Ontario Court of Appeal Established New Privacy Rights – Utility Consumption Data and Grow Ops
If you are a utility monitoring consumption data, think twice before providing any of that information to the police. You may need to ensure the police first provide you with a warrant or other judicial authorization specifically requesting the information. The Ontario Court of Appeal, distinguishing itself from existing Supreme Court of Canada decisions, held in R. v. Orlandis-Habsburgo, 2017 ONCA that “information, like the energy consumption data, that is capable of supporting inferences that certain activities are going on inside a home can fall under the umbrella of a reasonable expectation of privacy, depending on a consideration of the totality of the circumstances.” In so holding, Justice Doherty, J. A. for the majority found that the seizure (use and collection) of energy consumption data, which had been provided to the police by the utility and that lead to the arrest in a commercial grow-op, contravened section 8 of the Charter of Rights and Freedoms.
The decision goes to great pains to distinguish the facts at issue from those on which the Supreme Court of Canada had previously opined and to further develop the privacy laws of individuals. The Ontario Court of Appeal held that “…the energy consumption data supplied by Horizon permitted a strong inference as to a certain ongoing activity within the residence. Activities conducted within one’s home, a bastion of personal privacy throughout the history of the common law, fall at the center of the zone of personal privacy” and therefore favours the existence of the reasonable expectation of privacy, a precondition to establishing an unreasonable search and seizure by the police.
The facts of the case, as set out by the Ontario Court of Appeal, are as follows:
Individuals rented a home in a residential area in Hamilton, Ontario. They operated a commercial-sized marijuana grow-op in the basement. Horizon Utilities Corp. (“Horizon”), their energy provider, noted a pattern of electricity use in the residence that was consistent with the operation of a marijuana grow-op. Horizon forwarded information pertaining to the electricity use in the residence to the police. The police commenced an investigation that included observations of the residence. The police requested and obtained additional information from Horizon about the ongoing electricity use at the residence and electricity use by comparable customers. Ultimately, the police applied for a search warrant for the residence, relying on, in part, the energy consumption information provided to them by Horizon. A search warrant was issued. The police executed the warrant and found many marijuana plants and packaged marijuana in the basement. The appellants were charged with production of, and possession for the purposes of trafficking in, marijuana and possession of the proceeds of crime.
In the end, the Court of Appeal would not criticize the actions of the police given the state of the law existing at the time of the search. It found that “under the existing case law (Gomboc and Plant), the police understanding that they were entitled to use the data was reasonable.” The Court of Appeal also would not exclude the evidence obtained as a result of the search because, given the facts at issue and the case law in existence at the time, the examination and use of the data by the police would not significantly undermine the values protected by s. 8 of the Charter.