

Gomboc had areasonable expectation of privacy in information about the pattern of use of electricity disclosed by the DRA. In my view, no reasonableexpectation of privacy in that information arises in this case.

Section 8 of the Canadian Charter of Rights and Freedoms is therefore notengaged and the decision of the Alberta Court of Appeal (2009 ABCA 276, 11 Alta. L.R. (5th) 73) should be reversed. [2] I have read the reasons of the Chief Justice and Fish J. I take a different approach to the principles applicable anddo not agree with their view of the evidence adduced in this case. I have also read the reasons of my colleague Abella J. and agree withher conclusion on the outcome of this case.

My reasons for doing so do not rely solely on the governing regulatory scheme but dependinstead on the totality of the circumstances. The nature and quality of the information in this case, its remoteness from the “biographicalcore of personal information which individuals in a free and democratic society would wish to maintain and control from disseminationto the state” (R. v.

Plant, (SCC), [1993] 3 S.C.R. 281, at p. 293), and the legislative scheme permitting disclosure ofcustomer information to authorities investigating an offence combine to weigh against finding a reasonable expectation of privacy in thiscase. 1. Facts and Background [3] The chronology of events surrounding the police investigation and the installation of the DRA is set out in thereasons of Abella J. and need not be repeated.

However, further comments on DRA technology and what it discloses are necessary toexplain why the totality of the circumstances must be assessed in reaching the outcome of this case. [4] Evidence about the DRA was supplied by the testimony of Detective Sergeant Roger Morrison of the CalgaryPolice Service, who was the sole expert to testify. He described a DRA as a small electrical meter that measures power in one-ampereincrements. It is installed by Enmax on the power line delivering electricity to a suspected home either in an underground transformer orin a transformer box located above ground.

If the transformer is not situated on the suspect’s property, as in the present case, the policesimply ask Enmax to install the device on the power line. If the transformer is located on the suspect’s property, police obtain a warrantto gain lawful access to it. [5] The DRA usually remains on the power line for five days, measuring the flow of electricity into the house. Theinformation it records is used to produce a graph which displays the pattern of electricity use.

Investigators then analyze the graph todetect cyclical patterns of electricity use over 12 or 18 hours which support the inference that marijuana is being grown on the premises. The electricity use patterns correspond to 12- and 18-hour periods when lights attached to timers are shone on the marijuana plants tostimulate growth. The periods when the lights are in use are reflected in higher electrical usage on the graph (A.R., at pp. 97-99). [6] A critical factual consideration, on which much of the disagreement in this case turns, is the degree to which theuse of DRA technology reveals private information.

It is common ground that the distinctive electricity use patterns disclosed by theDRA data support a strong inference that a grow operation is on the premises. Such grow operations often involve marijuana.

However,the existence of these distinctive electricity use patterns, though strongly correlated with a marijuana grow operation, does not establishthat marijuana is the crop being grown. [7] I agree with the Chief Justice and Fish J. (at para. 123) that evidence revealed need not be conclusive to beintrusive, but in this case, contrary to their assertion, there was evidence as to the predictive value of the DRA data. Indeed, Det. Sgt.Morrison also gave evidence about what is not revealed by DRA technology in its current form.

The evidence is that there wasabsolutely no reliable inference to be made concerning the occupants or their activities in the house besides the grow operation. Indeed,Det. Sgt. Morrison was asked whether the DRA data disclosed any of the following: - how many occupants live in the residence

- whether any occupants are home at a particular time - whether anyone is watching television - whether anyone is using a computer - whether anyone is listening to a stereo - whether anyone is taking a bath, sitting in a hot tub, or showering - whether anyone is cooking or washing dishes - the gender of the occupants - the political affiliation of the occupants - the sexual orientation of the occupants - where electricity is being used in the house - whether any electrical devices are on a timer His answer to each was “no”.

I find in his answers no room for speculation as to the possibility of DRA data disclosing any information the nature of which Det. Sgt. Morrison said could not be revealed. [ 8 ] Though DRA data are highly reliable predictors of a marijuana grow operation, Det. Sgt. Morrison testified that false positives can and do occasionally occur.

In one instance, the distinctive electricity use patterns usually associated with a marijuana grow operation resulted from electricity being used to grow orchids (A.R., at p. 103). [ 9 ] Investigators analyzing DRA data must therefore always be alert to the possibility that suspicious electricity use patterns might result from an energy-intensive grow operation involving a legitimate crop. Det. Sgt.

Morrison’s testimony indicates that they are. [ 10 ] The evidence was that marijuana grow operations are not investigated using only DRA data and that DRA technology is employed late in an investigation typically initiated following a tip from an organization such as Crime Stoppers and after conventional investigative methods — visual surveillance of suspicious premises, like observing irregular driving patterns, the way the house and yard are kept etc., conversations with neighbours, research about the home available in public records — support the inference that marijuana is being grown in the home.

The hypothetical question of whether DRA data alone can provide sufficient evidence to obtain a search warrant was not put to Det. Sgt. Morrison, and the reasons for not using these data alone were not given by the witness. However, put in context, his testimony reveals that use of DRA data is the culminating point of the investigation : Q Are marijuana grow operation investigations conducted in Calgary using only the results of digital recording ammeters? A No. Q Please explain. A The entire investigation -- it’s quite a long and arduous procedure.

It is again the full reconnaissance of the property, full research of the area, possible discussions with area residents. All of these -- and possible surveillance. All of these -- possibly a [Forward Looking Infra-Red (“FLIR”)]. All of these are investigative aids. The DRA is -- we do it at the end of the investigation, and this is just yet another investigative aid we use to determine if we believe there’s a marijuana grow operation lurking in the home. [A.R., at p. 100] [ 11 ] In fact, DRA data are also used as one more investigative tool to dispel the belief that a grow operation is on the premises .

They even operate in favour of the defence in approximately half of the times : Q You indicated earlier that you have reviewed approximately 800 graphs -- A Yes. Q -- produced by digital recording ammeters, but in only about 400 of those cases search warrants have been applied for and granted. A Yes. Q Please explain why that is. A Well, in the investigation, we may have some indications or some signs through the investigations that a marijuana grow operation may be present.

However, placing or getting a returned graphical printout has showed that it would be inconsistent in that home to have a marijuana grow operation, so we have not executed a search warrant. So although we may have had reasonable and probable grounds to enter on a search warrant for a marijuana grow operation, essentially the DRA graph has eliminated that home, and so we did not go in. [A.R., at pp. 103-4] In that sense, DRA data serve to end an investigation and protect a suspect against more intrusive techniques.

[12] Thus, as Det. Sgt. Morrison indicated, the DRA data are sometimes used even if the police already have reasonableand probable grounds to believe that illegal activities are being conducted in a house. It follows that the legal issue the use of DRA dataraises does not depend on whether or not the Crown, in this case, made a concession on the lack of reasonable grounds to obtain a searchwarrant.

It suffices to point out that the questionable nature of that concession was even mentioned by Martin J.A. in his reasons forjudgment in this case. [13] We must therefore proceed on the following factual footing: the DRA measurements reveal the quantity ofelectricity being used in one-ampere increments over a period of time. Over several days, the DRA can be configured to record a patternof electrical usage. Those patterns in turn can be interpreted by a person with expertise investigating marijuana grow operations tosupport the inference that a grow operation exists on the premises.

A grow operation is strongly correlated with the likelihood thatmarijuana is the crop being grown on the premises but the relationship between the two is not absolute. In practice, the police use theDRA data, along with other fruits of their investigation, to show that there are reasonable and probable grounds justifying the issuance ofa warrant to search the house for evidence of a grow operation producing marijuana. [14] The importance of what the DRA discloses and what inferences the DRA data support is central to this case.

Lowercourts concluding that a reasonable expectation of privacy in the DRA data does exist have speculated that some information about whatis taking place in a house could be inferred (see, e.g., R. v. Cheung, 2005 SKQB 283, 267 Sask. R. 214, at paras. 45-62, where the caselaw is reviewed, rev’d 2007 SKCA 51, 293 Sask. R. 80). For example, Martin J.A. in the Alberta Court of Appeal wrote: “DRAinformation must, as a matter of common sense, also disclose biographical or private information; for example, the approximate numberof occupants, when they are present in the home, and when they are awake or asleep.

This applies to all homes, regardless as to whetherthey are being used for marihuana grow operations” (para. 17). In the same vein, the Ontario Information and Privacy Commissionervoiced concerns about the prospect of smart meters revealing information about activities taking place in the home, a factor which theintervener the Canadian Civil Liberties Association (“CCLA”) submits should militate in favour of recognizing a reasonable expectationof privacy in the case at bar. These assertions are not supported by any evidence on the record.

They are only speculations on techniquesthat have not been used or evaluated in this case. The only evidence adduced on this point is that of Det. Sgt.

Morrison on behalf of theCrown, which contradicts any suggestion that the DRA data disclose anything more than the possibility of a grow operation in the house.While my colleague Abella J. finds the DRA “intrusive enough to yield usually reliable inferences as to the presence within the home ofone particular activity: a marijuana grow operation” (para. 81), I am of the view that the DRA is a technique that is more protective ofpersonal information than most other investigation techniques. It reveals nothing about the intimate or core personal activities of theoccupants.

It reveals nothing but one particular piece of information: the consumption of electricity. [15] The DRA data adduced at trial are in graph form and are consistent with Det. Sgt. Morrison’s testimony about whatinformation about the home is disclosed by the DRA. It is reproduced in an appendix to these reasons. The information turned over topolice consists of a single-line graph recording patterns of electricity use over a five-day period. The untutored eye would derive verylittle meaning from viewing this chart.

If told that the line graph represents electricity use in a house, it is possible to detect that amountsof electricity used in the house vary from day to day and over the course of a day. However, the graph shows nothing of the purposes forwhich the electricity is being used. The sum total of what an ordinary person would glean from the chart is the total consumption ofelectricity in the house and that use is variable and not constant, the latter fact being obvious to anyone familiar with the routine of ahome.

Any further inferences regarding activities taking place in the home require not only specialized training in the

interpretation ofthe DRA graph but, most importantly, additional information about the home obtained from other sources. [16] The following analysis proceeds in accordance with this factual backdrop. 2. Analysis 2.1 Applicable Legal Principles [17] This Court’s foundational decision in Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145,established that s. 8 of the Charter protects a right to privacy. Principles delineating the right to privacy laid down in Hunter apply withequal force today.

Section 8 of the Charter protects “people, not places” (p. 159). Like all Charter rights, the s. 8 right to privacy is notabsolute — instead, the Charter protects a reasonable expectation of privacy. Dickson J. (as he then was) framed determination of areasonable expectation of privacy in the following terms: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlementto a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’sinterest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order toadvance its goals, notably those of law enforcement. [Emphasis in original; pp. 159-60.] [18] In R. v.

Edwards, (SCC), [1996] 1 S.C.R. 128, a majority of this Court held that a “reasonableexpectation of privacy is to be determined on the basis of the totality of the circumstances” (para. 45). In subsequent cases, thereasonable expectation of privacy analysis proceeded in two steps, asking whether the accused had a subjective expectation of privacyand whether that expectation of privacy was objectively reasonable (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 19; R. v.Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; and R. v.

Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579). [19] In Tessling, Binnie J. wrote that because privacy is a varied and wide-ranging concept, the s. 8 jurisprudence hasevolved to recognize a number of privacy interests, namely: (

i) personal privacy, involving bodily integrity and the right not to have our bodies touched or explored; (ii) territorial privacy, involving varying expectations of privacy in the places we occupy, with privacy in the home attracting heightenedprotection because of the intimate and private activities taking place there; (iii) informational privacy, involving “the claim of individuals, groups, or institutions to determine for themselves when, how,

and to what extent information about them is communicated to others” (para. 23, quoting A. F. Westin, Privacy and Freedom (1970), atp. 7). Tessling also recognized that these categories, though analytically useful, do not necessarily exist in isolation and may overlap. [20] If, in the first instance, a reasonable expectation of privacy is determined to exist, a search intruding upon thatinterest will engage s. 8 of the Charter. Because the Charter protects only against unreasonable searches, the next step after a reasonableexpectation of privacy has been established is to inquire whether the search is reasonable.

A search involving a Charter-protectedprivacy interest will be reasonable if the police are authorized by law to conduct the search, if the law authorizing the search isreasonable, and if the search is conducted in a reasonable manner (R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at p. 278).In most cases, this requires obtention of a search warrant requiring police to satisfy a judicial authority that there are reasonable andprobable grounds to believe that a search will reveal evidence of an offence (see, e.g., Criminal Code, R.S.C. 1985, c. C-46, s. 487).

Incertain situations where only a lowered expectation of privacy is recognized, police must instead have a reasonable suspicion that asearch will uncover evidence of an offence before they may undertake it (see, e.g., Kang-Brown).

Where no reasonable expectation ofprivacy is established, no threshold justification is required because the search does not trigger Charter protection (see, e.g., Patrick). [21] Thus, before reaching the question of whether a search is reasonable within the meaning of the Charter, the accusedmust first establish that a reasonable expectation of privacy existed to trigger the protection of s. 8. It is this issue which I now address. 2.2 A Reasonable Expectation of Privacy in Home Electricity Use Information [22] The present case straddles two categories of privacy interests recognized in the jurisprudence.

The primary privacyinterest asserted is a claim to informational privacy protecting the electricity use information which Enmax obtained after installing theDRA and turned over to the police. Territorial privacy is also relevant because the information sought involved an activity taking placewithin Mr. Gomboc’s home. [23] The facts of this case also place it at the intersection of two of the Court’s earlier cases where informational andterritorial privacy interests overlapped. The first is Plant, which established that a homeowner has no expectation of privacy inelectricity use records maintained by a utility.

The circumstances of this case also resemble those in Tessling, where the privacy interestasserted involved heat patterns emanating from a private home and photographed by police overflying it in an aircraft. In both cases,information was sought because it was capable of supporting in some measure the inference that marijuana was being grown in a privatehome.

The principles laid down in both cases consequently have considerable relevance to the case at bar, although their applicabilitymust take into account the peculiarities of this case, notably Enmax’s role as a third party cooperating with a police request and the Codeof Conduct Regulation, Alta. Reg. 160/2003, governing the confidentiality of Enmax’s customer information. Informational andterritorial privacy remain useful tools for organizing the analysis, and they provide the headings under which I assess whether theexpectation of privacy asserted is objectively reasonable.

I reiterate before undertaking that analysis that context is crucial and thatreasonable expectation of privacy is assessed in the totality of the circumstances. 2.2.1 Subjective Expectation of Privacy [24] The available evidence makes clear that Mr. Gomboc exhibited a strong desire for privacy in his habits of electricityuse. The electricity meter on the property — the usual device employed to measure the quantity of electricity being used in a home —had been deliberately bypassed to prevent it from performing this function.

The only reason can be a desire to shield his electricity usefrom detection. [25] In addition, the Court recognized in Patrick that a subjective expectation of privacy can be presumed in respect ofactivities taking place in the home (para. 37). [26] I conclude, then, that Mr.

Gomboc did exhibit a subjective expectation of privacy in the pattern of electricity usedisclosed by the DRA monitoring. 2.2.2 Is the Expectation of Privacy Reasonable in the Totality of the Circumstances? 2.2.2.1 The Informational Privacy Interest [27] The Charter guarantee of informational privacy protects the right to prevent certain personal information fromfalling into the hands of the state. The scope of constitutional protection will vary depending upon the nature of the information and thepurpose for which it is made available (R. v.

Colarusso, (SCC), [1994] 1 S.C.R. 20, at p. 53; Patrick, at para. 38). [28] In Plant, Sopinka J. rejected a categorical approach to informational privacy, protecting only information that is“personal and confidential” (p. 293).

He framed the constitutional protection given to informational privacy in the following purposiveterms: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. [p. 293] Sopinka J. also outlined factors that could form the basis for a reasonable expectation of privacy which included “the nature of theinformation itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, theplace where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated” (p.293). [29] The facts underlying Plant are similar to those in the case at bar.

The police had consulted electricity use records of

a home as part of a marijuana grow operation investigation. Information about relative electricity use in the neighbourhood was included alongside visual observations about the home in an affidavit to obtain a search warrant. The accused’s argument that the electricity consumption records were obtained through a warrantless search that violated s. 8 of the Charter was rejected by this Court for two reasons.

The first involved the nature of the information, about which Sopinka J. said: The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant’s life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence. [p. 293] A further reason for rejecting the reasonable expectation of privacy claim took into account the relationship between the accused and the utility.

That relationship did not involve confidence or a contractual obligation of confidentiality. Instead, the utility’s policy was to permit police access to its electronic records via a password-protected computer. Electricity consumption records of a particular address were available to the public at large (p. 294). [ 30 ] As in Plant , the nature and quality of the information disclosed by the DRA and the absence of an expectation of confidentiality in respect of Enmax’s customer information form part of the totality of the circumstances informing the reasonableness of the privacy expectation in the present case.

I will examine the impact of each, starting with the absence of a confidentiality expectation. [ 31 ] The terms governing the relationship between Enmax and its customers are highly significant. Mr. Gomboc’s expectation of privacy is informed by the Code of Conduct Regulation enacted pursuant to the Electric Utilities Act , S.A. 2003, c. E-5.1. The regulation permits disclosure of customer information “to a peace officer for the purpose of investigating an offence if the disclosure is not contrary to the express request of the customer” (s. 10(3)(f)). Mr.

Gomboc did not request that his customer information be kept confidential. The Code of Conduct Regulation dovetails with s. 487.014 of the Criminal Code , which confirms that a peace officer may ask a person to voluntarily provide information that the person is not otherwise prohibited by law from disclosing.

Their combined effect establishes that not only was there no statutory barrier to Enmax’s voluntary cooperation with the police request, but express notice that such cooperation might occur existed. [ 32 ] Rather than concluding, as my colleague Abella J. does, that the legislative scheme is sufficient to erode the expectation of privacy in this case, I prefer to view it as one factor amongst many which must be weighed in assessing the totality of the circumstances. I do not need to pronounce on the issue of whether this legislative scheme alone is sufficient or not to dissolve any expectation of privacy.

Taking that approach, I do not endorse the other extreme position taken by the Chief Justice and Fish J. that the average consumer could not be expected to know that consumption data obtained by the electricity provider may be subject to varying degrees of confidentiality pursuant to relevant legislation.

In our highly regulated energy supply environment, it would be unreasonable for anyone to expect energy data not to be dealt with in one way or another by the rules organizing that industry. [ 33 ] That Enmax was at liberty to disclose the information weighs heavily against giving the asserted expectation of privacy constitutional recognition. However, in view of the multitudinous forms of information that are generated in customer relationships and given that consumer relationships are often governed by contracts of adhesion (while noting that in this case Mr.

Gomboc was at liberty to prevent the disclosure but did not elect to do so), there is every reason for proceeding with caution when deciding what independent constitutional effect disclosure clauses similar to those in the Code of Conduct Regulation may have on determining a reasonable expectation of privacy. [ 34 ] Even if the regulation had been silent on disclosure of energy consumption, the quality and nature of the information disclosed to the police would nonetheless have informed the totality of the circumstances surrounding the 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. This is consistent with Binnie J.’s comment in Tessling that the expectation of privacy is a “normative rather than a descriptive standard” (para. 42). Thus, the fact that the person claiming an expectation of privacy in information ought to have known that the terms governing the relationship with the holder of that information allowed disclosure may not be determinative.

Rather, 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. [ 35 ] This brings us to the central issue in this case: 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. [ 36 ] The Chief Justice and Fish J., Abella J., and the majority in the Court of Appeal seem to accept that the DRA discloses some information about activities or lifestyle choices associated with the home.

I do not share this conclusion. The evidence available on the record offers no foundation for concluding that the information disclosed by Enmax yielded any useful information at all about household activities of an intimate or private nature that form part of the inhabitants’ biographical core data. [ 37 ] The only evidence on the record is the uncontradicted expert testimony of Det. Sgt. Morrison. It is summarized above, but I reiterate that when presented with a list of private and intimate activities and asked whether the DRA revealed any information about these activities, he answered “no”.

The DRA data disclosed no personal information comparable to that contained in the garbage put out for collection in which this Court recently held that there was no reasonable expectation of privacy in Patrick . Indeed, the DRA reveals very little about what is taking place in the home. As the Saskatchewan Court of Queen’s Bench aptly noted, “the DRA would give no information at all as to the normal activities going on in the home and no intimate details of the occupants’ lifestyles” ( Cheung , at para. 62).

The Alberta Court of Queen’s Bench also noted that “a next-door neighbour or person on the street would likely have more information on what was going on in a house than the information obtained from the DRA” ( R. v. Johnston , [2002] A.J. No. 843 (QL), at para. 6 ). [ 38 ] Investigators evidently request installation of the DRA for a specific purpose. The DRA data support a strong inference that a grow operation is located in the home, which in turn is strongly correlated with the cultivation of marijuana. The

respondent and my colleague Abella J. conclude that the data’s reliability in supporting the inference that a grow operation is present in the home weighs in favour of finding a reasonable expectation of privacy in that information. For the Chief Justice and Fish J., the strength of the inferences makes this case distinguishable from Tessling and Plant , where no expectation of privacy was found in heat signature and electricity consumption information also used to support the inference that a grow operation existed in a home.

With respect for the contrary view, I disagree that the stronger inference that the DRA data support meaningfully distinguishes the information they disclose from that in which this Court concluded that there is no reasonable expectation of privacy. As observed by the Saskatchewan Court of Appeal, the distinction involves a “difference of degree only and not a difference that changes the substantive result of the analysis” ( Cheung , at para. 23).

Indeed, the nature of the information has not changed nor is what was disclosed by the DRA about private and intimate activities in the home any more revealing than the information at issue in Tessling and Plant . [ 39 ] Focussing on the inferential strength of the DRA data in isolation concentrates the analysis too narrowly. We must consider instead the totality of what it is capable of disclosing and the degree to which it invades the privacy of the residents of the home.

The criminality of the activity the DRA discloses does not remove it from the ambit of Charter- protected privacy rights ( Patrick , at para. 32 ). However, as this Court said in Patrick , “[t]he issue ought to be framed in terms of the privacy of the area or thing being searched and the potential impact of the search on the person [or thing] being searched, not the nature or identity of the concealed items” (para. 32).

Viewed in this light, the DRA’s disclosure about electricity use has no greater impact than electricity consumption records or the home’s heat signature upon the occupants of the home and the privacy of their activities therein. [ 40 ] The DRA’s capabilities depend of course on the state of the technology at the time of its use. We are cautioned by the intervener the CCLA about the looming prospect of smart meters being deployed across the country and the possibility of data they record revealing how electricity is being used in homes.

A similar concern arose in Tessling about the theoretical possibility of what FLIR technology might eventually reveal about activities in the home. The conclusion there applies with equal force to the case at bar: . . . the reasonableness line has to be determined by looking at the information generated by existing FLIR technology, and then evaluating its impact on a reasonable privacy interest.

If, as expected, the capability of FLIR and other technologies will improve and the nature and quality of the information hereafter changes, it will be a different case, and the courts will have to deal with its privacy implications at that time in light of the facts as they then exist. [Emphasis in original; para. 29.] The CCLA’s submissions about smart meters raise concerns about theoretical capabilities and potential future uses of technology rather than realistic privacy concerns applicable in the present case.

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.

Having concluded that the evidence adduced does not establish that the DRA is meaningfully more invasive of privacy than the electricity consumption records in Plant or the heat signatures in Tessling , I would, as this Court did in the latter case, leave the privacy implications of the more evolved technology to be decided when a comprehensive evidentiary record has been developed. [ 41 ] A final factor affecting the informational privacy analysis and diminishing Mr.

Gomboc’s expectation of privacy in the information disclosed by the DRA is the fact that his interest in the electricity use data was not exclusive. His electricity consumption history was not confidential or private information which he had entrusted to Enmax. As the supplier of electricity, Enmax had a legitimate interest of its own in the quantity of electricity its customers consumed. Consequently, it is beyond dispute that Enmax was within its rights to install a DRA on a customer’s line on its own initiative to measure the electricity being consumed.

That it was not a regular practice by Enmax in no way diminished its freedom to install the DRA. It is also beyond dispute that if Enmax installed the DRA on its own initiative and discovered the same suggestive pattern of electricity use, it could have turned this information over to police. [ 42 ] The Chief Justice and Fish J. take exception to what they variously describe as Enmax being co-opted or conscripted by the police to engage in a search which the authorities could not have conducted independently.

They raise the spectre of letter carriers and delivery persons being asked to pry into private homes in the course of their ordinary duties. On the facts of this case, such comparisons are unavailing. Enmax was not an interloper exploiting its access to private information to circumvent the Charter at the behest of the state. As the Crown stresses in its submissions, Enmax’s role is limited to the wholly voluntary cooperation of a potential crime victim. The coercive undertones evoked by describing Enmax as being co-opted or conscripted are entirely inapposite to the case at bar.

As noted above, if the police had merely notified Enmax of a potential electricity theft and the utility had proceeded on its own initiative to install a DRA and turn over what it disclosed, no Charter violation would have arisen. Only by misguidedly elevating form over substance would a contrary conclusion result solely because Enmax installed the DRA subsequent to a police request for cooperation.

Indeed, as mentioned, it is clear from s. 487.014 of the Criminal Code that no prior judicial authorization is necessary to cooperate with an investigation provided disclosure of the information requested is not otherwise prohibited by law. As the Code of Conduct Regulation establishes no such prohibition, Enmax’s role is of no import to the Charter analysis. [ 43 ] Considerations relevant to the informational privacy analysis therefore lead to the conclusion that no expectation of privacy in the electricity consumption information was objectively reasonable.

Disclosing information about electricity consumption is not invasive or revelatory of the respondent’s private life. It does not yield anything meaningful in terms of biographical core data that attracts constitutional protection. Disclosure was explicitly permitted by the applicable regulatory scheme. Enmax had an interest in the information, which was not entrusted to it with any expectation of confidentiality, and it employed legitimate means to gather the information.

None of the factors relevant to the informational privacy analysis support a conclusion that the information in question was of the sort that attracts Charter protection. 2.2.2.2 The Territorial Privacy Interest [ 44 ] The marijuana grow operation in this case was situated in Mr. Gomboc’s home. The DRA data at issue disclosed information about electricity consumption taking place in the home.

A territorial privacy interest involving the home is therefore a relevant aspect of the totality of the circumstances informing the reasonable expectation of privacy determination. [ 45 ] The case law has long recognized a heightened constitutional expectation of privacy in our dwellings ( R. v. Evans ,

(SCC), [1996] 1 S.C.R. 8; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297; R. v. Feeney, (SCC), [1997] 2 S.C.R. 13; Tessling and Patrick). Viewed purposively, the rationale behind the elevated expectation of privacy is thatalthough s. 8 of the Charter protects “people, not places”, the home is where our most intimate and personal activities often take place(Tessling, at para. 22).

In recognizing a heightened expectation of privacy in the home, the law thus employs “the notion of place as ananalytical tool to evaluate the reasonableness of a person’s expectation of privacy” (para. 22 (emphasis in original)). [46] As is true of all constitutional rights, the Charter’s protection of territorial privacy in the home is not absolute. TheConstitution does not cloak the home in an impenetrable veil of privacy.

To expect such protection would not only be impractical; itwould also be unreasonable. [47] In discharging their duties, many legitimate avenues are open to police seeking information about activities takingplace in the home. As in the present case, they are free to view the home while in the public areas surrounding it. They may take up aposition in a publicly accessible location and note what or who is entering and leaving the home. They may ask neighbours about whatthey have observed taking place around the home.

None of this information, though capable to varying degrees of supporting inferencesabout what is taking place in the home, attracts Charter protection. Indeed, in the case at bar, police had already exhausted theselegitimate means to build a foundation for the belief that a marijuana grow operation was taking place in the home.

I note that they hadalready spoken to neighbours, learning that the living pattern of the occupants was odd for the neighbourhood; the neighbours hadnoticed unusual condensation, steam emanating from the house (the house was “sweating”) and closed blinds on many windows, andwhile standing on an adjacent public footpath, Constable McCallum could be “absolutely certain” that it was marijuana she wassmelling. [48] Also noteworthy here is that the home itself was never directly the object of a search.

The location where the searchtook place was not the home but the transformer box where the power lines entering the home could be accessed. After some confusionin the courts below about whether the transformer was located on Mr. Gomboc’s property, it was common ground before this Court thatit was not. Accordingly, no direct territorial privacy interest is engaged in this case. [49] Recent cases have recognized overlapping informational and territorial privacy when activities suspected of takingplace in the home are under investigation (Tessling and Patrick).

Where, as in the case at bar, there was no direct search of the homeitself, the informational privacy interest should be the focal point of the analysis. The fact that information about the home was beingsought requires that the informational privacy analysis be alive to the heightened privacy interest that the law recognizes for our homes.

However, although informational and territorial privacy interests concerning the home may overlap in certain situations, this Court heldunder similar circumstances in Tessling that the fact that a home was involved “is an important factor but it is not controlling and must belooked at in context and in particular . . . in relation to the nature and quality of the information made accessible” by the alleged search(para. 45). [50] Both the majority in the Court of Appeal and my colleagues place undue emphasis, in my view, on the fact that theinformation sought by police involved the home, effectively treating it as controlling without adequately addressing what it revealedabout the home.

The fact that the home was the focus of an otherwise non-invasive and unintrusive search should be subsidiary to whatthe investigative technique was capable of revealing about the home and what information was actually disclosed. I have analyzed thenature and quality of the information about the home and activities taking place therein and concluded that it reveals nothing meaningfulrelated to the Charter’s protection of biographical core information of an intimate and personal nature.

Where this is true, the fact thatthe search includes a territorial privacy aspect involving the home should not be allowed to inflate the actual impact of the search to apoint where it bears disproportionately on the expectation of privacy analysis. [51] A final observation relevant to the territorial privacy aspect of this case is that the DRA as it is presently employedcan in fact enhance overall territorial privacy. A DRA is generally used once the investigation is quite advanced to confirm or dispelsuspicion of a marijuana grow operation founded on other evidence.

When the DRA does not disclose electricity use cycles consistentwith the presence of a marijuana grow operation in the home, police abandon the investigation. Where this happens, DRA technologyenhances territorial privacy by ending an investigation before it proceeds to its most invasive stage: a thoroughgoing search of the homeauthorized by a search warrant.

Viewed in the totality of the circumstances, then, the effects of the DRA on territorial privacy are by nomeans solely detrimental to privacy but in fact have actually spared numerous homeowners the inconvenience of police entering andsearching their homes. [52] Thus it would be a strange world if the police could have access to the electricity billing which yields less accurateinformation, but not to DRA data for the very reason that they are more accurate.

Canadians would lose the benefit of this technologyand would be exposed to more intrusive investigation methods. [53] I would therefore conclude that nothing in the territorial privacy analysis displaces the conclusions I have drawn onthe informational privacy aspects of this case. 3. Conclusion [54] I would therefore allow the appeal and restore the conviction entered at trial.

The reasons of Binnie, LeBel and Abella JJ. were delivered by [55] Abella J. — In Alberta, the terms of the relationship between a homeowner and his or her utility company are setout by a recently enacted public statute (Electric Utilities Act, S.A. 2003, c. E-5.1, Code of Conduct Regulation, Alta. Reg. 160/2003 (the“Regulation”)). One of those terms, set out in a clear and unambiguous provision, states that a homeowner can request the confidentialityof “customer information”. If this confidentiality is sought, the utility company cannot disclose the information to anyone, including thepolice.

If, however, no such request is made, the utility company is authorized to disclose it to the police for the purpose of investigatingan offence. [56] This case involves a homeowner who did not request confidentiality. Nor did he challenge the constitutionality of

the Regulation . As a result, the police were able to obtain information from the utility company about electricity consumption in his home. Inferences drawn from that information allowed the police to obtain a search warrant. The search of the home revealed a marijuana grow operation. The homeowner argued that the police conduct in obtaining the information from the utility company breached his expectations of privacy and triggered a violation of s. 8 of the Canadian Charter of Rights and Freedoms .

To succeed, he was obliged to prove that his expectations were, objectively, reasonable. [ 57 ] In my view, given the fact that the information emanated from his home, the most protected of privacy spheres, he may well have succeeded but for the existence of the Regulation , which makes any expectation of privacy objectively unreasonable. The issue is not whether the homeowner had a subjective expectation of privacy — he can reasonably be assumed to have had one. This case turns on the reasonableness of that expectation objectively .

Because the Regulation dictates the terms of a homeowner’s relationship with the utility company , it therefore also defines the objective reasonableness of the expectations he or she may reasonably have about any privacy interests inherent in that relationship. [ 58 ] In the absence of either the homeowner’s request for confidentiality or a Charter challenge, i t is my respectful view that the 2003 public statute determinatively diminished the objective reasonableness of the customer’s expectation of privacy in this case and, accordingly, the strength of his s. 8 claim.

Background [ 59 ] On January 27, 2004, Constable Steve Kelly of the Calgary Police Service Drug Unit informed Constable Patricia McCallum, also of the Drug Unit at that time, about a residence in Calgary that he believed, based on his observations, might be involved in producing marijuana.

He had observed condensation, steam, and covered windows at the residence, and had smelled marijuana near it. [ 60 ] That same afternoon, Constable McCallum and a partner from the RCMP conducted a reconnaissance of the residence as part of the Southern Alberta Marihuana Investigative Team (“SAMIT”), a joint forces operation between the Calgary Police Service and the RCMP.

Constable McCallum made the following observations: • Unlike other windows in the area, those of the residence under observation had varying levels of condensation, and some of its windows “appeared to be wet”; • Four of the five windows on the south side of the residence had blinds that were closed; • The back of the residence was surrounded by a brown wooden fence, approximately six feet high, through which Constable McCallum could see patio doors and an adjacent window with closed blinds; • Constable McCallum briefly caught the smell of growing marijuana while walking on the public pathway to the south of the house (about 10 to 15 feet back from the edge of the residence), and also caught this smell when standing in front of the residence, about 20 feet from it; • Two vents on the north side of the residence had a buildup of ice; • Unlike on other houses in the area, ice crystals, about six inches in length, were projecting out of the “chimney-type of opening” on the roof of the house and “steam-like condensation” was coming out of it; • There was steam emanating from under the deck.

Constable McCallum also made inquiries of neighbours. They advised her that they had heard strange noises coming from inside the residence and had noticed things at the residence that were odd for the neighbourhood: condensation on the windows; an appearance that the house was “sweating”; open windows in the middle of the winter; and, in the evening, no lights when other houses had lights on.

To Constable McCallum, these observations appeared to be consistent with a marijuana grow operation. [ 61 ] Based on Constable McCallum’s observations, the police contacted the utility company to request the installation of a digital recording ammeter (“DRA”) . A DRA is a small electrical meter that measures electrical power flowing into a residence in one- ampere increments. It is installed by the utility company, usually for an average of five days. After this period, a graph is produced by the utility company, showing electricity usage.

Because marijuana is typically grown in 12- and 18- hour light cycle s , patterns indicating such cyclical, high usage of electricity are often indicative of a marijuana grow operation within the home. [ 62 ] The owner of the home was Daniel James Gomboc. Mr. Gomboc’s electricity was supplied by Enmax, the electrical service provider for the area. [ 63 ] The DRA was attached on January 29, 2004, and it remained in place until February 2, 2004. The DRA graph showed a pattern of cycling of approximately 18 hours, a pattern consistent with a marijuana grow operation.

[64] Constable McCallum re-attended at Mr. Gomboc’s residence to conduct a second external viewing on February 2,2004. She noted some new staining under one of the windows, changes in the levels of condensation, and that the ice stack on top of theroof had grown from six to eight inches in one week.

A neighbour told Constable McCallum that he/she had observed a great deal ofsteam coming out of the vent on the roof of the residence, which continued through the evening and night, and that a white male with noshirt on had opened the blinds on one of the windows, wiped off the condensation, and then closed the blinds again. [65] On the basis of her observations and the information provided to her, including the DRA graph, ConstableMcCallum obtained a search warrant.

As a result of the search, the police seized 165.33 kg of bulk marijuana, 206.8 g of processed andbagged marijuana located in a freezer, and numerous items relating to a marijuana grow operation. [66] On January 6, 2005, Mr. Gomboc was charged with possession of marijuana for the purposes of trafficking andproduction of marijuana contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He was also chargedwith theft of electricity under s. 326(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [67] A voir dire was conducted at the beginning of the trial to consider Mr. Gomboc’s application to exclude theevidence disclosed by the search on the basis that no warrant had been obtained prior to the installation of the DRA. Crown counsel attrial took the position that, on these facts, without the DRA evidence, there were no reasonable and probable grounds to obtain a searchwarrant.

At the hearing before us, not surprisingly, the Crown questioned why such a concession had been made in the face of so muchother physical evidence, but acknowledged that at this late stage of the process, it was bound by the trial Crown’s position. [68] At the voir dire, Detective Roger Morrison, a member of the SAMIT and an expert in the area of the investigation ofmarijuana grow operations, testified that while a DRA cannot provide information about many personal aspects of the home, it can helpin determining whether a marijuana grow operation is taking place.

In discussing the potential significance of DRA data, DetectiveMorrison stated: We look for the cyclical pattern or cyclical use of electricity in growing marijuana. . . . What this graph allows us to do is it gives us information on approximate 12 and/or 18-hour [electricity] use. It allows us, withexperience, to draw an inference on what the electrical use in there -- the inference that marijuana may be grown inside. It gives usreasonable and probable grounds. He indicated that the level of amperage shown in the cycling pattern on the graph showing DRA data from Mr.

Gomboc’s house was“certainly not” consistent with electricity usage at a normal household, even if its residents had placed most or all of their electricalappliances on 12- or 18-hour timers. [69] Detective Morrison also testified about the high degree of reliability of DRA data in identifying homes in which amarijuana grow operation is taking place.

He indicated that in the approximately 400 cases in which he had seen DRA information usedto obtain a search warrant, there was only one where no evidence of a marijuana grow operation was found. [70] The trial judge, Erb J., relied on the Regulation as statutory support for police access to the DRA data. She held thatthe Regulation provides “legislative support for police access to the electrical consumption information and provides a sense of what acitizen’s reasonable expectations of privacy regarding electrical consumption records are”.

Since there was no evidence that Mr.Gomboc made any “express request” for any level of confidentiality of his electrical consumption records, as allowed by the Regulation,the Regulation’s effect was to considerably lessen the degree of privacy that he could expect in the information at issue. The DRAevidence was therefore admitted and Mr. Gomboc was found guilty of the drug​related offences. The Crown agreed to the dismissal ofthe theft of electricity charge. [71] A majority in the Alberta Court of Appeal allowed Mr. Gomboc’s appeal and ordered a new trial (2009 ABCA 276,11 Alta. L.R. (5th) 73).

Martin J.A. concluded that Mr. Gomboc had a subjective expectation of privacy in the DRA information whichwas also objectively reasonable. He noted that the DRA technology was much more intrusive and revealing than the Forward LookingInfra-Red (“FLIR”) technology at issue in R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, and “must, as a matter of common sense,also disclose biographical or private information” (para. 17).

He also concluded that the Regulation could not be interpreted to imply thehomeowner’s consent to allow a utility company to gather information at the request of the state. [72] O’Brien J.A. dissented, concluding that Mr. Gomboc could not “reasonably expect privacy with respect to records ofhis electrical usage, when the law provides that such information may be disclosed to the police without his consent” (para. 86). [73] For the reasons that follow, I agree with O’Brien J.A.’s conclusion. Analysis [74]

Section 8 of the Charter states: 8. Everyone has the right to be secure against unreasonable search or seizure. The issue in this appeal is whether the police investigative technique in this case of requesting Enmax to install a DRA without a warrantintruded on Mr. Gomboc’s reasonable expectation of privacy and violated s. 8 of the Charter. [75] Since Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, it has been accepted that s. 8 of theCharter protects “people, not places”, including their right to privacy (p. 159). Dickson J. (as he then was) explained how s. 8 protects

privacy interests: The guarantee of security from unreasonable search and seizure only protects a reasonable expectation.

This limitation on the rightguaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlementto a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’sinterest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order toadvance its goals, notably those of law enforcement. [Emphasis in original; pp. 159-60.] (See also R. v.

Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757.) [76] The personal nature of the protection was emphasized in R. v. Plant, (SCC), [1993] 3 S.C.R. 281,where Sopinka J. concluded that

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