R. v. Gomboc , 2010 SCC 55, R. v. Gomboc, 2010 SCC 55, 2010 SCC 55 (2010)

Docket Number:33332
 
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SUPREME COURT OF CANADA

Citation: R. v. Gomboc, 2010 SCC 55

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.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. gomboc

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 Marijuana Investigation Team about a residence in Calgary that he believed might be involved in producing marijuana. That same afternoon, officers conducted a reconnaissance of the residence and made inquiries of neighbours. Based on the observations of the officers and the neighbours questioned, the police contacted the utility company to request the installation of a digital recording ammeter ("DRA") which would measure electrical power flowing into the residence which was owned by G. The resulting DRA graph showed a pattern of cycling of approximately 18 hours, a pattern consistent with a marijuana grow operation. An officer re-attended at G's residence to conduct a second external viewing. On the basis of her observations and the information provided to her, including the DRA graph, the officer obtained a search warrant. As a result of the search, the police seized 165.33 kilograms of bulk marijuana, 206.8 grams of processed and bagged marijuana located in a freezer, and numerous items relating to a marijuana grow operation. G was charged with possession of marijuana for the purposes of trafficking and production of marijuana and theft of electricity. A voir dire was conducted to consider G's application to exclude the evidence disclosed by the search on the basis that no warrant had been obtained prior to the installation of the DRA. The trial judge relied on the Code of Conduct Regulation made pursuant to Alberta's Electric Utilities Act as statutory support for police access to the DRA data. The DRA evidence was therefore admitted and G was found guilty of the drug-related offences. A majority of the Alberta Court of Appeal allowed G's appeal and ordered a new trial, concluding that G had a subjective expectation of privacy in the DRA information which was also objectively reasonable. The majority further concluded that the Regulation could not be interpreted to imply the homeowner's consent to allow a utility company to gather information at the request of the state.

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

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

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

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

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

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

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