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
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