R v Gomboc: A Powerful Debate on DRA Evidence and Section 8

Last September, I offered my thoughts on the Alberta Court of Appeal’s (“ABCA”) decision in R v Gomboc, 2009 ABCA 276, a case that dealt with the right to be free from unreasonable search and seizure under section 8 of the Charter. At the time, the case had already been granted leave to appeal to the Supreme Court of Canada, and arguments in the case had been heard at the Court in May.

Late last year, the Supreme Court of Canada (“SCC”) delivered its judgment in R v Gomboc, 2010 SCC 55 [Gomboc], in what was certainly one of the most exciting and polemical judgments to come out of the Court in 2010. (In fact, the Court’s decision in Gomboc has received two nominations in this year’s Golden Gavel awards, the results of which will be released later this year.)

The Gomboc decision is fascinating for two primary reasons. First, on a pragmatic level, it is another example of the highest court being asked to weigh in on the constitutionality of an investigative tool utilized by police, which requires a precarious balancing act between the public’s dual (and sometimes dueling!) interest in privacy and an efficient police investigation.

As I noted in my survey of the appellate level decision, the case also raises some interesting questions about the role third parties can play in a police investigation. Although the Court’s decision offers some interesting developments on that point, I will be canvassing that aspect of this case in a separate post, slated for February 15. While the role of third parties was arguably the most compelling issue raised by the majority at the ABCA, the SCC’s application of section 8 jurisprudence is also quite noteworthy.

Facts & History

The facts of this case were canvassed in greater detail in my first post on this case. Briefly: the accused, Daniel James Gomboc, was convicted at trial of producing marijuana and possession for the purpose of trafficking. At the appellate court, the accused appealed and successfully argued that the police investigation had violated his section 8 Charter rights, because of the use of a digital recording ammeter (DRA).

Based on visual observations of the accused’s property, officers requested the local electrical service provider to install a DRA, which creates a record of electrical power consumption. The accused’s pattern of electricity usage fell within the ambit of a marijuana grow-op, and was later used to obtain a search warrant of the premises. The Crown relied on the Code of Conduct Regulation [the Regulation], made pursuant to the province’s Electric Utilities Act, SA 2003, c E-5.1, as support for their position that the accused’s section 8 rights were not violated. Under section 10(3)(f) of the Regulation, “customer information” can be collected by the utility company and disclosed to police investigating an offence “without the customer’s consent.”

For the majority at the appellate court, Martin J.A. applied the test from R v Tessling, [2004] 3 SCR 432 [Tessling], outlined below, and found that Gomboc did have a subjective expectation of privacy, and distinguished the DRA evidence from the FLIR technology in Tessling, finding it to be “more intrusive and revealing.” The Court of Appeal concluded that Gomboc’s section 8 right against unreasonable search and seizure had been violated by the use of the DRA-obtained evidence. (Read more about the appellate decision here.)

The Court’s Decision: Three Reasons, No Clear Consensus

At first blush, the test for a section 8 Charter claim seems fairly straightforward. The analysis consists of two steps. First, did the state action in question constitute a search? And second, was the search reasonable? In order to establish a “search,” it must be found that the conduct interfered with the individual’s reasonable expectation of privacy.

The test for a reasonable expectation of privacy, which was most recently considered in R v Nolet, 2010 SCC 24, places the onus of proof on the claimant to show that he or she has a subjective expectation of privacy in the subject matter of the search, and that the subjective expectation is objectively reasonable.

The “objective reasonableness” analysis, in turn, must take the “totality of the circumstances” into account, as per Tessling, and various other precedents on this point.

The “totality of the circumstances” test can often result in a highly contextual and fact-specific analysis, and jurists often reach very different reasons based on their weighing and balancing of these factors. In my consideration of the appellate level decision, I concluded that “the Supreme Court’s decision may hinge on how the DRA evidence – and the information it discloses – is characterized by the Court.” Although I correctly predicted that result, Gomboc is interesting because of how the facts are characterized by different factions of the Court.

On one side of the issue, we have Deschamps J., with Charron, Rothstein and Cromwell JJ. concurring. Deschamps J. easily concluded that no reasonable expectation of privacy in the information at issue arises in this case, and section 8 of the Charter was thus not engaged. However, Deschamps J. made it clear that her conclusion was based on the totality of the circumstances, and not solely on the allowances made under the Code of Conduct Regulation:

The nature and quality of the information in this case, its remoteness from the “biographical core of personal information which individuals in a free and democratic society would with to maintain and control from dissemination to the state,” and the legislative scheme permitting disclosure of customer information to authorities investigating an offence combine to weigh against finding a reasonable expectation of privacy in this case.

The majority noted that a critical factual consideration, “on which much of the disagreement in this case turns,” was the degree to which the technology employed revealed private information. Deschamps J. held that there was “absolutely no reliable inference” that could be made about the occupants or their activities, apart from the existence of a marijuana grow operation. In fact, Deschamps J. was of the opinion that DRA data perfectly punctuates an investigation, and “protects a suspect against more intrusive techniques.”

Deschamps J. noted that Gomboc did exhibit a subjective expectation of privacy. However, two key factors vitiated against the reasonableness of that privacy expectation: the nature and the quality of the information disclosed by the DRA, and the regulatory scheme that permitted disclosure of customer information to a police officer. Deschamps J. made particular note of the fact that Gomboc did not request that his customer information be kept confidential, despite the regulations that were in place. The reasoning also finds that the information disclosed wasn’t any more revealing than the information that was at issue in Tessling or R v Plant, [1993] 3 SCR 281 [Plant].

The reasoning of Deschamps J. also departs from the approach taken by the Court of Appeal and the minority at the Supreme Court on the consideration of the territorial privacy issues raised in Gomboc. Although Deschamps J. acknowledged that the target of the search was the respondent’s home, “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.”

Deschamps J. thus concludes that the appeal should be allowed, and the conviction restored.

In separate reasons, Abella J. (with Binnie and LeBel JJ. concurring) concurs with the result reached by Deschamps J. However, Abella J.’s reasons place a greater emphasis on the Regulation, and the impact the regulation’s existence had on whether the expectation of privacy was objectively reasonable. Early in her reasons, Abella J. notes that “given that the information emanated from his home, the most protected of privacy spheres, [Gomboc] may well have succeeded but for the existence of the Regulation, which make any expectation of privacy objectively reasonable.”

Abella J.’s reasons also depart from Deschamps J.’s conclusions regarding the revelatory nature of the DRA evidence. The reasons distinguish the evidence in the case at bar from the billing records at issue in Plant, noting that DRA evidence reveals more personal information than billing records. Abella J. concludes:

Given the overriding significance of protecting the privacy interests in one’s home, the concerns regarding the warrantless use of DRAs seems to me to be well founded. And this case may well have been differently decided but for a crucial factor: the relationship between Mr. Gomboc and his utilities provider is governed by a regulatory scheme, which, in my view, effectively erodes the objective reasonableness of any expectation of privacy in the DRA data.

McLachlin CJC and Fish J. deliver the dissent in Gomboc, and the opening words of their dissent make it clear that there is a strong difference of opinion between the majority and the minority. The Chief Justice and Fish J. note that the Crown relies on easily distinguishable precedents to take an “incremental but ominous step toward the erosion of the right to privacy.”

On the issue of the intrusiveness of the DRA, the dissenting judges concur with Abella J., and find that the warrantless use of DRAs raises some serious concerns. However, in considering the “totality of the circumstances,” they disagree with Abella J. on the effect of the Regulation.

The judges note that the results of a search need not produce conclusive determinations about what is happening in the accused’s home in order to be considered intrusive. The dissenting judgment is also quick to distinguish between this case and Plant and Tessling. Additionally, McLachlin CJC and Fish J. note that, “the constitutionality of a search does not hinge on whether there are even more intrusive search methods the police could have improperly used.”

McLachlin CJC and Fish J. also go on to consider the argument that Gomboc could have sought an exemption from the provision in the Regulation that allowed disclosure of his consumption information. The justices aren’t buying that argument:

This is not a situation, like Branch or Nolet, where a reasonable person engaged in the highly regulated fields of securities trading or trucking would be expected to be aware of the relevant legislation. The average consumer signing up for electricity cannot be expected to be aware of the details of a complex regulatory scheme – the vast majority of which applies to the companies providing services, and not the consumers themselves – which permits the utility company to pass information on electricity usage to the police, especially when a presumption of awareness operates to, in effect, narrow the consumer’s constitutional rights.

The minority also questioned whether the provisions in the Regulation could be interpreted to allow for the installation of new technology to obtain information “the company neither already had nor intended to obtain about what was happening inside their house.”

Upon concluding that there was a reasonable expectation of privacy, the two judges finally considered whether the search was reasonable, and concluded that it wasn’t. In the result, they would have affirmed the judgment of the Court of Appeal.

She Said, She Said, She Said – The Frustrating Nature of Section 8 Judgments

It is truly impossible to say which faction of judges in Gomboc was right or wrong. I will say that I find myself agreeing McLachlin CJC and Fish J.’s characterization of the Regulation. Most Canadians—even the ones with a legal education—probably don’t spend a lot of time pouring over regulations that apply to their private information. To think that a piece of regulation could be used to conscript a third party service provider seems troublesome. I will conduct a longer analysis on that point in my next post on Gomboc.

I do have to confess that, as a student of the law, I am fascinated by the continuing application of section 8 jurisprudence to new investigative modes and technologies. However, I can also see the practical frustrations that arise out of this line of jurisprudence.

The “totality of the circumstances” test seems appropriate, given the often fact-specific and contextual nature of police investigations. Quite frankly, this area of the law does not lend itself well to bright line tests or rigid standards. However, this also means that these issues are often unpredictable, and judicial results can often go either way.

Gomboc offers a perfect example of this point: four judges concluded that the DRA technology was not intrusive. Five concluded that DRA evidence did give rise to a reasonable expectation of privacy, but the appeal was inevitably allowed based on Abella J.’s consideration of the Regulation. In other words – and Abella J. said as much – it is quite possible that, given the right constellation of facts, DRA evidence could be found to be an unreasonable search within the meaning of section 8 of the Charter. There is no clear consensus on the efficacy or constitutionality of DRA evidence, generally.

It is quite easy to see why this would be frustrating on a practical level, from both sides of the issue. Accuseds who are convicted on the basis of search warrants based on DRA evidence would have to litigate the issue all the way to the Court in order to get a firm answer. Also, investigators who rely on DRA evidence to confirm their suspicions regarding marijuana grow operations are vulnerable to a constitutional challenge.

Perhaps what we need is further guidance on how different pieces of evidence and context should be weighed when considering the “totality of the circumstances.” As we can see in Gomboc, all three judgments considered the “totality of the circumstances,” but gave different weight to reach different results. It is unlikely that further clarification will make for more predictable results to section 8 challenges. But as the Gomboc judgment demonstrates, there may be different ideas on how the law on unreasonable search and seizure should be carried forward at the Supreme Court of Canada.