Gomboc — Power Usage, Police Powers of Search, and the Role of Power Companies

In May, the Supreme Court of Canada heard arguments in the case of R. v. Gomboc, an appeal that came to the Court by way of the Alberta Court of Appeal (2009 ABCA 276). The accused, Daniel James Gomboc, was convicted at trial of producing marijuana and possession of marijuana for the purpose of trafficking. However, at the appellate level, counsel for the accused successfully argued that the police investigation had violated Gomboc’s section 8 Charter rights through their utilization of a digital recording ammeter (DRA).

In recent years, the Court has been asked to determine the constitutionality of various investigative tools and tactics used by police. In R. v. Tessling, [2004] 3 S.C.R. 432 for example, the court ruled on a use of a Forward Looking Infra-Red (FLIR) camera, which provided the external heat signature of a dwelling house. More recently, R. v. A.M., [2008] 1 S.C.R. 569 and R. v. Kang-Brown, [2008] 1 S.C.R. 456 brought the issue of sniffer dog searches before the Court.

In Gomboc, the Court has been presented with the opportunity to consider the use of another technology without prior judicial authorization. Based on preliminary visual observations, police believed that the accused was operating a marijuana “grow-op” on his property. Officers requested local electrical service providers to install a DRA, and the police used the device to create a record of electrical power consumption that was later used to obtain a search warrant.

In addition to the use of technology issue in question, the Gomboc case also puts an interesting question before the Court: what are the limitations on the access provided to police by third-party commercial service providers?

Background and Facts

During the course of an unrelated investigation in 2004, Calgary policy took note of Gomboc’s home. Unlike houses of the same size in his neighbourhood, there was no snow on his roof, and police also noticed that there was condensation on the windows. Following these observations, officers from the Calgary Police Drug Unit began an investigation of the accused’s home, and made similar observations that led them to suspect that the accused was growing marijuana in his home.

Enmax, the local utilities company, received a request from the officers to install a DRA to monitor the consumption at Gomboc’s property, and Enmax complied with the request. The investigators received a five-day graph printout of the consumption patterns at Gomboc’s home, and the usage was deemed to be consistent with a marijuana grow-op. Police used the DRA evidence, along with police observations, to obtain a search warrant.

At trial, there were some questions raised about whether Enmax had connected the DRA device to the correct power line. However, the trial judge concluded that the DRA had been installed correctly, and the issue was not considered at great length on appeal.

On appeal, the main issue before the court was whether the use of the DRA without prior judicial authorization was in breach of section 8 of the Charter. A majority – Martin J.A., with Berger J.A. concurring – allowed the appeal and ordered a new trial. However, O’Brien J.A. dissented, finding that the trial judge was correct in deeming the evidence to be admissible.

The ABCs of DRAs

At first blush, the facts in Gomboc seem identical to those in R. v. Plant, [1993] 3 S.C.R. 281, where an officer used monthly electrical consumption records maintained by a utility company as part of an investigation into a particular residence. In Plant, a majority of the Court concluded that the use of computer records of electrical consumption was not unreasonable.

The facts of Gomboc, however, are distinguishable from those in Plant. At the appellate level, counsel for the appellant argued that the police engaged a third party – the utility company – and the DRA was installed particularly for that purpose. The crux of the argument was that the effective involvement of a third party in the investigation “adds a dimension to the case not contemplated by the court in Plant.” In other words, the evidence at issue was not pre-existing information that had been gathered by the company in the normal course of business, but rather had been obtained with the particular purpose of aiding a police investigation.

Moreover, O’Brien J.A. noted in dissent that the DRA “discloses patterns and cycles of electricity usage, and measures the electrical energy supplied to a premises during a specific period of time.” Thus, there is a clear distinction between the simple monthly billing records involved in Plant and the detailed and specific readings provided by the DRA in Gomboc.

The split decision at the appellate level provides two strong positions on whether the accused had a reasonable expectation of privacy, and whether the police conduct in question violated that expectation. In applying the “totality of the circumstances” test as set out in R. v. Patrick, [2009] 1 S.C.R. 579 and Tessling, the jurists came to two very different conclusions on the facts of the case.

Writing for the majority, Martin J.A. concluded that a homeowner does have a subjective expectation of privacy regarding information about activities that take place in their home. In applying the Tessling test, Martin J.A. also distinguished the DRA from the FLIR technology in Tessling, concluding that the DRA evidence is ”more intrusive and revealing.” He noted a difference in the level of personal disclosure between the devices, stating that “DRA information must, as a matter of common sense, also disclose biographical or private information; for example, the approximate number of occupants, when they are present in the home, and when they are awake or asleep.”

On the other hand, O’Brien J.A.’s dissent found a closer parallel to the computerized billing records used in Plant, and he concluded that the evidence retrieved from the DRA does not reveal more about the lifestyles of the residents than a monthly bill would.

Additionally, in applying the Tessling precedent, O’Brien J.A. found there to be very little to distinguish between “the patterns of heat distribution generated from within and emanating from their residences as externally measured, and the patterns of electrical utility usage within the residences as externally measured.”

Although both jurists pulled from the same Supreme Court jurisprudence and applied the “totality of the circumstances” test to the facts of the case, they arrived at two very different and compelling conclusions on the use of DRA evidence.

Party’s Over? The Question of Third Party Commercial Actors

Although Gomboc revolves around the constitutionality of DRA evidence, one of the most interesting facets of the case is Enmax’s role in procuring the damning evidence.

Out of necessity, homeowners must grant utility companies greater access to their premises than they would afford the general public. This is also true for a range of other services and products – an Internet Service Provider (ISP), for instance, may have access to personal and identifying information that would attract a reasonable expectation of privacy.

In addressing whether a provincially-enacted regulation could be used by police to obtain DRA records from a utility company without a warrant, Martin J.A. noted that such a regulation would allow police to “recruit any agency with limited access to a home to exploit the access to gather information for them.” Using the example of a mail deliverer who could look in through a home’s windows or a cable television provider who could disclose the viewing habits of a subscriber, he concluded that “such unauthorized state surveillance of its citizens … would render the protection of a reasonable expectation of privacy over one’s home illusory.”

The fact that a commercial service provider used its access to help police obtain a crucial piece of evidence adds a layer of complexity to the Gomboc case. The Canadian Civil Liberties Association (CCLA), which had intervener status in the recent Supreme Court hearings, has argued that Charter scrutiny applies when police exploit service relationships during an investigation. In its factum (PDF) for the Court proceedings, the CCLA argues that “an informed observer would conclude that exploiting third party access in such fashion is antithetical to any reasonable conception of privacy in a modern democracy.”

Of course, any decision from the Court on the third party question may have emanations beyond utility companies, as information from third parties can often provide the foundation for a police investigation. For example, in R. v. Chehil, 2009 NSCA 111 (PDF), the Nova Scotia Court of Appeal was asked to consider whether the accused’s section 8 rights were violated after a drug enforcement team at the Halifax Airport was given permission to view the electronic passenger list of a flight with the aim of identifying potential drug couriers.

The Gomboc and Chehil cases are unrelated, but they both offer clear examples of commercial actors playing the role of unauthorized state agents. The role is an uneasy one, and the Court’s decision in Gomboc may offer some insight on how to best balance these concerns against an individual’s privacy rights.

Looking Forward, Looking Back

As is evident from the split decision at the appellate level, the Supreme Court’s decision may hinge on how the DRA evidence – and the information it discloses – is characterized by the Court. When held up against past jurisprudence, there is no clear answer as to where the DRA technology may fall on the spectrum. From one perspective, looking at cases such as Plant and Tessling, it can be argued that the differences are negligible when placed in context.

However, the pendulum could swing just as easily in the other direction, and DRA evidence that is obtained without a warrant may be deemed too great an intrusion to survive the section 8 challenge. The Court is once again left with the task of balancing the public’s interest and the goal of effective law enforcement while technological advances make this an increasingly trying task.

The Court may also use this opportunity to further elucidate on the application of the Tessling test. As noted earlier, the jurists at the appellate level used the Tessling test, but reached divergent conclusions. Perhaps this is to be expected in view of the subjective ambiguities of the test, but the Court could use Gomboc to elaborate on the finer points of the test.

In addition, it will be interesting to see if the Court addresses the much broader question of third-party service providers, and the use of their increased access to an individual’s private information during a police investigation. Although the outcome in this case is staked on the Court’s determination on whether DRA evidence is unconstitutional, any word on third parties may emanate through many aspects of criminal investigations.