Does voluntary disclosure to the police by an electricity supply company of the defendant's power usage breach a right to privacy?
The Supreme Court of Canada has held, 7-2, that no such breach occurred in R v Gomboc [2010] SCC 55. The defendant was charged with cultivation of cannabis and his electricity usage was one aspect of the case against him. Four of the majority judges (Deschamps, Charron, Rothstein and Cromwell JJ) held that information about electricity use in a private dwelling was not about "intimate or core personal activities" of the occupants and did not carry a reasonable expectation of privacy. Core biographical data was not revealed. A relevant circumstance was that customers could expressly request that the supply company keep confidential the details about electricity usage, but here the defendant had not done that. This latter point was stressed by the concurring majority judges, Binnie, LeBel and Abella JJ.
Dissenting, McLaughlin CJ and Fish J held that there was a reasonable expectation of privacy in the circumstances of this case. This was because of the degree of intrusiveness was high: the accurate measuring of electricity usage supported inferences of criminal activity that was private information of use to the police. This form of search should only be permitted if the police could alternatively have obtained a search warrant. Customers could not be expected to be aware of the complex regulations which permitted the supply company to pass on information to the police, and the regulatory scheme was not intended to authorise the company to act as an agent for the police by spying on its customers.
Offenders often bypass their electricity meters, and are consequently charged with theft of electricity in addition to cultivation of cannabis. Police use of power consumption information in support of applications for search warrants may already be regarded as a good investigative technique; in R v Thompson [2001] 1 NZLR 129, (2000) 18 CRNZ 401 (CA) it does not appear to have occurred to anyone that this might have been objectionable.
