This week, the Supreme Court of Canada released a decision that has important implications for the interpretation and application of section 8 of the Canadian Charter of Rights and Freedoms, as well as for privacy law generally. The problematic decision, which includes two sets of reasons concurring in the result and a strong dissent by the Chief Justice and Justice Fish, seems likely to provoke significant debate and potential uncertainty in its application.
In R. v. Gomboc, 2010 SCC 55, the Court considered the limits on the ability of law enforcement to use as evidence subscriber records obtained without a warrant from third party service providers, and more broadly, offered guidance as to what constitutes a reasonable expectation of privacy with respect to such records.
The decision considered the validity of a search warrant obtained based on evidence collected without a warrant from a device that collected detail data respecting the electrical power usage of a homeowner suspected of operating a marijuana “grow op”. This device, known as a digital recording ammeter (DRA) was installed by the electrical utility at the behest of police, who suspected a marijuana growing operation, in order to determine whether electrical usage patterns were consistent with those typical of grow ops. The resulting data was then used to help obtain a warrant to search the premises.
A majority of the court found that the resulting search of the premises was not unreasonable, and therefore did not offend the Charter, overturning a decision of the Alberta Court of Appeal and restoring the original conviction by the trial judge; however, this decision was supported by two different sets of reasons. One block of justices considered that no reasonable expectation of privacy arises with respect to the DRA data, since it revealed nothing about the intimate or core activities of the occupants, and its disclosure to police without a warrant was explicitly permitted by regulation. Another block of justices held that there would have been a reasonable expectation of privacy, but for the regulation authorizing disclosure to police. The dissenting reasons found that there was a reasonable expectation of privacy in the data, which was not diminished by the existence of an “obscure” and difficult to understand regulation, which did not, in any case, allow for the provision of data to police that the utility did not collect in the ordinary course of business.
While the decision was specific to the use of DRAs to record electrical consumption, it may have broader implications for information collected by or available to a range of service providers with access to a wide range of data concerning the private lives of Canadians, including courier and delivery services, fuel suppliers, and telephone, Internet and television service providers. Not only does this divided judgement raise questions about what type of service provider data attracts a reasonable expectation of privacy, it may also cast doubt on the enforceability of contractual or legislative provisions that allow for certain types of disclosure and use of personal information without an individual’s consent, including certain exceptions to the Personal Information Protection and Electronic Documents Act or the proposed provision in Bill C-52, the Investigating and Preventing Criminal Electronic Communications Act, which would require the provision to police of telephone and Internet subscriber data without a warrant.