R. v. Gomboc

R. v. Gomboc
Collection
Supreme Court Judgments
Date
2010-11-24
Neutral citation
2010 SCC 55
Report
[2010] 3 SCR 211
Case number
33332
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 33332
Decision Content
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 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.
Cases Cited
By Deschamps J.
Referred to: R. v. Plant, [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., [1984] 2 S.C.R. 145; R. v. Edwards, [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] 1 S.C.R. 456; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Johnston, [2002] A.J. No. 843 (QL); R. v. Evans, [1996] 1 S.C.R. 8; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Feeney, [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., [1984] 2 S.C.R. 145; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Feeney, [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, [1996] 1 S.C.R. 128; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Dersch, [1993] 3 S.C.R. 768; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Plant, [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, [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 the Home”, 2008 Stan. Tech. L. Rev. 3.
Ontario. Information and Privacy Commissioner and Future of Privacy Forum. “SmartPrivacy for the Smart Grid: Embedding Privacy into 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 digital recording ammeter (“DRA”) on its power line. A DRA allows electricity use to be recorded and allows disclosure of patterns of electricity use closely associated with marijuana grow operations. This appeal raises the question of whether Mr. Gomboc had a reasonable expectation of privacy in information about the pattern of use of electricity disclosed by the DRA. In my view, no reasonable expectation of privacy in that information arises in this case. Section 8 of the Canadian Charter of Rights and Freedoms is therefore not engaged 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 and do 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 with her conclusion on the outcome of this case. My reasons for doing so do not rely solely on the governing regulatory scheme but depend instead on the totality of the circumstances. The nature and quality of the information in this case, its remoteness from the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (R. v. Plant, [1993] 3 S.C.R. 281, at p. 293), and the legislative scheme permitting disclosure of customer information to authorities investigating an offence combine to weigh against finding a reasonable expectation of privacy in this case.
1. Facts and Background
[3] The chronology of events surrounding the police investigation and the installation of the DRA is set out in the reasons of Abella J. and need not be repeated. However, further comments on DRA technology and what it discloses are necessary to explain 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 Calgary Police Service, who was the sole expert to testify. He described a DRA as a small electrical meter that measures power in one-ampere increments. It is installed by Enmax on the power line delivering electricity to a suspected home either in an underground transformer or in a transformer box located above ground. If the transformer is not situated on the suspect’s property, as in the present case, the police simply ask Enmax to install the device on the power line. If the transformer is located on the suspect’s property, police obtain a warrant to 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. The information it records is used to produce a graph which displays the pattern of electricity use. Investigators then analyze the graph to detect 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 to stimulate 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 the use of DRA technology reveals private information. It is common ground that the distinctive electricity use patterns disclosed by the DRA 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 establish that 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 be intrusive, 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 was absolutely 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 reasonable and probable grounds to believe that illegal activities are being conducted in a house. It follows that the legal issue the use of DRA data raises does not depend on whether or not the Crown, in this case, made a concession on the lack of reasonable grounds to obtain a search warrant. It suffices to point out that the questionable nature of that concession was even mentioned by Martin J.A. in his reasons for judgment in this case.
[13] We must therefore proceed on the following factual footing: the DRA measurements reveal the quantity of electricity being used in one-ampere increments over a period of time. Over several days, the DRA can be configured to record a pattern of electrical usage. Those patterns in turn can be interpreted by a person with expertise investigating marijuana grow operations to support the inference that a grow operation exists on the premises. A grow operation is strongly correlated with the likelihood that marijuana is the crop being grown on the premises but the relationship between the two is not absolute. In practice, the police use the DRA data, along with other fruits of their investigation, to show that there are reasonable and probable grounds justifying the issuance of a 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. Lower courts concluding that a reasonable expectation of privacy in the DRA data does exist have speculated that some information about what is 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 case law is reviewed, rev’d 2007 SKCA 51, 293 Sask. R. 80). For example, Martin J.A. in the Alberta Court of Appeal wrote: “DRA information must, as a matter of common sense, also disclose biographical or private information; for example, the approximate number of occupants, when they are present in the home, and when they are awake or asleep. This applies to all homes, regardless as to whether they are being used for marihuana grow operations” (para. 17). In the same vein, the Ontario Information and Privacy Commissioner voiced concerns about the prospect of smart meters revealing information about activities taking place in the home, a factor which the intervener the Canadian Civil Liberties Association (“CCLA”) submits should militate in favour of recognizing a reasonable expectation of privacy in the case at bar. These assertions are not supported by any evidence on the record. They are only speculations on techniques that 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 the Crown, 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 of one particular activity: a marijuana grow operation” (para. 81), I am of the view that the DRA is a technique that is more protective of personal information than most other investigation techniques. It 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.
[15] The DRA data adduced at trial are in graph form and are consistent with Det. Sgt. Morrison’s testimony about what information about the home is disclosed by the DRA. It is reproduced in an appendix to these reasons. The information turned over to police consists of a single-line graph recording patterns of electricity use over a five-day period. The untutored eye would derive very little meaning from viewing this chart. If told that the line graph represents electricity use in a house, it is possible to detect that amounts of 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 for which the electricity is being used. The sum total of what an ordinary person would glean from the chart is the total consumption of electricity in the house and that use is variable and not constant, the latter fact being obvious to anyone familiar with the routine of a home. Any further inferences regarding activities taking place in the home require not only specialized training in the interpretation of the 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., [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 with equal force today. Section 8 of the Charter protects “people, not places” (p. 159). Like all Charter rights, the s. 8 right to privacy is not absolute — instead, the Charter protects a reasonable expectation of privacy. Dickson J. (as he then was) framed determination of a reasonable 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 right guaranteed by s. 8 , whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original; pp. 159-60.]
[18] In R. v. Edwards, [1996] 1 S.C.R. 128, a majority of this Court held that a “reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances” (para. 45). In subsequent cases, the reasonable expectation of privacy analysis proceeded in two steps, asking whether the accused had a subjective expectation of privacy and 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 has evolved 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 heightened protection 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), at p. 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 expectatio