



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Orlandis-Habsburgo, 2017 ONCA 649

DATE: 20170810

DOCKET: C59716

Doherty, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maria Del Carmen Orlandis-Habsburgo and Edwin
    Robert LeFrancois

Appellants

Paul Lewin and Jack Lloyd, for the appellants

Bradley Reitz, for the respondent

Dan Guttman and Molly Flanagan, for the intervener,
    Attorney General of Ontario

Heard:  November 7, 2016

On appeal from the convictions entered on May 22, 2014 by
    Justice Harrison S. Arrell of the Superior Court of Justice, reported at 2014
    ONSC 3096.

Doherty J.A.:


I



overview

[1]

The appellants rented a home in a residential area in Hamilton, Ontario.
    They operated a commercial-sized marihuana 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 marihuana
    grow-op.
[1]
Horizon forwarded information pertaining to the electricity use in the
    residence to the police.

[2]

The police began an investigation that included observations of the
    residence.  The police also requested and obtained additional information from
    Horizon about the ongoing electricity use at the residence and electricity use by
    comparator customers.  Ultimately, the police applied for a search warrant for
    the residence.  Among other things, the police relied on the energy consumption
    information provided to them by Horizon.  The Justice of the Peace issued the
    warrant.

[3]

The police executed the warrant and found many marihuana plants and
    packaged marihuana in the basement.  The appellants were charged with
    production of, and possession for the purposes of trafficking in, marihuana and
    possession of the proceeds of crime.

[4]

The trial proceeded before a judge, sitting without a jury.  He
    convicted.  The appellants appeal conviction only.

[5]

At trial, the defence submitted that the police violated the appellants
    rights under s. 8 of the
Charter
when they acquired energy consumption
    data from Horizon without either the appellants consent or prior judicial
    authorization, and used that information to further a criminal investigation that
    eventually led to the seizure of the marihuana.  The defence argued that without
    the information from Horizon there would have been no criminal investigation,
    no application for a search warrant and no seizure.  On this analysis, the police
    use of the appellants energy consumption records to further their
    investigation constituted a breach of s. 8 which was sufficiently connected to
    the discovery of the marihuana to warrant the exclusion of the marihuana under
    s. 24(2) of the
Charter
.

[6]

Alternatively, the defence submitted that without the information unlawfully
    obtained by the police from Horizon, the affidavit relied on by the police to
    obtain the search warrant did not contain sufficient grounds to justify the
    issuing of the warrant.  Consequently, claimed the defence, the search should
    be treated as a warrantless search and presumptively unconstitutional.  The
    defence further argued that a warrantless search of the residence constituted a
    serious breach of s. 8, warranting exclusion under s. 24(2) of the marihuana
    seized during the search.

[7]

Apart from the s. 8 challenge based on Horizons sharing of the data
    with the police, the defence also challenged the constitutionality of various federal
    and provincial privacy laws and regulations governing Horizon.  The defence
    argued that these provisions contravened s. 8 of the
Charter
and were
    of no force and effect.  To the extent that Horizon, a government actor, relied
    on these provisions in providing the energy consumption records to the police,
    Horizons conduct was unlawful and constituted a breach of s. 8, warranting the
    exclusion of the marihuana from evidence under s. 24(2).

[8]

The trial judge rejected the s. 8 claim.  After extensive reference to
    the safety hazards posed by grow-ops, the relevant privacy legislation, the
    contractual relationship between Horizon and its customers, and the controlling
    jurisprudence from the Supreme Court of Canada, in particular
R. v. Gomboc
,
    2010 SCC 55, [2010] 3 S.C.R. 211, the trial judge concluded, at paras. 48-49:

[48]  Under all the circumstances of this case, I conclude that
    since the consumption data released by Horizon to the police did not go to the
    biographical core of personal, intimate details of the lifestyle and personal
    choices of the Applicants, they could not reasonably have had an objective
    expectation of privacy.  As well, I conclude that a person fully informed of
    the provisions of the various privacy legislation at issue, as well as
    Horizons Conditions of Service, and being informed of the facts of the case at
    bar, would agree it was reasonable for Horizon to release the data to the
    police, as was done here.

[49]  I also conclude that the privacy legislation and the
    [Ontario Energy Boards] Distribution System Code are not inconsistent with the
Charter
and that motion of the applicant[s] is dismissed.


II



[9]

Horizon is wholly owned by the cities of Hamilton and St. Catharines.  As
    the authorized electricity distributor in those cities, it operates in a highly
    regulated energy market.  Like all electricity distributors in Ontario, Horizon
    is obligated to provide electricity to all potential customers, save those who
    expressly indicate they do not wish to be connected to the grid:
Electricity
    Act, 1998
, S.O. 1998, c. 15, Sch. A, s. 29(1).  Horizon is also subject to
    regulation by the Ontario Energy Board which, among other things, sets minimum
    conditions that Horizon must meet in carrying out its obligations to distribute
    electricity:
Ontario Energy Board Act, 1998
, S.O. 1998, c. 15, Sch.
    B., s. 70.1(1).  Those minimum requirements are reflected in Horizons Conditions
    of Service which describe the terms and conditions of the relationship between
    Horizon and its customer.  That relationship is also subject to Horizons written
    Privacy Policy, and the terms of Horizons Electricity Distribution Licence
    which, among other things, speaks to disclosure of consumer information.  Horizons
    treatment of its customers information also falls under the purview of federal
    and provincial privacy legislation aimed at regulating the collection, use, and
    disclosure of customers personal information.

[10]

Horizon regularly monitored energy use by its customers for various
    reasons, including theft and safety concerns.  Horizon developed software that
    produced a daily list of accounts that, according to parameters fixed by
    Horizon, showed either high energy consumption or low energy consumption. 
    Horizon employees examined the particulars of these accounts for features that
    might indicate unauthorized or unsafe use of electricity.

[11]

As of 2012, Horizon collected energy consumption data in two forms. 
    Horizon kept records showing total energy consumption by a customer for a billing
    period (bi-monthly).  In addition, after the advent of smart meter technology,
    Horizons energy consumption data showed hourly energy consumption by a customer.

[12]

Dennis Franco, a revenue protection specialist at Horizon, regularly
    reviewed the daily lists of high and low energy users.  The appellants
    residence appeared on the high consumption list in late March 2012.  When Mr.
    Franco reviewed the energy consumption records for the residence, he observed
    higher than expected total consumption and a cyclical pattern of high and low consumption
    periods during each 24-hour period.  Based on his training and experience, Mr.
    Franco believed that the amount and pattern of energy usage at the appellants
    residence strongly indicated that someone was operating a marihuana grow-op in
    the residence.

[13]

Following his usual practice when he had reason to believe that a
    marihuana grow-op was being operated by a customer, Mr. Franco contacted the appropriate
    police force.  His email of March 28, 2012 to the Hamilton police read in part:

This is a very interesting one!!!

You may want to put on your radar.

Let me know if you require further information.

[14]

Mr. Franco attached records detailing the energy consumption at the appellants
    residence.  Those records showed total consumption on a bi-monthly basis from March
    2009 to March 2012, and hourly energy consumption for the period from March 1
    to March 27, 2012.

[15]

Officer Shane Coveyduck, a member of the drug unit of the Hamilton
    Police, reviewed Mr. Francos email.  He and others in the drug unit regularly
    received communications from Mr. Franco, containing energy consumption records
    for various residences.  After reviewing the documentation provided by Mr.
    Franco, Officer Coveyduck believed, based on his experience, that the amount and
    pattern of energy consumption at the appellants residence was consistent with
    the existence of a marihuana grow-op in the residence.

[16]

Officer Coveyduck conducted further investigations, including
    surveillance of the residence.  Those observations supported his suspicions. 
    On April 23, 2012, he wrote to Mr. Franco requesting hourly consumption data
    for the appellants residence after March 27, 2012.  He also requested records
    for certain other properties, intending to compare the energy use in those properties
    with the appellants energy use.  Horizon provided all of the requested
    information.

[17]

On April 26, 2012, relying on the information provided by Horizon, and
    other information gathered during the police investigation, the Hamilton police
    applied for a search warrant.  A telewarrant was issued and the police executed
    that warrant at about 8:00 p.m. at the appellants residence on April 26.  The
    police found the marihuana grow-op in the basement and arrested the appellants. 
    They also found almost $23,000 in cash.

[18]

Officer Coveyduck and Mr. Franco testified that Horizon regularly provided
    energy consumption data to the police.  Sometimes the police requested the
    information, and sometimes Horizon volunteered the information.  Often, after
    the police received initial information and commenced an investigation, they
    would request further information relating either to energy consumption in the
    suspect residence, or energy consumption in other residences, which the police
    intended to compare to the electricity use in the suspect residence.  Horizon inevitably
    provided this information upon request.

[19]

Mr. Franco testified that, to his knowledge, Horizon had never refused a
    police request for energy consumption information until shortly before he
    testified in these proceedings.  Mr. Franco indicated that Horizons legal
    department had decided that pending the outcome of this case, Horizon should
    require the police to obtain a production order before turning over records
    pertaining to customers electricity consumption.


III



[20]

The appeal can be divided into two parts.  I will first consider whether
    Horizons sharing and the police use of the appellants energy consumption
    records violated s. 8.  I will next consider whether any of the challenged
    legislation violates s. 8.

did the police receipt and use of the energy consumption data violate
    the appellants s. 8 rights?

A.

Does it matter that Horizon initiated the contact with the police?

[21]

The Crown submits that Horizon acted on its own initiative when it
    supplied the energy consumption data to the police.  Counsel for the Crown argues
    that the police conduct cannot amount to a search or seizure when the police
    simply receive information brought to them voluntarily by an independent party.

[22]

Crown counsel relies on
Gomboc
.  In
Gomboc
, the energy
    provider, at the request of the police, installed a digital recording ammeter (DRA)
    on the power line running into the targeted residence.  The device measured
    energy consumption and produced a graph displaying the pattern of energy use in
    the residence over a given time period.  The police subsequently used that
    information in obtaining a search warrant for the residence.

[23]

In the course of considering whether the police conduct contravened s. 8
    of the
Charter
, Deschamps J., for four members of the majority, said,
    at para. 41:

It is also beyond dispute that if Enmax [the energy supplier] installed
    the DRA on its own initiative and discovered the same suggestive pattern of
    electricity use, it could have turned this information over to police.

[24]

In dissent, McLachlin C.J. and Fish J., in finding a breach of s. 8,
    stressed the active role played by the police in the creation of the energy
    consumption information eventually used to obtain the warrant.  They described the
    police as co-opting the energy provider by installing the DRA, and contrasted
    those facts to a situation involving the voluntary cooperation of a private
    actor with the police:
Gomboc
, at paras. 101-104.

[25]

On my reading of
Gomboc
, six of the nine judges accept the
    distinction urged by the Crown.  The other three, speaking through Abella J.,
    make no reference to the distinction.

[26]

The recent judgment in
R. v. Spencer
, 2014 SCC 43, [2014] 2 S.C.R.
    212, at para. 64, also suggests that for the purposes of s. 8 of the
Charter
there is a distinction between information provided to the police on the
    initiative of a service provider, and information provided by the service
    provider at the request of the police.

[27]

Finally,
R. v. Duarte
, [1990] 1 S.C.R. 30, at pp. 43-44, one of
    the seminal privacy judgments from the Supreme Court of Canada, supports the
    distinction urged by the Crown.  In
Duarte
, the court distinguished
    between the police electronically intercepting private communications, even
    with one of the participants consent  a potential s. 8 violation  and one of
    the participants voluntarily disclosing to the police the contents of the same confidential
    conversation  not a potential s. 8 violation.

[28]

The appellants argue that it is irrelevant that Horizon volunteered the
    information to the police.  They submit that Horizons conduct, in turning the
    material over to the police, can have no effect on the appellants privacy
    rights in the information revealed by the energy consumption data.

[29]

The appellants rely on
R. v. Dyment
, [1988] 2
    S.C.R. 417.  In
Dyment
, a doctor gave the police a blood sample he
    took for medical purposes from an unconscious patient.  It would appear that
    the doctor volunteered the sample and that it was not requested by the police
    officer.  The majority of the court, for the concurring reasons given by La
    Forest J., held that the officers receipt of the blood sample constituted a
    seizure for the purposes of s. 8.  In his concurring judgment, La Forest J.
    focused on the high level of personal privacy associated with bodily fluids
    such as blood, and the positive obligation on the physician to use the blood only
    for medical purposes and to otherwise maintain the confidentiality of any
    information pertaining to the patient.  He said, at p. 432:

I think the protection of the
Charter
extends to
    prevent a police officer, an agent of the state, from taking a substance as
    intimately personal as a persons blood from a person who holds it subject to a
    duty to respect the dignity and privacy of that person.

[30]

Although
Dyment
presents a very different fact situation, and
    the s. 8 jurisprudence has undergone substantial development since
Dyment
,
    the judgment supports the appellants position that it matters not whether the
    police were merely the passive recipient of information from an independent
    third party:  see also L. Austin, Information Sharing and the Reasonable
    Ambiguities of Section 8 of the Charter (2007) 57 U.T.L.J. 499, at pp. 515-17.

[31]

The appellants also rely on

R.
    v. Cole
, 2012 SCC 53, [2012] 3 S.C.R. 34.  In
Cole
, school
    authorities learned that a teacher was using a school computer to store
    partially nude photographs of a student and turned that information and the
    computer over to the police.  The police examined the computer without obtaining
    a warrant and laid charges based on its contents.  The computer belonged to the
    school, but the teacher was allowed to use the computer for both personal and
    school-related matters.

[32]

The Supreme Court held that the search of the computer without a warrant
    violated the teachers rights under s. 8 of the
Charter
.  However, Fish
    J., for the majority, at para. 73, added this:

The school board was, of course, legally
    entitled to inform the police of its discovery of contraband on the laptop. 
    This would doubtless have permitted the police to obtain a warrant to search
    the computer for the contraband
.
But receipt of the computer
    from the school board did not afford the police warrantless access to the
    personal information contained within it.  This information remained subject,
    at all relevant times, to Mr. Coles reasonable and
subsisting
expectation of privacy.  [Italics in original; underlining added.]

[33]

Cole
suggests that had Horizon concluded from its review of the
    data that its customer was probably using Horizons services for a criminal
    purpose, it could have gone to the police and told them about the suspected
    criminal activity.  The police, armed with that information, could have conducted
    their own investigation, and assuming grounds existed, obtained a search warrant,
    based in part on the information brought to them by Horizon.  Arguably, that is
    effectively what happened here, although Horizon gave the police the actual
    energy consumption data rather than reporting to the police that, based on
    their examination of the data, they believed that the customer was operating a
    marihuana grow-op.
Cole
does not support the appellants position.

[34]

I have considerable difficulty with the submission that s. 8 is engaged if
    the police look at information in which an accused has a legitimate privacy
    interest, even if that information is brought to the police by an independent
    third party acting on its own initiative.  On that approach, s. 8 would be
    engaged if a whistleblower took confidential documents belonging to her
    employer to the police to demonstrate the employers criminal activity.  Must
    the police refuse to look at the documents to avoid violating the employers s.
    8 rights?  As
Duarte
teaches, it is one thing to say that Canadian
    values dictate that the states power to decide when and how it will intrude
    upon personal privacy must be carefully circumscribed, and quite another to say
    that an individuals private information is cloaked in the protection of s. 8 no
    matter how that information comes to the police.

[35]

I need not decide whether the appellants s. 8 rights would be
    implicated if Horizon, acting on its own initiative, volunteered the energy
    consumption data to the police.  The evidence establishes that the police and
    Horizon were acting together.  They had a mutual interest in finding marihuana
    grow operations.   Those operations were not only criminal, but also posed a
    significant fire hazard and a threat to Horizons legitimate interests.  Personnel
    at Horizon and the police developed an informal arrangement whereby Horizon
    would share energy consumption records with the police on an ongoing basis.  Horizon
    or the police might initiate the request to share the information if either had
    reason to believe that a customer of Horizon was operating a marihuana grow-op at
    a particular location.  Often when Horizon provided the initial information,
    the police would request additional data.  Horizon always complied.

[36]

Given the arrangement between Horizon and the police, the s. 8 analysis
    in this case should not depend on whether it was Horizon or the police who
    initiated the contact that led to the police obtaining the appellants energy
    consumption data from Horizon.  I think it is a fair reflection of the
    relationship between Horizon and the police to treat the police investigation in
    this case as beginning when Mr. Franco observed the suspicious pattern of energy
    consumption at the appellants residence and forwarded the data to the police.

B.

The section 8 analysis

[37]

Section 8 of the
Charter
protects a claimants
reasonable
expectations of privacy against
unreasonable
state intrusion:
R. v. Tessling
, 2004
    SCC 67, [2004] 3 S.C.R. 432, at para. 18.  Section 8 stands as a shield
    against unjustified state intrusions on personal privacy:
R. v.
    Kang-Brown
, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 8.  A s. 8 privacy claim
    may relate to the person, a place, information, or any combination of the
    three:
R. v. Ward
, 2012 ONCA 660, 112 O.R. (3d) 321, at para. 60; and
Tessling
, at paras. 22-23.

[38]

A claimant alleging a breach of s. 8 must demonstrate first that the
    impugned state conduct amounted to a search or seizure and, second, that the
    state conduct fell below the reasonableness standard demanded by s. 8:
R.
    v. Nolet
, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 30.  If the claimant
    establishes a warrantless search, the onus rests on the Crown to demonstrate,
    on the balance of probabilities, that the search was reasonable:
R. v.
    Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 32; and
Kang-Brown
,
    at para. 59.

C.

Was there a search or seizure of the energy consumption data?

(a)

Introduction

[39]

When deciding whether state conduct amounts to a search or seizure, the
    focus is not so much on the nature of the state conduct as it is on the impact
    of the state conduct on the privacy interests of the s. 8 claimant.  State
    conduct that, in the totality of the circumstances, infringes a claimants
    reasonable expectation of privacy will be treated as a search or seizure for
    the purposes of s. 8:
Buhay
, at para. 18;
Spencer
, at paras.
    16-17; and
Ward
, at paras. 63-65.

[40]

The reasonable expectation of privacy inquiry is fact-sensitive and
    fact-specific.  Different factors will carry different weight in different
    circumstances.  For example, claims based on a territorial privacy claim will
    engage different factual considerations than claims based on informational
    privacy.  Fact patterns, however, tend to repeat themselves in the
    jurisprudence.  There is now a rich body of case law that assesses privacy
    claims in the context of customer information shared with the police by a third
    party service provider.  That case law is central to the appellants argument
    that they have a reasonable expectation of privacy in the energy consumption
    data:  see
R. v. Plant
, [1993] 3 S.C.R. 281;
Gomboc
;
Ward
;
Spencer
;
R. v. Trapp
,
    2011 SKCA 143, 377 Sask. R. 246; and
R. v. Godbout
, 2014 BCCA 319, 315
    C.C.C. (3d) 90; see also M. MacAulay, Contracts, Legislative Frameworks and
    the Reasonable Expectation of Privacy:  Rethinking Section 8 in the Service
    Provision Context (2015) 20 Can. Crim. L. Rev. 111.

(b)

The nature of the reasonable expectation of privacy inquiry

[41]

Before turning to the case law, a more general observation about the
    nature of the reasonable expectation of privacy inquiry is necessary.  As
    indicated above, the inquiry is factual and the specific circumstances of the
    case are crucial.  However, the court, in determining whether the claimant has
    demonstrated a reasonable expectation of privacy, is not engaged in a factual
    inquiry in the usual sense.  The court must, in examining the relevant facts, make
    a determination that is not purely fact-driven, but is also reflective of fundamental
    societal values.  A finding that a claimant has a reasonable expectation of
    privacy is not only a description of a specific constellation of factual
    considerations, but is also a declaration of societal aspirations and values:
Tessling
,
    at para. 42;
Spencer
, at para. 18;
R. v. Patrick
, 2009 SCC 17,
    [2009] 1 S.C.R. 579, at para. 14;
Ward
, at paras. 60-63, 70-74; R.
    Pomerance, Flirting with Frankenstein: The Battle between Privacy and Our
    Technological Monsters (2016) 20 Can. Crim. L. Rev. 149, at pp. 156-60;
    MacAulay, at pp. 117-18; and H. Stewart, Normative Foundations for Reasonable
    Expectations of Privacy (2011) 54 S.C.L.R. (2d) 335, at pp. 342-43.

[42]

The value Canadian society places on the individuals right to be left
    alone by the state, absent state justification for any intrusion, lies at the
    heart of the normative inquiry required by s. 8.  Personal privacy is crucial,
    both to individual freedom and security and to the maintenance of a dynamic and
    healthy democracy.  If a court holds that an individual has a reasonable
    expectation of privacy in a certain place, thing or information, the court is
    declaring that community values will not accept that the state should be
    allowed to intrude upon individual privacy in the way that it did without first
    establishing compliance with the reasonableness standard in s. 8 of the
Charter
: 
    see
Ward
, at paras. 79-87;
R. v. Pelucco
, 2015 BCCA 370, 327
    C.C.C. (3d) 151, at para. 63; and
R. v. Wong
, [1990] 3 S.C.R. 36, at
    pp. 45-46.  Professor Stewart captures the inquiry well:

Put another way, the ultimate normative question is whether, in
    light of the impact of an investigative technique on privacy interests, it is
    right that the state should be able to use that technique without any legal
    authorization or judicial supervision.  Does our conception of the proper relationship
    between the investigative branches of the state and the individual permit this
    technique without specific legal authorization?

[43]

The normative nature of the reasonable expectation of privacy inquiry
    explains three significant features of that inquiry.  First, the s. 8
    claimants belief or appreciation of the risk that the state could intrude upon
    the claimants privacy in the way that it did is not determinative of the
    inquiry.  Not every risk of state intrusion is acceptable to the community. 
    The question is not whether there was a risk that the state would invade an individuals
    privacy, but whether the community regards that risk as acceptable:
Patrick
,
    at para. 14;
Tessling
, at para. 42; and
Gomboc
, at para. 34.

[44]

A subjective expectation of privacy is an important factor to be taken
    into account when deciding whether in the totality of the circumstances the
    claimant had a reasonable expectation of privacy.  A subjective expectation of
    privacy cannot, however, be a prerequisite to a finding of a reasonable
    expectation of privacy.  Otherwise, the protection afforded to personal privacy
    by s. 8 would shrink in direct correlation to the pervasiveness and notoriety
    of state intrusions upon personal privacy:
Tessling
, at para. 42.

[45]

Second, the reasonable expectation of privacy inquiry must be framed in
    neutral terms.  The community places no value on the ability of drug producers
    and traffickers to use their homes to hide their activities from the police.  To
    frame the inquiry by reference to the criminal activity in issue would all but
    eliminate the right to privacy through the adoption of a system of subsequent
    validation for searches:
Wong
, at pp. 49-50.  Instead, the inquiry
    must be framed in neutral terms, which look to an individuals interest in
    keeping private whatever he or she is doing within the confines of their
    residence:  see
Spencer
, at para. 36.

[46]

Third, the value-laden nature of the expectation of privacy inquiry
    explains why the purpose of the state intrusion is important in assessing
    whether that intrusion violates a reasonable expectation of privacy.  The
    community may accept certain state intrusions for certain purposes.  For
    example, unfettered state access to business-related documents in a regulatory
    context may be seen as entirely consistent with community notions of personal
    privacy.  However, the same state access to the same documents, but for a criminal
    law purpose may be regarded as an unacceptable state intrusion into personal
    privacy:  see
Patrick
, at para. 38;
R. v. Colarusso
, [1994] 1
    S.C.R. 20, at p. 55; and
Ward
, at para. 77.

[47]

I make one last point about the normative nature of the reasonable
    expectation of privacy inquiry.  The societal values furthered by personal
    privacy are central to the inquiry.  However, other values may also have an
    impact on that inquiry.  I am not referring here to state interests such as law
    enforcement.  Those interests are taken into account in the reasonableness
    assessment which follows a determination that a reasonable expectation of
    privacy exists.  Rather, I refer to societal values reflected in the legitimate
    interests of third parties.  These interests will in some circumstances diminish
    or otherwise modify a claimants reasonable expectation of privacy.  For
    example, a young person clearly has a reasonable expectation of privacy insofar
    as a search of his person is concerned.  The nature and scope of that
    expectation must, however, be modified if the search is conducted on school
    property by school authorities.  The reasonable expectation of privacy analysis
    must take into account societal values reflected in the countervailing
    interests that other students and teachers have in maintaining a nurturing, safe
    and orderly environment in the school:  see
R. v. M. (M.R.)
, [1998] 3
    S.C.R. 393, at paras. 31-34;
Gomboc
, per McLachlin C.J. and Fish J.,
    dissent (but not on this point), at para. 109; and
Ward
, at para. 98.
[2]

(c)

The case law

(i)

Are
Plant
and
Gomboc
determinative?

[48]

I come back to the case law.  The Crown relies on
Plant
and
Gomboc
. 
    In both cases, the Supreme Court of Canada held that residents of a home did
    not have a reasonable expectation of privacy in energy consumption data
    provided to the police.  The respondent contends that those two cases, and
    particularly
Gomboc
, cannot be meaningfully distinguished from the
    privacy claim advanced by the appellants.

[49]

In
Plant
, the police obtained records from the energy provider showing
    the total energy consumption at a residence for a six-month period, and similar
    records from other comparator residences.  The court (with the exception of
    McLachlin J., as she then was) concluded, at p. 293, that the data said very
    little about the lifestyle or activities of the occupants.  The uninformative
    nature of the data was one factor pointing away from the occupant having a
    reasonable expectation of privacy in the data obtained by the police.

[50]

Plant
, at p. 293, establishes that not all information which
    can potentially shed any light on activities within a residence is necessarily
    cloaked with a reasonable expectation of privacy:

[I]t 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.

[51]

The court went on to describe, at p. 293, the energy
    consumption data provided to the police as revealing very little about the
    personal lifestyle or private decisions of the occupant of the residence:  see
    also

Tessling
, at
    paras. 62-63.

[52]

Sopinka J., for the majority in

Plant
, also found the nature of the relationship
    between the energy supplier and the customer/accused did not support the s. 8
    claim.  He described that relationship as neither personal nor confidential. 
    In fact, the energy consumption data was available to members of the public at
    large on the energy providers website:

Plant
,
    at pp. 294-95.  The majority concluded, relying heavily on both the nature of
    the information and the relationship between the customer and the energy supplier,
    that there was no reasonable expectation of privacy in the energy consumption
    data:

Plant
, at p.
    296.

[53]

In
Gomboc
, decided 17 years after

Plant
, the police, with the cooperation of the
    energy provider, installed a device which produced a graph showing hourly
    consumption of energy and patterns of energy consumption.  The pattern revealed
    by the energy use in the accuseds residence was consistent with the pattern
    strongly associated with a marihuana grow-op.  The police obtained a warrant
    and found the grow-op.

[54]

Seven of the nine judges in

Gomboc

held
    that the occupants did not have a reasonable expectation of privacy in the energy
    consumption data collected by the police.  The Crown argues that the data in

Gomboc

is indistinguishable from the data provided
    to the police in this case and that
Gomboc

controls the outcome of the s. 8 claim advanced by the
    appellants.


[55]

The appellants read

Gomboc

differently.  They submit that five judges
    in

Gomboc

support the appellants argument that
    the nature of the information in issue attracts a reasonable expectation of privacy. 
    The appellants also submit that the relationship between the appellants and
    Horizon is factually distinguishable from the relationship between the accused
    and the energy provider in

Gomboc
.

[56]

Gomboc
figured prominently in the trial judges reasons.  He
    accepted the Crowns contention that
Gomboc
controlled the reasonable
    expectation of privacy analysis (at paras. 43-48).  He reasoned that the data
    gathered in
Gomboc
could not be meaningfully distinguished from the
    data available to the police in this case.  In his view, this data, like the
    data in
Gomboc
, said very little about the activities in the residence
    and virtually nothing about the personal lifestyles of the occupants.  Consequently,
    the nature of the information supported the Crowns contention that the data
    did not attract a reasonable expectation of privacy.

[57]

I agree with the trial judge that the information available
    from the data in this case cannot be meaningfully distinguished from the information
    available from the data in
Gomboc
.
I also agree that the approach to the reasonable expectation of
    privacy claim in
Gomboc

is
    directly applicable here.  I do not, however, agree that

Gomboc

is determinative of whether the
    appellants had a reasonable expectation of privacy.


[58]

There were three judgments in

Gomboc
.  Deschamps J. wrote for four members of
    the majority and Abella J. wrote for three.  McLachlin C.J. and Fish J. jointly
    authored a dissent.  The three judgments follow the same analytical approach to
    s. 8.  All of the judges agreed that 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 were the key
    factors in deciding whether the customer had a reasonable expectation of
    privacy.


[59]

On the analysis of Deschamps J., the nature of the information, and the nature
    of the relationship between the customer and the provider both pointed away
    from any reasonable expectation of privacy in the data.  Deschamps J. described
    the nature of the information available from the energy consumption data, at
    para. 43:

Considerations relevant to the informational privacy analysis
    therefore lead to the conclusion that no expectation of privacy in the
    electricity consumption information was objectively reasonable.  Disclosing
    information about electricity consumption is not invasive or revelatory of the
    respondents private life.  It does not yield anything meaningful in terms of
    biographical core data that attracts constitutional protection.

[60]

Having found that the data did not reveal the kind of information that
    attracted a privacy claim, Deschamps J. turned to the relationship between the
    customer/accused and the energy provider.  She stressed that no obligation of
    confidentiality was owed by the service provider to the customer.  She observed
    that disclosure to the police for the purposes of a criminal investigation was
    explicitly permitted by the applicable regulatory scheme unless the customer
    declared that it did not want its information shared with the police.  The
    accused had not made that declaration:
Gomboc
, at paras. 41-43.  In the
    end, Deschamps J. found that none of the significant factors supported the
    claim of a reasonable expectation of privacy in the energy consumption data.

[61]

Abella J., for the other three members of the majority, agreed that the
    nature of the relationship between the customer and the energy provider
    foreclosed a claim of a reasonable expectation of privacy in the data.  She
    stressed the regulatory provision which allowed the energy provider to give the
    information to the police absent an express request by the customer that the
    information not be given to the police:
Gomboc
, at paras. 83-84, 95.

[62]

Abella J., however, took a different view of the nature of the
    information exposed to the police by the energy consumption data.  She opined,
    at para. 81:

I respectfully disagree with Deschamps J.s conclusion that the
    DRA is insufficiently revelatory.  I agree instead with Mr. Gomboc that the DRA
    data can in fact reveal more personal information about a customer than the
    billing records at issue in
Plant
because of the strong and reliable
    inference that can be made from the patterns of electricity consumption it
    conveys [T]he DRA is a surveillance technique that is intrusive enough to
    yield usually reliable inferences as to the presence within the home of one
    particular activity:  a marijuana grow operation.

[63]

Abella J.s finding that the accused had no reasonable expectation of
    privacy and, hence, no s. 8 claim, rested on her assessment of the nature of
    the relationship between the service provider and the customer/accused.

[64]

The two dissenters agreed with Abella J. that the nature of the
    information revealed by the data was sufficiently revelatory to potentially
    attract a reasonable expectation of privacy.  They described the information,
    at para. 124, as allowing the police to make informed
predictions
concerning the
probable
activities taking place within a home (emphasis
    in original).  In the dissenters view, the potential accuracy of those predictions
    was sufficient to imperil the revelation of personal and private activities in
    the home.  Those activities attracted a reasonable expectation of privacy.

[65]

The dissenters also rejected the claim that the relationship between the
    customer and the energy provider was inconsistent with a reasonable expectation
    of privacy.  I need not detail that analysis:  see
Gomboc
, at paras.
    138-41.

[66]

As I read the judgments in
Gomboc
, seven judges
    (Deschamps J.s four and Abella J.s three) held that the nature of the
    relationship between the customer/accused and the service provider compelled
    the conclusion that the accused had no reasonable expectation of privacy in the
    information.  Five of the judges, Abella J.s three and the two dissenters, found
    that the energy consumption data had a sufficient capacity to reveal personal activities
    within the home, particularly the existence of a marihuana grow-op, to potentially
    support the existence of a reasonable expectation of privacy.  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.  That approach subsequently drew the support
    of the unanimous court in

Spencer

(at paras. 26, 31, 47).

[67]

Insofar as the nature of the information available from the
    electricity consumption data is relevant to the reasonable expectation of
    privacy inquiry, I think the view of five judges in
Gomboc

supports the appellants position. 
    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.


[68]

I also agree with the appellants that the nature of the
    contractual relationship between the customer and the accused in
Gomboc

was different from the relationship
    between Horizon and its customers, including the appellants.  The holding in
Gomboc

that the nature of the relationship between
    the accused and the energy supplier did not support a reasonable expectation of
    privacy cannot simply be transplanted to the facts of this case.  Importantly,
    there is no equivalent in this case to the regulation in
Gomboc

that put the onus on the customer/accused
    to prohibit the energy provider from sharing information with the police.
[3]
That single feature of the accused/service provider relationship proved crucial
    to the outcome of the reasonable expectation of privacy inquiry in the minds of
    the seven judges in the majority.

[69]

The nature of the relationship between Horizon and its
    customers requires an examination of several documents.  I see no single
    feature of that relationship which tells conclusively for or against the
    existence of a reasonable expectation of privacy in the energy consumption data. 
    I will address the nature of the relationship below (see paras. 89-109).

(ii)

R. v. Spencer

[70]

As I do not accept that
Gomboc

is determinative, I turn to

Spencer
, the latest decision
    from the Supreme Court of Canada involving privacy claims in information
    provided to the police by a service provider.  The trial judge did not have the
    benefit of
Spencer

as
    it was released about a month after the trial judge gave his decision.
[4]


[71]

In
Spencer
, the police identified an internet
    protocol (IP) address of a computer being used to access child pornography.  The
    police, without a warrant, obtained the subscriber information (customers
    name, address and telephone number) relevant to that computer from the internet
    service provider.  This information led the police to the appellant.


[72]

The appellant argued that the police violated his rights under s. 8 of
    the
Charter

when they
    obtained the subscriber information from the internet service provider.  The Supreme
    Court of Canada unanimously agreed with that claim.

[73]

In considering the s. 8 claim, Cromwell J., at para. 18, organized
    the factors relevant to the reasonable expectation of privacy inquiry into four
    groups:

The wide variety and number of factors that may be considered
    in assessing the reasonable expectation of privacy can be grouped under four
    main headings for analytical convenience:  (1) the subject matter of the
    alleged search; (2) the claimants interest in the subject matter; (3) the
    claimants 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.

I will consider the appellants claim under the same
    four headings.

The subject matter of the search

[74]

I have already discussed this factor in the course of examining the three
    judgments in
Gomboc
.
Spence
r stresses that in defining the
    subject matter of the search when the claimant advances an informational
    privacy claim, one must look to the connection between the impugned
    investigative technique and the privacy interests at stake:
Spencer
, at
    para. 26.  In the present case, the police investigative technique involved judicially
    unrestricted access to data generated on a continual and ongoing basis by
    activities within the home of the appellant.

[75]

The energy consumption data given to the police by Horizon had two informational
    components.  First, it revealed total energy consumption over a three-year
    period and hourly energy consumption over a two-month period.  That data on its
    own, like the information in
Plant
, said very little about the activities
    of the occupants within the residence.  However, the data and, in particular
    the hourly pattern of usage, as demonstrated by the Crowns evidence at trial, provided
    a strong inference that a marihuana grow-op was being operated within the residence. 
    The subject matter of the search includes both the raw data and the inferences that
    can be drawn from that data about the activity in the residence.  In the same
    way that the subscriber information in
Spencer
permitted a strong
    inference as to certain internet activity at a given point in time, the energy
    consumption data supplied by Horizon permitted a strong inference as to a
    certain ongoing activity within the residence.

[76]

Activities conducted within ones home, a bastion of personal privacy
    throughout the history of the common law, fall at the centre of the zone of
    personal privacy:
Tessling
, at para. 22.  It matters not that the
    information may reveal only certain activities, or that the activities revealed
    are criminal:
Spencer
, at para. 36.  The subject matter of the alleged
    search favours the existence of a reasonable expectation of privacy.

The claimants privacy interests in the subject matter of the alleged
    search

[77]

Informational privacy is closely tied to the right to control access to,
    and the use of, information.  At its most vigorous, informational privacy is a
    claim to confidentiality in, and/or exclusive use of, information:
Spencer
,
    at paras. 38-40;
[5]
and
R. v. Marakah
, 2016 ONCA 542, 338 C.C.C. (3d) 269, at paras.
    57-64.

[78]

The appellants have no claim to exclusivity over the information. 
    Horizon has the right to use the information for many purposes.  It legitimately
    uses the information for its own business purposes, for various regulatory
    purposes, and to monitor the potential misuse and unauthorized use of its
    services.

[79]

The energy consumption data cannot be described as confidential or
    highly personal.  It would also be a stretch to suggest that the inferences
    available from that data would reveal biographical core information about the
    residents of the home.  Section 8 can, however, protect informational privacy
    interests beyond that biographical core:  see
R. v. A.M.
, 2008 SCC
    19, [2008] 1 S.C.R. 569, at paras. 67-68.

[80]

The appellants also did not have anything approaching exclusive control
    over the dissemination of the energy consumption data.  The extent to which the
    data could be shared with others was subject to a complicated and interlocking
    myriad of contractual, legislative and regulatory provisions.  Any claim the
    appellants had to confidentiality in, or control over, the data was significantly
    qualified.

[81]

I would describe the appellants privacy rights in the subject matter of
    the data as attenuated by Horizons legitimate interests, the relatively
    non-personal nature of the information revealed by the data, and the
    appellants substantially qualified right to control access to and dissemination
    of the information contained in the data.  These features do not, however,
    necessarily extinguish any reasonable expectation of privacy in the data.

The subjective expectation of privacy

[82]

The trial judge found that the appellants had a subjective expectation
    of privacy in respect of activities within their home.  This is hardly a
    surprising finding in light of the nature of the activity being conducted by
    the appellants.  The respondent does not take issue with the trial judges finding. 
    I accept that the appellants had a subjective expectation of privacy.  As
    explained above (at para. 45), a subjective expectation of privacy is neither a
    prerequisite to, nor determinative of, the existence of a reasonable
    expectation of privacy:
Ward
, at paras. 86-87.

Was the appellants expectation of privacy objectively reasonable?

[83]

A consideration of the reasonableness of the subjective expectation of
    privacy does not address separate factors relevant to a privacy claim, but
    instead examines all factors through the reasonableness lens.  The court looks
    at the claimants subjective expectation of privacy in light of other factors,
    including the nature of the information in issue, the nature of the
    relationship between the service provider and the customer, and the applicable
    statutory and regulatory landscape.  The court then decides whether the
    claimants expectation is objectively reasonable having regard to those circumstances.
Spencer
focuses on the nature of the relationship between the service
    provider and the customer as it applies to the information in issue and as it
    is revealed by the applicable documents and statutory provisions:
Spencer
,
    at para. 54.  The same analysis is required in respect of the appellants
    privacy claim.

[84]

In examining the significance of the relevant documents, one must bear
    in mind that none are the product of a negotiated bargain between Horizon and
    its customers:  see
Spencer
, at para. 54.  The energy distribution
    field is highly regulated.  Horizon has a limited say about the terms of its
    relationship with its customers.  The customers have even less say.  The
    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.

[85]

It would be equally wrong to take the terms of the documents as necessarily
    conclusive of the existence of a reasonable expectation of privacy.  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:  see
supra
,
    para. 41.  The documents describing the relationship between the customer and Horizon
    are relevant to that inquiry, but are not determinative.

[86]

I look first to documents generated by Horizons regulator, the Ontario
    Energy Board (OEB).  The OEB imposes conditions referable to the disclosure
    of customer information, both in the distribution licence issued to Horizon and
    in the Distribution System Code (DSC) authored by the OEB.  The DSC, among
    other things, sets out minimum conditions governing the contractual relationship
    between Horizon and its customers.

[87]

Paragraph 15 of the licence places restrictions on Horizons use and disclosure
    of consumer information.  Paragraph 15.1 reads:

The Licensee [Horizon] shall not use information regarding a
    consumer obtained for one purpose for any other purpose without the written consent
    of the consumer

[88]

Paragraph 15.2 prohibits disclosure of consumer information but sets out
    four exceptions.  Paragraph 15.2(c) allows for disclosure where, information
    is required to be disclosed for law enforcement purposes.

[89]

Paragraph 15.1 places an obligation on Horizon to use consumer
    information only for the purpose for which it was obtained.  Horizon is obliged
    under para. 15.1 to obtain the written consent of the consumer if it proposes
    to use the information for any other purpose.  This requirement is the exact
    opposite of the regulation in
Gomboc
, which allowed the electricity
    provider to share the information with others unless the customer had
    specifically objected to the sharing of the information.

[90]

Paragraph 15.2 of the licence creates a limited law enforcement
    exception to disclosure triggered only when the information is required to be
    disclosed.  Paragraph 15.2 ties Horizons ability to disclose information to
    the police to the police authority to require disclosure of that information.
[6]
At the time Horizon disclosed the appellants data, the police could not, and
    did not, require that disclosure.  At most, the police requested the
    disclosure.  The terms of Horizons licence support the appellants contention
    that the energy consumption data is the subject of a reasonable expectation of
    privacy.

[91]

The DSC does not specifically address Horizons obligations to maintain
    the privacy of customer information.  It does, however, set out circumstances
    in which Horizon can disclose that information.  Paragraph 4.3.1 allows
    disclosure of possible unauthorized energy use to the police if deemed appropriate
    by Horizon.  The phrase unauthorized energy use is not defined.  Nor does the
    DSC say anything about when it would be appropriate for Horizon to notify the
    police.

[92]

The Crown submits that para. 4.3.1 is sufficiently broad to authorize
    disclosure of energy believed to have been used in a criminal enterprise such
    as marihuana production.  The appellants submit that unauthorized energy use
    refers only to theft or some other form of misappropriating electricity.  I need
    not choose between the two positions.  On my reading of the DSC as a whole, the
    extent to which customer information must be kept confidential by Horizon is
    addressed, at best, only indirectly and incidentally.  I do not find the terms
    of the DSC particularly helpful in considering whether the appellants have a
    reasonable expectation of privacy in the data.

[93]

The parties referred to two documents authored by Horizon that address
    Horizons rights and obligations in respect of customer information.  The
    first, Horizons Conditions of Service, is required by the DSC and largely
    reflects the provisions in that document.  Paragraph 2.2.1 of the Conditions of
    Service builds on the unauthorized energy use provision in the DSC set out
    above (at para. 93).  Paragraph 2.2.1 of the Conditions of Service refers to
    unauthorized energy usage as including, but not limited to, energy
    diversion, fraud or abuse.  The paragraph concludes:

Unauthorized use of energy is a criminal offence, and Horizon
    Utilities will notify, as appropriate, Measurement Canada, the ESA, the police
    and retailers (if applicable).

[94]

Just as with the interpretation of the DSC, the Crown and the appellants
    disagree about the meaning of the crucial words in para. 2.2.1 of the
    Conditions of Service.  The Crown seizes on the word abuse in para. 2.2.1 as
    indicative of unauthorized uses of electricity beyond theft or fraud.  The
    Crown contends that this provision can be read as authorizing disclosure of
    energy consumption data when that consumption relates to criminal activity. 
    The Crowns interpretation is tenable, but as with the terms of the DSC, I do
    not find the provision in the Conditions of Service referable to disclosure of
    information to the police as sufficiently clear or specific to shed much light
    on the reasonable expectation of privacy inquiry.

[95]

Unlike the DSC and the Conditions of Service, Horizons Privacy Policy
    speaks directly to Horizons obligations to maintain the confidentiality of its
    customers information.  Horizons Privacy Policy begins with this promise to
    its customers:

As a company, it [Horizon] is committed to protecting
    information about identifiable individuals who are either its customers or its
    employees.

[96]

Customers of Horizon are deemed to accept the conditions of the Privacy
    Policy when they receive Horizons service (s. 1).  The Privacy Policy
    expressly applies to customers energy consumption records (s. 2).

[97]

The Privacy Policy identifies six circumstances in which Horizon may
    disclose a customers personal information to third parties.  The fifth
    potentially involves disclosure to the police:

Horizon may disclose a customers personal information:

(e) to persons as permitted or required by Applicable Law

[98]

The phrase Applicable Law is described in the Privacy Policy as the
    privacy laws that apply to Horizon.  Horizon is subject to provincial privacy
    laws, the
Municipal Freedom of Information and Protection of Privacy Act
,
    R.S.O. 1990, c. M.56 (MFIPPA) and federal privacy legislation, the
Personal
    Information Protection and Electronic Documents Act
, S.C. 2000, c. 5
    (PIPEDA).

[99]

Both acts follow the same general pattern.  They prohibit disclosure,
    without consent, of personal information in the hands of any entity that falls
    under the authority of the Act.  Both Acts contain exceptions to the
    prohibition against disclosure that are potentially engaged in the course of criminal
    investigations by the police.

[100]

Spencer
considered the exception set out s. 7(3)(c.1)(ii) of PIPEDA.  That provision
    permits disclosure to the police of personal information where the disclosure
    is made pursuant to a request in which the police identify their lawful
    authority for obtaining the information.  The request must be made for the purpose
    of enforcing any law in Canada carrying out an investigation relating to the
    enforcement of any such law or gathering intelligence for the purpose of
    enforcing any such law.

[101]

Cromwell J., for
    the court, rejected the Crowns argument that the disclosure exception was
    triggered by a police request for information that was itself not prohibited by
    law.  He said, at para. 65:

The overall impression created by these terms is that
    disclosure at the request of the police would be made only where required or
    permitted by law.  Such disclosure is only permitted by
PIPEDA
in
    accordance with the exception in s. 7, which in this case would require the
    requesting police to have lawful authority to request the disclosure.
For
    reasons that I will set out in the next section, this request had no lawful
    authority in the sense that while the police could ask, they had no authority to
    compel compliance with that request
. [Emphasis added.]

[102]

Later, at para.
    70, Cromwell J. added:


PIPEDA
prohibits disclosure of the information unless
    the requirements of the law enforcement provision are met,
including that
    the government institution discloses a lawful authority to obtain, not simply
    to ask for the information
:  s. 7(3)(c.1)(ii)
.
[Emphasis added.]

[103]

Cromwell J.
    recognized that the protection of personal privacy was one of the purposes of
    PIPEDA.  As he observed, at para. 70, an interpretation of the disclosure
    exception which required only a lawful request by the police, would render the
    privacy protections in the rest of the Act virtually meaningless in the
    context of an ongoing police investigation.

[104]

The
    interpretation of the disclosure exception in s. 7(3)(c.1)(ii) of PIPEDA as set
    out in
Spencer
fits comfortably with the terms of Horizons licence. 
    Both the statute and the licence recognize Horizons obligation to maintain the
    confidentiality of its customers information, absent a lawful demand by the
    police requiring Horizon to provide the material to the police.  The informal
    information-sharing arrangement between Horizon and the police described in the
    evidence is inconsistent with both the terms of Horizons licence and the
    disclosure provisions in PIPEDA.  I would add that the specific police request
    to Horizon for further energy consumption data in this case (see
supra
,
    at para. 16) also fails to conform with the requirement in s. 7(3)(c.1)(ii) of
    PIPEDA that the request identify the lawful authority for the request:  see
Ward
,
    at para. 44.

[105]

The law
    enforcement exception permitting disclosure of personal information in the
    provincial legislation is found in s. 32(g) of MFIPPA:

An institution shall not disclose personal information in its
    custody or under its control except,

(g) if disclosure is to a law enforcement agency in Canada to
    aid an investigation undertaken with a view to a law enforcement proceeding or
    from which a law enforcement proceeding is likely to result.

[106]

On its face, s.
    32(g) seems broader than the law enforcement exception in PIPEDA, in that it
    does not require that the police identify a source of lawful authority to
    obtain the information.  However, like PIPEDA, the protection of personal
    privacy in information is one of the purposes of MFIPPA.  That purpose cannot
    be entirely negated by an overly broad and literal reading of the provisions
    that create exceptions to the confidentiality requirement.

[107]

Section 32(g)
    gives the holder of the information (Horizon) a discretion to release the
    information in the circumstances described in s. 32(g).  It must be taken that
    the holder of the information will make an independent and informed judgment in
    exercising that discretion:
Trapp
, at paras. 47-55.  An independent
    and informed judgment requires a specific request for the information made in
    the context of a specific criminal investigation.  The exception carved out by s.
    32(g) does not contemplate an ongoing sharing of personal information with the
    police triggered either by a police request for the information, or the holder
    of the informations belief that the police may have some interest in the
    information.  Horizons disclosure to the police cannot be sheltered under s.
    32(g).

[108]

Spencer
,
    at para. 64, also refers to the disclosure exceptions in s. 7(3)(d) of PIPEDA. 
    That provision applies to disclosure on the initiative of the organization. 
    Under s. 7(3)(d)(i), Horizon could choose to take energy consumption data to
    the police if it had reasonable grounds to believe that the information
    relates to a contravention of the laws of Canada.

[109]

As acknowledged
    in

Spencer
, at para.
    64, the power to disclose on the initiative of an organization holding the
    information is broader than the power to disclose at the request of the
    police.  It may be that Horizon could develop a policy consistent with s.
    7(3)(d) that would permit Horizon to disclose, on its own initiative, energy
    consumption data in circumstances in which Horizon was able to make the
    determination that the data provided reasonable grounds to believe that the customer
    was using the residence as a marihuana grow-op.
[7]


[110]

Section 7(3)(d)
    of PIPEDA does not, however, apply to the arrangement between Horizon and the
    police in this case.  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.  As Mr. Francos
    evidence and email make clear, Horizon passed any energy consumption data on to
    the police if Horizon thought the data could interest the police, or if the
    police requested the data.

[111]

In the totality
    of the circumstances, and having regard to the analysis in
Spencer
, at
    paras. 60-65, the terms of Horizons licence and Privacy Policy and the
    provisions of the privacy legislation referenced in the Privacy Policy, I would
    hold that the appellants had a reasonable expectation of privacy in the energy
    consumption data.  Horizon had an obligation to protect the privacy of the
    appellants energy consumption data, albeit a qualified obligation.  However, [a]
    reasonable though diminished expectation of privacy is nonetheless a reasonable
    expectation of privacy, protected by s. 8 of the
Charter
:
Cole
,
    at para. 9.  The nature and scope of the appellants reasonable expectation of
    privacy becomes relevant when assessing the reasonableness of the state conduct
    that intrudes upon the expectation of privacy and when considering whether
    evidence obtained in breach of s. 8 should be excluded under s. 24(2) of the
Charter
.

[112]

The trial
    judges review of the documentation and the relevant privacy legislation led
    him to conclude, at para. 47, that the appellants had no reasonable expectation
    of privacy:

I conclude that a reasonable and informed person, in
    considering whether it was reasonable for the applicants to have a reasonable
    expectation of privacy in their subscriber information, would take into account
    the service providers legitimate interests in voluntarily disclosing that
    information to the police when that disclosure would assist in an investigation
    of the alleged criminal misuse of the service providers services.

[113]

In so holding,
    the trial judge quoted and applied this courts reasoning in
Ward
, at
    paras. 98-100.   On the analysis in
Ward
,
I think the trial judge probably came to the right
    conclusion.  However, the part in
Ward

relied on by the trial judge was specifically rejected in
Spencer
,
    at para. 63.
Spencer
was released shortly after the trial judge gave
    his reasons.

[114]

In
Spence
r,
    the court held that
Ward
erroneously considered the service providers
    reasonable and legitimate interest in voluntarily disclosing information of
    criminal activity to the police as a relevant consideration in interpreting the
    scope of the law enforcement exception in s. 7(3)(c.1)(ii) of PIPEDA.

[115]

With the benefit
    of the analysis in
Spencer
, I am satisfied that the appellants had a
    reasonable expectation of privacy in their energy consumption data.  The
    examination and use of that data without the appellants consent constituted a search
    and seizure under s. 8 of the
Charter
.
[8]


D.

Was the search unreasonable?

[116]

The police did
    not have a warrant or other judicial authorization for the examination of the
    energy consumption data.  Absent prior judicial authorization, the burden falls
    on the Crown to demonstrate that the search or seizure was reasonable within
    the meaning of s. 8 of the
Charter
:
R. v. Collins
, [1987] 1
    S.C.R. 265, at p. 278.

[117]

To establish
    that the search or seizure was reasonable, the Crown must establish three
    things:

·

the
    search was authorized by law;

·

the
    law authorizing the search was reasonable; and

·

the
    search was conducted in a reasonable manner:
Kang-Brown
, at para. 48;
    and
Spencer
, at para. 68.

[118]

At trial, and on
    appeal, the Crown resisted the appellants s. 8 claim principally on the ground
    that s. 8 was not engaged because the appellants did not have a reasonable
    expectation of privacy in the data.  Assuming that argument failed and the
    appellants were found to have a reasonable expectation of privacy in the data, the
    Crown did not point to any statutory law or common law authority authorizing
    the police, with Horizons cooperation, to examine and use the energy
    consumption data for law enforcement purposes.  The Crown, I think correctly,
    disavowed any reliance on PIPEDA or MFIPPA as authority for any power to
    conduct a search or seizure:  see
Spencer
, at paras. 71-73; and
Ward
,
    at paras. 46-47.

[119]

I conclude that
    the examination and use of the data by the police was not authorized by law and
    therefore could not be reasonable within the meaning of s. 8 of the
Charter
. 
    The appellants right to be free from unreasonable search and seizure was
    breached.

The constitutionality of the privacy legislation

[120]

In their factum,
    the appellants ask the court to declare a myriad of provisions in the MFIPPA
    and PIPEDA unconstitutional as contrary to s. 8 of the
Charter
.  The
    appellants also challenge para. 4.3.1 of the DSC as contrary to s. 8.  As
    outlined above (at para. 93), that section allows Horizon to disclose possible
    unauthorized energy use to the police.

[121]

Very little time
    was spent in oral argument on the constitutionality of the statutory
    provisions.  With respect, I see no merit to the argument that any of the
    provisions offend s. 8 of the
Charter
.

[122]

As stated in
Ward
,
    and more importantly in
Spencer
, PIPEDA does not create any police
    search or seizure power:
Spencer
, at para. 71; and
Ward
, at
    paras. 46-47.  The reasoning in
Spence
r and
Ward
has equal
    application to MFIPPA.  It, too, does not authorize any search or seizure.

[123]

I agree with the
    submission of the intervener, the Attorney General of Ontario.  MFIPPA and
    PIPEDA give holders of personal information the discretion, if the statutory conditions
    precedent are met, to disclose information to the police in connection with law
    enforcement investigations.  The provisions are permissive and in no way
    determinative of any s. 8 claim advanced in respect of the disclosure of the
    information to the police.  The terms of the applicable privacy legislation are
    one of many factors that informs the courts determination of whether a reasonable
    expectation of privacy exists, and if so, the nature and extent of that expectation. 
    I think the same observations apply to the permissive disclosure provision in para.
    4.3.1 of the DSC.

[124]

In their factum, the appellants acknowledge that neither
    PIPEDA nor MFIPPA creates police powers of search or seizure.  However, the
    appellants go on to challenge various provisions in those statutes on the basis
    that they fail to meet the requirements set down in
Hunter v. Southam Inc.
,
    [1984] 2 S.C.R. 145.
Hunter
does not, however, create a freestanding
    constitutional standard.  Rather,

Hunter
identifies standards applicable to statutes that authorize searches or
    seizures.  As neither PIPEDA nor MFIPPA authorize a search or seizure, compliance
    with the
Hunter
standard is irrelevant to the constitutionality of
    those provisions.

[125]

The constitutional challenges to MFIPPA, PIPEDA, and para.
    4.3.1 of the DSC fail.


The admissibility of the evidence seized from the appellants
    residence

[126]

The police
    entered the appellants residence under the authority of a warrant.  The police
    seized the marihuana plants and the cash pursuant to that warrant.  The ITO
    contained the information provided to the police by Horizon, both in the
    initial email, and as a result of subsequent requests by the police.  The ITO
    also included evidence gathered from the observations of the residence on
    various occasions.

[127]

The evidence
    obtained from Horizon by the police is constitutionally tainted by virtue of
    the breach of the appellants s. 8 rights.  The validity of the warrant depends
    on whether a justice, acting reasonably, could have granted the warrant without
    the information provided by Horizon.  I am satisfied that without that evidence,
    there was no basis upon which the warrant could have been issued.  The warrant
    is invalid and the search of the residence must be treated as a warrantless
    search and consequently a violation of the appellants s. 8 rights:
R. v.
    Grant
, [1993] 3 S.C.R. 223, at pp. 251-52; and
Spencer
, at para.
    74.  The marihuana and the money seized by the police was obtained in a manner
    that infringed s. 8.

[128]

Having found no
    breach of s. 8, the trial judge did not consider the operation of s. 24(2) of
    the
Charter
.  On this record, this court can properly address s.
    24(2).

[129]

Evidence
    obtained in a manner that infringes a
Charter
right must be excluded
    under s. 24(2) if the appellants can establish that having regard to all the
    circumstances, the admission of it would bring the administration of justice
    into disrepute.  In determining whether evidence should be excluded under s.
    24(2), the court considers the seriousness of the
Charter
-infringing
    state conduct, the impact of the infringement on the appellants
Charte
r-protected
    interests, and societys interest in an adjudication of the allegation on the
    merits:
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras.
    72-82.

[130]

The seriousness
    of the
Charter
-infringing state conduct focuses on the actions of the
    police.  Setting aside the police examination and use of the energy consumption
    data, I see nothing in the police conduct that would justify any criticism. 
    The police took the information received from Horizon and made their own
    independent investigation.  They applied for a warrant before entering the
    residence.  The disclosure in the ITO was complete and accurate.  There is no
    suggestion that the warrant was not executed in a proper manner, or that
    anything seized by the police was not properly seized under the terms of the
    warrant.  I see nothing to indicate that the police did not honestly and
    reasonably believe that they were lawfully entitled to enter and search the
    appellants residence.

[131]

I come to the
    police use of the information obtained from Horizon.  The police proceeded on
    the basis that they were entitled to examine and use the data provided by
    Horizon without first obtaining any judicial authorization.  I have concluded
    that they were wrong in doing so.  It is, however, difficult to criticize their
    actions, given the state of the law at the time of the search.  Under the
    existing case law (
Gomboc
and
Plant
), the police
    understanding that they were entitled to use the data was reasonable.  Indeed,
    this courts analysis in
Ward
, which post-dated the search, supports
    that understanding.  The error in that viewpoint became apparent only after
Spencer
,
    decided long after the relevant events.

[132]

The police acted
    reasonably in examining and using the data provided by Horizon without first
    obtaining judicial authorization to obtain the material.  The nature of the
    state conduct does not favour exclusion of the evidence:
Spencer
, at
    para.
77;
Cole
, at paras. 86-87;
R. v. Vu
,
    2013 SCC 60, [2013] 3 S.C.R. 657, at paras.
69-71; and
R. v. Saeed
,
    2016 SCC 24, [2016] 1 S.C.R. 518, per Karakatsanis J., concurring, at para.
    126.

[133]

The second
    factor  the impact of the breach on
Charter
-protected interests 
    should be approached from two perspectives.  First, the search of the
    appellants residence must be treated as a warrantless and unconstitutional
    search.  An unconstitutional search of a residence strikes at the heart of the
    privacy and security of the person interests protected by s. 8 of the
Charter
. 
    The negative impact on those interests occasioned by the search cannot be
    described as anything other than very serious.

[134]

Second, the
    search must be regarded as warrantless because of the infringement of the
    appellants s. 8 rights occasioned by the police examination and use of the
    energy consumption data.  While the appellants had a reasonable expectation of
    privacy in that data, the data and the inferences available from it cannot be
    said to include core biographical information, or information that reveals
    intimate and personal details of a persons lifestyle.  The information was
    capable of revealing one detail  the appellants were involved at a commercial
    level in the growing and sale of marihuana.  Further, for the reasons outlined
    above, the appellants reasonable expectation of privacy in the data was
    significantly attenuated.  I do not regard the police examination and use of
    the data as significantly undermining the values protected by s. 8 of the
Charter
.

[135]

Considering both
    the improper search of the residence, and the nature of the s. 8 violation
    occasioned by the use of the data, I regard the impact on the appellants
Charter
-protected
    interests as serious, although less serious than would have been the case had
    the examination and use of the data itself also constituted a serious intrusion
    on the appellants s. 8 rights.  This factor supports the appellants
    contention that the evidence should be excluded.

[136]

The third factor
     societys interests in an adjudication of the case on the merits  does not
    favour exclusion.  The evidence obtained in the search was completely reliable,
    virtually determinative of culpability, and essential to the Crowns case.  Without
    the evidence, there could be no trial on the merits.  The appellants conduct
    posed a significant and ongoing risk to those who lived around the appellants
    residence.  Society obviously has a strong interest in prosecuting those who,
    for money, choose to engage in a dangerous criminal activity that puts others around
    them at risk.

[137]

On balance, the
    appellants have not satisfied me that the marihuana and money seized from their
    residence should be excluded under s. 24(2) of the
Charter
.  The
    evidence was admissible.


IV



conclusion

[138]

I would dismiss
    the appeal.

Released: DD  August 10, 2017

Doherty J.A.

I agree. S.E. Pepall
    J.A.

I agree. K. van
    Rensburg J.A.





[1]

Horizons records showed the owner of the house as Horizons
    customer.  However, the appellants had paid the electricity bills for years. 
    The trial judge found, at paras. 19-22, that under the terms of service
    governing Horizons supply of electricity, there was an implied contract
    between Horizon and the appellants, sufficient to give the appellants standing
    to raise a s. 8 claim in relation to the energy consumption data.  That finding
    is not challenged on appeal.



[2]
MacAulay, at pp. 118-19, and Professor Austin, at pp. 510-12, indicate that
    other competing interests should only be considered when assessing whether a
    state intrusion upon a reasonable expectation of privacy was itself
    reasonable.  With respect, I think this approach ignores the distinction between
    societal values represented by legitimate third party interests, which are
    properly addressed at the reasonable expectation of privacy stage, and
    legitimate state interests such as law enforcement which are properly
    considered at the second stage of the inquiry.



[3]

Horizons Privacy Policy provides that use of the service is
    an implied consent to the use and disclosure of customer information for the
    purpose of providing the services.



[4]

As detailed above, I accept the argument that a majority in
Gomboc
recognizes a
    potential privacy interest in the energy consumption data collected in
Gomboc
.  Thus, I need
    not address the appellants arguments that this case is factually
    distinguishable from
Gomboc
, either because: the current technology available to and used by
    Horizon (although not in this residence) would permit more precise information
    as to energy consumption; or techniques, although not used by any energy
    provider in North America, would allow for the collection of energy consumption
    data capable of revealing a great deal more about the activities within a
    residence.  As the Crown points out, the Supreme Court of Canada has cautioned
    against deciding s. 8 claims on the basis of technology that may or may not be
    used in the future:
Tessling
, at para. 29.



[5]

Spencer
also recognizes anonymity
    as an aspect of informational privacy.  Anonymity is not at play here.



[6]

Paragraph 15.2 also allows disclosure to comply with any
    legislative or regulatory requirements.  The Crown did not argue that
    disclosure was justified on that ground.



[7]

Even if Horizon developed a policy that complied with s.
    7(3)(d), disclosure of the energy consumption data pursuant to that policy
    would not necessarily mean that the appellants did not have a reasonable
    expectation of privacy capable of triggering a s. 8 right when the police
    examined the material.



[8]

In holding that the appellants had a reasonable expectation of
    privacy in the data, I do not address the possibility that Horizon could have
    informed the police of its concern about the potential criminal activity
    associated with the use of its product by the appellants without disclosing the
    actual data:  see
Cole
, at para. 73.


