Case Report – BCCA says residential safety inspections require a warrant

On May 20th, a five-judge panel of the British Columbia Court of Appeal held that provisions of the British Columbia Safety Standards Act violate section 8 of the Charter to the extent they authorize the warrantless entry and inspection of residential premises for the purpose of inspecting safety risks that may be related to marihuana grow-operations.

The SSA gives safety officers the power to enter premises, including residences, to conduct an inspection provided “there are reasonable grounds to do so.” It also enables local governments to obtain information about hydro accounts that average over 93 kwH per day in a billing cycle to facilitate inspection. The background facts involved an inspection of a 6,800 square foot home with a indoor pool, a sauna/steam room, a hot tub, a greenhouse and central air conditioning. One of the residents testified the house had never been used as a grow-op.

The Court held that an inspection for grow-op related safety hazards is not a typical regulatory inspection. Most significantly, the Court held that the legislation invites a particularly intrusive search of a private residence because the violations under inspection are not easy to find. As stated by the applicants:

Searches under the SSA are intrusive. They involve walking through the entire residence, searching electrical panels, and very involved searches of attic spaces, and crawl spaces. Indeed, the Chambers Judge commented on the level of “thoroughness” of the search when discussing police involvement in same.

The Court also held that a search for residences used as grow-ops is stigmatizing and that obtaining an administrative warrant would not frustrate the objectives of the inspection regime.

Akinstall v. City of Surrey, 2010 BCCA 250.

Case Report – SCC says confidentiality promises made in newsgathering only subject to case-by-case privilege

Earlier this morning, the Supreme Court of Canada affirmed the validity of a search warrant and assistance order that was served on the National Post in 2002 and that required it to provide the RCMP with a document and envelope received from a confidential informant. Though the panel wrote three separate judgements, all nine judges held that privilege claims made by newsgatherers to protect information received in confidence should be justified on a case-by-case basis.

Background

In 2001, Andrew McIntosh of the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a holding company of former Prime Minister Jean Chretien. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. On an ex parte basis, the RCMP obtained a search warrant and an assistance order that became the matter of the appeal.

The Post resisted because McIntosh had promised anonymity to his informant (who said he simply was passing the documents on) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

The Post relied on the common law of privilege, section 2(b) of the Charter, and at the Supreme Court of Canada, section 8 of the Charter. The Canadian Civil Liberties Association and the British Columbia Civil Liberties Association, among others, intervened in support of the Post at the Supreme Court of Canada.

Majority judgement – Serious crimes need to be investigated

Binnie J. wrote for the seven judge majority that dismissed the Post’s appeal from the Ontario Court of Appeal.

Though the majority recognized a public interest in news gathering through confidential sources, it rejected arguments made by the CCLA and the BCCLA for special protected status in the form of Charter-based immunity and a common law class privilege. It held that such status would be too much a blow to the administration of justice and, notably, personal privacy. It was particularly concerned that the scope of the requested privilege would be hard to define in a manner that reflected the true public interest at stake given both the variety of means used to newsgather and the range of persons who now engage in newsgathering:

The position of the CCLA and the BCCLA is built on the premise that protection of confidential sources should be treated as if it were an enumerated Charter right or freedom. But this is not so. What is protected by s. 2(b) is freedom of expression. News gathering, while not specifically mentioned in the text of s. 2(b) is implicit in news publication, but there are many techniques of news gathering and it carries the argument too far, in my view, to suggest that each of those news gathering techniques (including reliance on secret sources) should itself be regarded as entrenched in the Constitution. Chequebook journalism is also a routine method of gathering the news, but few would suggest that this too should be constitutionalized. Journalists are quick to use long-range microphones, telephoto lenses or electronic means to hear and see what is intended to be kept private (as in the case of then Finance Minister Marc Lalonde whose budget had to be amended because a cameraman captured parts of what were intended to be secret budget documents on Mr. Lalonde’s desk). Such techniques may be important for journalists (who, unlike prosecutors, have to get along without the power of subpoena), but this is not to say that just because they are important that news gathering techniques as such are entrenched in the Constitution,

…

There are cogent objections to the creation of such a “constitutional” immunity. As recently pointed out in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper. To throw a constitutional immunity around the interactions of such a heterogeneous and ill-defined group of writers and speakers and whichever “sources” they deem worthy of a promise of confidentiality and on whatever terms they may choose to offer it (or, as here, choose to amend it with the benefit of hindsight) would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy.

…

Journalistic-confidential source privilege has not previously been recognized as a class privilege by our Court (Moysa v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572), and has been rejected by courts in other common law jurisdictions with whom we have strong affinities. The reasons are easily stated. First is the immense variety and degrees of professionalism (or the lack of it) of persons who now “gather” and “publish” news said to be based on secret sources. In contrast to the legal profession there is no formal accreditation process to “licence” the practice of journalism, and no professional organization (such as a law society) to regulate its members and attempt to maintain professional standards. Nor, given the scope of activity contemplated as journalism in Grant v. Torstar, could such an organization be readily envisaged.

The CCLA and the BCCLA position may have been undermined by the Post itself, which accepted that a confidential source could be protected by a case-by-case privilege analysis that is informed by the Charter guarantee of freedom of expression and the role of the media. The majority accepted this position, and did so while recognizing that, “The role of investigative journalism has expanded over the years to help fill what has been described as a democratic deficit in the transparency and accountability of our public institutions.”

The majority also held that the onus to satisfy all four criteria for a case-by-case privilege rests with the media. It articulated various factors relevant to the balancing of interests called for by the fourth criterion and, on the facts, held that the balance weighed in favour of production. The majority gave particular weight to the fact that the search was for physical evidence of a serious alleged crime.

In addition to the privilege finding, the majority also held that the search warrant and assistance order were not unreasonable within the meaning of section 8 of the Charter for reasons I will not describe.

Le Bel J. and Abella J. differ by degree

Le Bel J. concurred with the majority except for one aspect the majority’s section 8 finding; Le Bel J. held that the media ought to have been given notice of the application for a search warrant but that the lack of notice did not render the search unreasonable.

Abella J. dissented. She applied the balancing test to reach a different outcome than the majority. Her approach did not differ from the majority’s in principle, but does suggest a different degree of willingness to allow the media’s investigative process to preempt a law enforcement investigation. The majority said that a denial of criminal involvement that is accepted by the media “is not a sufficient ground to put an end to a serious criminal investigation.” In contrast, Abella J. said, “Where, as here, the journalist has taken credible and reasonable steps to determine the authenticity and reliability of his source, one should respect his professional judgement and pause, it seems to me, before trespassing on the confidentiality which is the source of the relationship.” Abella J. also held that the the media ought to have been given notice of the application for a search warrant as required by section 8 of the Charter.

Conclusion

This case will no doubt be the subject of significant comment. My very early and basic thought is that the media claims do seem somewhat undermined by the rise of citizen journalism, as evident most strongly in the lengthy quotes I’ve excerpted above. Last December in Grant v. Torstar the Supreme Court of Canada recognized the impact of blogging, and now Twitter, all the while making claims to special rights based on bare status as a “journalist” harder to make.

R. v. National Post, 2010 SCC 16.

Case Report – BCCA says aerial surveillance by telphoto zoom lens not a search

Today, the British Columbia Court of Appeal held that the police did not violate section 8 of the Charter by conducting aerial surveillance of a rural property from in excess of 1000 feet by using a digital camera equipped with a telephoto lens.

The police obtained a search warrant based partly on the surveillance evidence. The pictures showed plants of a “distinctive green” colour through the opaque walls of a number of greenhouses. The grounds for the search warrant were also based on the location of the greenhouses on the rural property, which suggested they were meant to be obscured from public view, and a variety of observations taken from an adjacent property.

The Court held there was no search that engaged section 8 of the Charter. In doing so, it said:

The greenhouses were visible from the air and anyone in an airplane, helicopter, or other aerial device would have been able to see what the police observed and photographed. Anyone using binoculars would have seen what the police saw and the zoom lens employed by the police is readily available at retail stores. It is not advanced or unique technology and did not permit the police to determine what activities were taking place inside the greenhouses that were not otherwise observable given the translucent walls of the structures. Additionally, the police were able to see a marihuana plant through a greenhouse door left open. Obviously, the plant was thus in public view.

The Court also held that the police did not need to announce their presence on the property given it was a large rural property. It said, “To require the police to first alert persons working in or around the greenhouses was, as the trial judge accepted, impractical and an invitation to those present to flee, destroy evidence, or set up an ambush.”

R. v. Kwiatkowski, 2010 BCCA 124.

Case Report – Ontario C.A. comments on faculty e-mail privacy

On February 17th, the Ontario Court of Appeal affirmed an order that required images of two work computers of a university professor to be sent to France for use in a terrorism investigation. In its earlier leave decision, the Court commented generally on a faculty member’s privacy interest in her work e-mails.

Simmons J.A., sitting in chambers, made a decision to grant leave last December 22nd. In doing so, he commented on the applicant’s privacy interest in her work computer based on evidence of faculty collective agreement provisions that granted a right of privacy in personal communications. He did not have the university’s acceptable use policy before it, and refused to take judicial notice that there was a privacy-limiting policy in place. Simmons J.A. said:

I am not prepared to take judicial notice that a similar acceptable-use policy exists in this case. As I see it, the work and research generally done by university professors is qualitatively different than done by high school teachers [as in the Cole case] and could require a heightened level of personal privacy and security. In the absence of evidence on the subject, I am not prepared to assume that an acceptable use policy exists or that university network administrators were entitled to access the applicant’s private e-mail or electronic files or to monitor her Internet usage.

On the contrary, in my view, the collective agreement referred to above suggests that Carleton University professors are entitled to use their work computers for personal communications and research and that they have an objectively reasonable expectation of privacy in relation to personal electronic data. Moreover, because computers can be used to store large quantities of personal information (e.g. banking records, personal contacts, personal communications, etc.), in my opinion it is at least arguable that the applicant’s claim to a reasonable expectation of privacy in her electronic data is a matter of significant importance to her.

Though very qualified and therefore limited in its authority, this statement reveals a different attitude than is commonly expressed about stored communications on employer systems whether inside or outside of the university sector.

On February 17th, a three-judge panel of the Court dismissed the appeal without commenting on the reasonable expectation of privacy issue. The Court held that the order was lawful because there were reasonable grounds to suspect that the terrorism suspect was using the applicant’s work computers to e-mail others.

France (Republic of) v. Tfaily (2009), 98 O.R. (3d) 161 (C.A.) [not online] and 2010 ONCA 127 (CanLII).

Case Report – Court says government must not use Norwich orders to investigate crime

On January 4th, Justice Donald Brown of the Ontario Superior Court of Justice made the following statement in dismissing a motion for a Norwich order (for pre-action production) that was brought by the Attorney-General for the purpose of tracing funds in anticipation of an application for forfeiture of money:

Norwich orders should not be used for purposes of criminal investigation. The Criminal Code and Provincial Offences Act both contain tools, available in specified circumstances, to assist in the investigation of crime. The equitable jurisdiction of the courts on which rests the power to issue Norwich orders should not be used to assist in criminal investigations. In my view courts must be vigilant in ensuring that requests for Norwich orders by the AGO, or any other government department or agency, are limited to the purpose of assisting in initiating civil proceedings, and not subtly converted into a device to investigate crime. Requests by government actors to compel disclosure of personal information from third parties, such as financial institutions, engage the consideration of privacy interests which are protected by section 8 of the Canadian Charter of Rights and Freedoms. To ensure the continued protection of such interests in the context of civil proceedings initiated by the government, the courts should screen and measure carefully requests by government parties for the issuance of the “rare and extraordinary” device of the Norwich order.

On the facts, Justice Brown dismissed the motion because the Attorney-General’s materials did not demonstrate a sufficient link between the information requested and the tracing of funds recoverable under the Civil Remedies Act.

Attorney General of Ontario v. Two Financial Institutions, 2010 ONS 47 (CanLII).

Case Report – Man C.A. affirms quashing of orders to produce media tapes

On December 8th, the Manitoba Court of Appeal affirmed the quashing of two Criminal Code production orders issued against the CBC and CTV.

The orders were for production of audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.

In August 2008, Joyal J. of the Manitoba Court of Queen’s Bench considered the sufficiency of the supporting information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. He held that the informant ought to have disclosed:

that the police had been given prior notice of the press conference but had chosen not to attend;
the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.

Joyal J. held that these deficiencies, as they related to the media’s privacy interest, led to a flawed exercise of judicial discretion and quashed the production orders as unreasonable.

The Manitoba Court of Appeal held that Joyal J. articulated and applied the proper legal test, did not err in his findings of fact and did not err in finding the police search unreasonable.

Canadian Broadcasting Corporation v. Maintoba (Attorney General), 2009 MBCA 122.

Case Report – RCMP allowed to access flight manifest without a warrant

On November 6th, the Nova Scotia Court of Appeal held that the RCMP did not conduct an unreasonable search by reviewing a WestJet passenger manifest without a warrant and without making a formal request.

The context and the background

The issue of law enforcement’s access to personal information held by business organizations has arisen in a number of recent criminal cases, and it is becoming common for courts to judge the reasonableness of a police search in light of standards set by PIPEDA. PIPEDA restricts regulated organizations from disclosing personal information without consent, but includes the following key exemption:

7(3) For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge and consent of the individual only if the disclosure is…

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province…

In this case, the RCMP reviewed a passenger manifest from a domestic flight, identified a passenger who had paid by cash shortly before the flight and who only had one piece of luggage and proceeded to search that passenger’s luggage. It found drugs and laid charges.

Trial judge finds Charter breach

In December of last year, Mr. Justice Simon MacDonald of the Nova Scotia Supreme Court held the RCMP breached PIPEDA because it did not make a “request” required by section 7(3)(c.1) given its “cozy” relationship with WestJet:

It might be a fair comment to say the officers had assumed they had permission to look at the manifest from their daily discussions and associations with the staff at Westjet. However, in my mind that is not a satisfactory answer to the problem. There were certain obligations upon the RCMP officers in reviewing the manifest which were legislated under PIPEDA and applied when they went to look at this manifest without a warrant. Mr. Plimmer said Westjet put a protocol on procedures in place for the police to follow in order to see manifests. The police were aware of the procedure they had to follow. I find they didn’t do so in this case, but rather cavalierly walked into Westjet and simply started looking at manifests.

In addition to signaling that the procedural requirements in section 7(3)(c.1) are likely to be read strictly, the trial judgement was notable for its close consideration of WestJet’s privacy policy. The policy said that WestJet might be “required by legal authorities” to disclose personal information without consent, but did not say that WestJet would voluntarily cooperate with law enforcement. MacDonald J. said the policy “seems to emphasize that WestJet would only collect and disclose what is required by law and nothing more.” This weighed in favour of finding the search to be unreasonable and therefore unconstitutional.

MacDonald J. then excluded the evidence based on an application of the Collins test.

Court of Appeal disagrees

The Court of Appeal held that MacDonald J. erred by finding that the RCMP did not have legal authority for the collection of information and by equating a breach of PIPEDA with a breach of the Charter right to be free from unreasonable search and seizure. It then conducted its own contextual expectation of privacy analysis and held that section 8 of the Charter was not engaged in the circumstances. It noted the following in its analysis:

It could not infer a subjective expectation of privacy given the information used by the RCMP was not particularly private – that is, the defendant purchased a ticket from Vancouver to Halifax at the last minute with cash and checked a single bag all in public view.
The place searched was a third-party’s office, not a home or not even a business premises.
Westjet’s privacy policy, with its reference to being “required by authorities” to disclose certain information, was nonetheless a warning to passengers.
Given the exception to the consent rule in section 7(3)(c.1)(ii), PIPEDA does not support an expectation of privacy.
The police tactic was limited, in that the RCMP relied on a drug courier profile and sought only information that fit that profile.
The information collected by the RCMP did not go to the defendant’s “biographical core” of information. The Court said it “amounted to no more than Westjet’s record of Mr. Chehil’s public activities in transacting business with the airline.”
The fact that the passenger record had a space where more sensitive personal information could be entered (e.g. food preferences) did not support an expectation of privacy. The Court said this fact was too theoretical to count.

Thanks to David Fraser for the tip on this important case.

R. v. Chehil, 2009 NSCA 111.

Case Report – Court finds warantless search for ISP subscriber info unreasonable, admits evidence

On October 2nd, Pringle J. of the Ontario Court of Justice held that the police violated section 8 of the Charter by obtaining the identity of an individual suspected of possessing and sharing child pornography by making simple letter request to an ISP. She also admitted the evidence despite the Charter breach, and in doing so made some significant comments about the impact of terms of service on internet user privacy.

There have been a number of recent Canadian cases about whether the police can investigate internet crime by asking an ISP to reveal the identity of the individual linked to an IP address that is associated with unlawful and anonymous activity. The cases turn on whether this investigatory tactic violates a reasonable expectation of privacy. Two factors have featured strongly in the analysis (1) the nature of the information obtained by the police and (2) the contractual terms between the individual and ISP.

Unlike some other judges who have decided the issue, Justice Pringle held that the nature of the information obtained by a police request to an ISP does go to an individual’s biographical core. She explained that this tactic allows the police obtain the identity of an otherwise anonymous internet user and not simply an ISP subscriber’s name and address:

Once the police accessed Mr. Cuttell’s name and address, they were able to link his identity to a wealth of intensely personal information. Linking his name to the shared folder under his IP address, police learned a great deal about Douglas Cuttell and his lifestyle: namely in this case, his interest in adult pornography, obscenity and child pornography, which were all revealed by his choice of shared files.

Pringle J.’s treatment of the contract is even more significant. Like other judges before her, she held the that a contract between the ISP subscriber and ISP can negate an otherwise reasonable expectation of privacy. In the case before Pringle J., however, the Crown did not prove the specific contract entered into between the defendant and his ISP and therefore failed to negate what Pringle J. called a “premise of confidentiality” regarding one’s ability to engage in anonymous internet use. Her judgement suggests that reliance on ISPs alone does not negate an otherwise reasonable expectation of privacy in anonymous internet use, but the specific terms of service an individual agrees to may change this.

Ultimately, ISP terms of service did have a significant influence on the outcome in this case even though the Crown failed to prove the defendant’s specific contract. Pringle J. decided to admit the impugned evidence despite the proven Charter breach, in part, because ISPs often put customers on notice that they will make disclosures to law enforcement. She said:

I also take into account that while the privacy of subscriber information is important and can provide a critical link to personal information, a subscriber name and address does not have a great deal of intrinsic privacy on its own. As the Crown pointed out, Mr. Cuttell’s name was publicly available on Canada411, and his shared folder was also publicly available to anyone wanting to share child pornography. Many Internet Service Providers appear to contract out of their obligation of confidentiality with subscribers in similar circumstances, and accordingly it would be difficult to argue that there is a high expectation of privacy in this information: see Grant at para. 77.

In conclusion, Pringle J. said that the practice of contracting for disclosure is “unfortunate,” but also suggested that the courts will often be powerless to grant a Charter remedy in the face of such private action.

Thanks to David Fraser for breaking the news this case. For his related opinion piece on Slaw, click here.

R. v. Cuttell, 2009 ONCJ 471 (CanLII).

U.S. court establishes search and seizure protcol for electronically stored information

This is just to give readers a note of the fascinating computer search decision released by the Ninth Circuit on August 26th.

The decision is called Comprehensive Drug Testing. It is about the execution of search warrants in support of a United States government investigation in to steroid use in professional baseball. The warrants authorized the seizure of records relating to ten players to whom the government had probable cause to believe had tested positive in a drug testing program agreed to by the baseball league and its players association. Though the authorization was for specific records relating to ten players, the government seized a directory that contained records relating to all players who had tested positive in the program, reviewed the entire directory and then served subpoenas demanding production of the broader set of records that it had just seized.

Chief Judge Kozinski questioned whether the government’s asserted need to take the whole directory was bona fide, but in any event held that the government breached the Fourth Amendment by its manner of dealing with the directory. Specifically, he held the government acted unlawfully by not following a protocol that isolated the records it had authorization to seize before conducting a review. He then articulated the following five guidelines for the search and seizure of electronically stored information, necessary because co-mingling and other concerns will often make broad seizure and off-site search a necessity.

1. Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

2. Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

This is reminiscent of the civil search protocol articulated by the Supreme Court of Canada in Celanese, but I am not aware of a Canadian criminal law equivalent. Anyone?

Case Report – Alberta C.A. splits on police use of electricity consumption recording technology

On August 21st, the Alberta Court of Appeal issued a split judgement in which the majority held that the police violated an accused person’s Charter rights by using a digital recording ammeter to gather information in support of a grow-op investigation.

An digital recording ammeter (or “DRA”) is a device that is installed on a power line to measure electrical consumption. In this case, the police asked an electrical service provider to install one to measure electrical consumption at a residence they suspected of housing a grow-op. The service provider agreed, and later produced a graphical representation of showing power consumption over five days. The graph showed a pattern of 18-hour cycles of high consumption, which is consistent with the presence of a marijuana grow-op. Partly on the strength of this evidence, the police obtained a warrant that led them to lay charges.

Whether the police violated the accused person’s reasonable expectation of privacy by conducting a warantless “DRA search” was the key issue in the case. It turned on (1) the quality of the electricity consumption information (and whether it went to the accused person’s “biographical core of personal information”) and (2) the effect of a regulatory provision promulgated under the Alberta Electrical Utilities Act that expressly permits Alberta service providers to disclose customer information to the police without consent unless contrary to their express wishes. This statutory permission, in the circumstances, was also backed by a contractual provision that warned the accused person that his information could be provided to law enforcement “for drug investigations.”

The majority held that the police violated the accused person’s reasonable expectation of privacy. It distinguished the Supreme Court of Canada decisions in both Plant (no expectation of privacy in electrical billing records) and Tessling (no expectation of privacy in heat patterns emanating from a residence) based on the quality of the information. It explained:

The DRA technology at issue in this case is not only different from the FLIR technology considered in Tessling, it is also more intrusive and more revealing. Here, the expert evidence confirmed that a DRA records the flow of electricity to a residence over a period of time. In doing so, it measures the amount of electricity being used at a given point, based on one amp increments. While the DRA does not indicate the source of electrical consumption within the residence, it produces information as to the amount of electricity being used in a home and when it is being used, all over a significant period of time. A pattern of excessive electrical use over a 12-hour or 18-hour cycle indicates to the police that a marihuana grow operation is likely being undertaken at the subject property, as marihuana is typically grown indoors using 12 or 18‑hour light cycles.

Notwithstanding the evidence of the police expert, Sgt. Morrison, 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: Patrick at para. 32. I note that in R. v. Tessling 2003 CanLII 8861 (ON C.A.), (2003), 63 O.R. (3d) 1 at para. 69, 168 O.A.C. 124 (C.A.), Abella J.A., as she then was, observed that many innocent, internal activities in the home, such as taking a bath or using lights at unusual hours, are intensely personal. Likewise in R. v. Plant, 1993 CanLII 70 (S.C.C.), [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203, McLachlin J., as she then was, albeit in dissent, observed (at 302-03) that mere billing records can disclose “important personal information”, including; “…what sort of activities were probably taking place there. The records tell a story about what is happening inside a private dwelling, the most private of places.”

On the effect of the statutory permission, the majority construed the regulation strictly, and only to permit the disclosure of recorded information about electrical consumption:

In my opinion, the Regulations must be strictly construed, and not interpreted to imply the homeowner’s consent in allowing the utility to gather, at the behest of the state, information that is not useful to his or her relationship with the utility. The Regulations cannot mean that the utility can be used, without judicial authorization, as an investigative arm of the police to gather evidence about what is happening inside the home, unless the consumer has forbidden it. Trespassing on a homeowner’s property is conduct the police themselves are not permitted to engage in (see Kokesch, Evans), and I do not understand that the Regulations were intended, nor constitutionally able, to empower police agents to do what they themselves can not legally do. In my opinion, the Regulations do no more than permit the utility to share pre-existing customer information with the police unless the customer has objected.

O’Brien J.A. issued a very thorough dissent, finding that there was no reasonable expectation of privacy the DRA record disclosed to the police, a finding he noted is the same as reached by the Saskatchewan Court of Appeal in R. v. Cheung. O’Brien J.A. reasoned that Plant and Tessling were not distinguishable and supported a finding that the DRA graph the service provider gave to the police did not reveal any part the accused person’s “biographical core of personal information.” He also reasoned that the Electrical Utilities Act regulation and the related service contract clearly permitted disclosure in the circumstances and therefore weighed heavily against an expectation of privacy.

Note that O’Brien J.A. also made two alternative findings. He held that the search was also reasonable because it was authorized by statute and, in the further alternative, by common law police powers.

R. v. Gomboc, 2009 ABCA 276.