Monday, 28 August 2017 12:01

Ontario Court of Appeal revists reasonable expectation of privacy in electricity consumption records

Written by  Teresa Scassa
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In R. v. Orlandis-Habsburgo the Ontario Court of Appeal revisited the Supreme Court of Canada decisions in R. v. Spencer, R. v. Gomboc, and R. v. Plant. The case involved the routine sharing of energy consumption data between an electricity provider and the police. Horizon Utilities Corp. (Horizon) had a practice of regularly reviewing its customers’ energy consumption records, including monthly consumption figures as well as patterns of consumption throughout the day. When Horizon encountered data suggestive of marijuana grow operations, they would send it to the police. This is what occurred in Orlandis-Habsburgo. The police responded by requesting and obtaining additional information from Horizon. They then conducted observations of the accused’s premises. The police used a combination of data provided by Horizon and their own observation data to obtain a search warrant which ultimately led to charges against the accused, who were convicted at trial.

The defendants appealed their convictions, arguing that their rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed when the police obtained data from Horizon without a warrant. The trial judge had dismissed these arguments, finding that the data were not part of the “biographical core” of the defendants’ personal information, and that they therefore had no reasonable expectation of privacy in them. Further, he ruled that given the constellation of applicable laws and regulations, as well as Horizon’s terms of service, it was reasonable for Horizon to share the data with the police. The Court of Appeal disagreed, finding that the appellants’ Charter rights had been infringed. The decision is interesting because of its careful reading of the rather problematic decision of the Supreme Court of Canada in Gomboc. Nevertheless, although the decision creates important space for privacy rights in the face of ubiquitous data collection and close collaboration between utility companies and the police, the Court of Appeal’s approach is highly contextual and fact-dependent.

A crucial fact in this case is that the police and Horizon had an ongoing relationship when it came to the sharing of customer data. Horizon regularly provided data to the police, sometimes on its own initiative and sometimes at the request of the police. It provided data about suspect residences as well as data about other customers for comparison purposes. Writing for the unanimous court, Justice Doherty noted that until the proceedings in this case commenced, Horizon had never refused a request from the police for information. He found that this established that the police and Horizon were working in tandem; this was important, since it distinguished the situation from one where a company or whistleblower took specific data to the police with concerns that it revealed a crime had been committed.

The Court began its Charter analysis by considering whether the appellants had a reasonable expectation of privacy in the energy consumption data. The earlier Supreme Court of Canada decisions in Plant and Gomboc both dealt with data obtained by police from utility companies without a warrant. In Plant, the Court had found that the data revealed almost nothing about the lifestyle or activities of the accused, leading to the conclusion that there was no reasonable expectation of privacy. In Gomboc, the Court was divided and issued three separate opinions. This led to some dispute as to whether there was a reasonable expectation of privacy in the data. In Orlandis-Habsburgo, the Crown argued that seven out of nine judges in Gomboc had concluded that there was no reasonable expectation of privacy in electricity consumption data. By contrast, the appellants argued that five of the nine judges in Gomboc had found that there was a reasonable expectation of privacy in such data. The trial judge had sided with the Crown, but the Court of Appeal found otherwise. Justice Doherty noted that all of the judges in Gomboc considered the same factors in assessing the reasonable expectation of privacy: “the nature of the information obtained by the police, the place from which the information was obtained, and the relationship between the customer/accused and the service provider.” (at para 58) He found that seven of the judges in Gomboc had decided the reasonable expectation of privacy issue on the basis of the relationship between the accused and the utility company. At the same time, five of the justices had found that the data was of a kind that had the potential to reveal personal activities taking place in the home. He noted that: “In coming to that conclusion, the five judges looked beyond the data itself to the reasonable inferences available from the data and what those inferences could say about activities within the home.” (at para 66) He noted that this was the approach taken by the unanimous Supreme Court in R. v. Spencer, a decision handed down after the trial judge had reached his decision in Orlandis-Habsburgo. He also observed that the relationship between the customer and the service provider in Orlandis-Habsburgo was different in significant respects from that in Gomboc, allowing the two cases to be distinguished. In Gomboc, a provincial regulation provided that information from utility companies could be shared with the police unless customers explicitly requested to opt-out of such information sharing. No such regulation existed in this case.

Justice Doherty adopted the four criteria set out in Spencer for assessing the reasonable expectation of privacy. There are: “(1) the subject matter of the alleged search; (2) the claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.” (Spencer, at para 18) On the issue of the subject matter of the search, the Court found that the energy consumption data included “both the raw data and the inferences that can be drawn from that data about the activity in the residence.” (at para 75) Because the data and inferences were about a person’s home, the Court found that this factor favoured a finding of a reasonable expectation of privacy. With respect to the interest of the appellants in the data, the Court found that they had no exclusive rights to these data – the energy company had a right to use the data for a variety of internal purposes. The Court described these data as being “subject to a complicated and interlocking myriad of contractual, legislative and regulatory provisions” (at para 80), which had the effect of significantly qualifying (but not negating) any expectation of privacy. Justice Doherty found that the appellants had a subjective expectation of privacy with respect to any activities carried out in their home, and he also found that this expectation of privacy was objectively reasonable. In this respect, he noted that although there were different documents in place that related to the extent to which Horizon could share data with the police, “one must bear in mind that none are the product of a negotiated bargain between Horizon and its customers.” (at para 84) The field of energy provision is highly regulated, and the court noted that “[t]he provisions in the documents to which the customers are a party, permitting Horizon to disclose data to the police, cannot be viewed as a ‘consent’ by the customer, amounting to a waiver of any s. 8 claim the customer might have in the information.” (at para 84) That being said, the Court also cautioned against taking any of the terms of the documents to mean that there was a reasonable expectation of privacy. Justice Doherty noted that “The ultimate question is not the scope of disclosure of personal information contemplated by the terms of the documents, but rather what the community should legitimately expect in terms of personal privacy in the circumstances.” (at para 85) He therefore described the terms of these documents as relevant, but not determinative.

The documents at issue included terms imposed on the utility by the Ontario Energy Board. Under these terms, Horizon is barred from using customer information for purposes other than those for which it was obtained without the customer’s consent. While there is an exception to the consent requirement where the information is “required to be disclosed. . . for law enforcement purposes”, Justice Doherty noted that in this case the police had, at most, requested disclosure – at no point was the information required to be disclosed. He found that the terms of the licence distinguished this case from Gomboc and supported a finding of a reasonable expectation of privacy in the data.

The Court also looked at the Distribution System Code (DSC) which permits disclosure to police of “possible unauthorized energy use”. However, Justice Doherty noted that this term was not defined, and no information was provided in the document as to when it was appropriate to contact police. He found this provision unhelpful in assessing the reasonable expectation of privacy. The Court found the Conditions of Service to be similarly unhelpful. By contrast, the privacy policy provided that the company would protect its customers’ personal information, and explicitly set out the circumstances in which it might disclose information to third parties. One of these was a provision for disclosure “to personas as permitted or required by Applicable Law”. Those applicable laws included the provincial Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) Justice Doherty looked to the Supreme Court of Canada’s interpretation of PIPEDA in Spencer. He found that the exception in PIPEDA that permitted disclosure of information to law enforcement could only occur with “lawful authority” and that “[t]he informal information-sharing arrangement between Horizon and the police described in the evidence is inconsistent with both the terms of Horizon’s licence and the disclosure provisions in PIPEDA.” (at para 104) He also found that it did not amount to “lawful authority” for a request for information.

The respondents argued that s. 32(g) of MFIPPA provided a basis for disclosure. This provision permits disclosures to law enforcement agencies without referencing any need for “lawful authority”. However, Justice Doherty noted that, like PIPEDA, MFIPPA has as its primary goal the protection of personal information. He stated: “That purpose cannot be entirely negated by an overly broad and literal reading of the provisions that create exceptions to the confidentiality requirement.” (at para 106) He noted that while s. 32(g) provides an entity with discretion to release information in appropriate circumstances, the exercise of this discretion requires “an independent and informed judgment” (at para 107) in relation to a specific request for information. The provision could not support the kind of informal, ongoing data-sharing relationship that existed between Horizon and the police. Similarly, the court found that the disclosure could not be justified under the exception in s. 7(3)(d)(i) of PIPEDA that allowed a company to disclose information where it had “reasonable grounds to believe that the information relates to . . . a contravention of the laws of Canada”. While Justice Doherty conceded that such disclosures might be possible, in the circumstances, Horizon “did not make any independent decision to disclose information based on its conclusion that reasonable grounds existed to believe that the appellants were engaged in criminal activity.” (at para 110) It simply passed along data that it thought might be of interest to the police.

Although the Court of Appeal concluded that there was a reasonable expectation of privacy in the energy consumption data, and that the search was unreasonable, it ultimately found that the admission of the evidence would not bring the administration of justice into disrepute. As a result, the convictions were upheld. The court cited, in support of its conclusion that the trial judge had reached his decision prior to the Supreme Court of Canada’s decision in Spencer, and that the error in the judge’s approach was only evident after reading Spencer.

 

Teresa Scassa

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