Warrantless searches

R. v. Gomboc, 2010 SCC 55 released this morning is an important decision regarding warrantless searches. It allows a warrantless collection of electric usage.

Generally, before reaching the question of whether a search is reasonable within the meaning of the Charter, the accused must first establish that a reasonable expectation of privacy existed to trigger the protection of s. 8.

Determining the expectation of privacy requires examination of whether disclosure involved biographical core data, revealing intimate and private information for which individuals rightly expect constitutional privacy protection. The appropriate question is whether the information is the sort that society accepts should remain out of the state's hands because of what it reveals about the person involved, the reasons why it was collected, and the circumstances in which it was intended to be used.

The Court writes:

The Informational Privacy Interest

[27] The Charter guarantee of informational privacy protects the right to prevent certain personal information from falling into the hands of the state. The scope of constitutional protection will vary depending upon the nature of the information and the purpose for which it is made available (R. v. Colarusso, [1994] 1 S.C.R. 20, at p. 53; Patrick, para. 38).

[28] In Plant, Sopinka J. rejected a categorical approach to informational privacy, protecting only information that is "personal and confidential" (p. 293). He framed the constitutional protection given to informational privacy in the following purposive terms:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [p. 293]

Sopinka J. also outlined factors that could form the basis for a reasonable expectation of privacy which included: "the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated" (p. 293).

[29] The facts underlying Plant are similar to those in the case at bar. The police had consulted electricity use records of a home as part of a marijuana grow operation investigation. Information about relative electricity use in the neighbourhood was included alongside visual observations about the home in an affidavit to obtain a search warrant. The accused's argument that the electricity consumption records were obtained through a warrantless search that violated s. 8 of the Charter was rejected by this Court for two reasons. The first involved the nature of the information, about which Sopinka J. said:

The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant's life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence. [p. 293]

A further reason for rejecting the reasonable expectation of privacy claim took into account the relationship between the accused and the utility. That relationship did not involve confidence or a contractual obligation of confidentiality. Instead, the utility's policy was to permit police access to its electronic records via a password-protected computer. Electricity consumption records of a particular address were available to the public at large (p. 294).