Court of Appeal for Ontario

Date: August 10, 2017

Docket: C59716

Judges: Doherty, Pepall and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Maria Del Carmen Orlandis-Habsburgo and Edwin Robert LeFrancois Appellants

Counsel

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

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. 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 Horizon's 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, Horizon's 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 Horizon's 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 Board's] Distribution System Code are not inconsistent with the Charter and that motion of the applicant[s] is dismissed.

II. Factual Background

[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 Horizon's Conditions of Service which describe the terms and conditions of the relationship between Horizon and its customer. That relationship is also subject to Horizon's written Privacy Policy, and the terms of Horizon's Electricity Distribution Licence which, among other things, speaks to disclosure of consumer information. Horizon's 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, Horizon's 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. Franco's 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 Horizon's 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. The Appeal

[20] The appeal can be divided into two parts. I will first consider whether Horizon's 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 Horizon's 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 officer's 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 person's 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.

[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 teacher's 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. Cole's 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 Horizon's 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 employer's criminal activity. Must the police refuse to look at the documents to avoid violating the employer's s. 8 rights? As Duarte teaches, it is one thing to say that Canadian values dictate that the state's power to decide when and how it will intrude upon personal privacy must be carefully circumscribed, and quite another to say that an individual's 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 Horizon's 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 claimant's 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 claimant's 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.

(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.

[42] The value Canadian society places on the individual's 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 claimant's belief or appreciation of the risk that the state could intrude upon the claimant's 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 individual's 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 individual's 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 claimant's 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.

(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 provider's 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 accused's 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 judge's reasons. He accepted the Crown's 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 Crown's 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 respondent's 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. 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.

[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 (customer's 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 claimant's interest in the subject matter; (3) the claimant's subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances.

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. Spencer 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 Crown's 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 one's 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 Claimant's 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; 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 Horizon's 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 judge's 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 claimant's 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 claimant's 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 Horizon's 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 Horizon's 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 Horizon's ability to disclose information to the police to the police authority to require disclosure of that information. 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 Horizon's 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 Horizon's 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 Horizon's rights and obligations in respect of customer information. The first, Horizon's 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 Crown's 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, Horizon's Privacy Policy speaks directly to Horizon's obligations to maintain the confidentiality of its customers' information. Horizon's 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 Horizon's 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 customer's personal information to third parties. The fifth potentially involves disclosure to the police:

Horizon may disclose a customer's 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 Crown's 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 Horizon's licence. Both the statute and the licence recognize Horizon's 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 Horizon's 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 information's belief that the police may have some interest in the information. Horizon's 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.

[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. Franco's 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 Horizon's 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 judge's 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 provider's 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 provider's services.

[113] In so holding, the trial judge quoted and applied this court's 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 Spencer, the court held that Ward erroneously considered the service provider's 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.

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 Horizon's 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 Spencer 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 court's 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' Charter-protected interests, and society's 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 court's 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 person's 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 – society's 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 Crown's 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: August 10, 2017

"Doherty J.A."

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

"I agree. K. van Rensburg J.A."