Brian Bowman – On the Cutting Edge

The Supreme Court of Canada (SCC) released an important decision today that considered whether an individual home owner had a reasonable expectation of privacy in electric meter data.

The police had asked a local utility company to attach a digital recording ammeter (DRA) to the electric meter on a home in order to monitor electrical usage. The data gleaned from the DRA and from other sources was then used to obtain a warrant to search the home. The search resulted in exposing a marijuana grow op. The defence argued that the installation of the DRA infringed the privacy rights of the accused to be secure against unreasonable search contained in Canada’s Charter of Rights and Freedoms.

A critical factual consideration, on which much of the disagreement in the case turned, was the degree to which the use of DRA technology reveals private information. The SCC ultimately decided that DRA technology merely indicates electricity use, not what the electricity was used for, so it was a reasonable loss of privacy.

Here’s an excerpt from the decision:

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.