Friday, October 29, 2004

Supreme Court of Canada considers different species of personal privacy

The Supreme Court of Canada has just released its decision in R. v. Tessling, 2004 SCC 67. The matter at issue was whether the use of infrared imaging from outside a home constituted unreasonable search and seizure under the Charter of Rights and Freedoms. I haven't had a chance to read it in detail, but here's the headnote:

Date: 2004-10-29
Docket: 29670

Her Majesty The Queen


Walter Tessling


Attorney General of Ontario, Attorney General of Quebec and Canadian Civil Liberties Association

Neutral citation: 2004 SCC 67.
File No.: 29670.
2004: April 16; 2004: October 29.

Present: McLachlin C.J. and Iacobucci,* Major, Bastarache, Binnie, Arbour,* 1 LeBel, Deschamps and Fish JJ.


Constitutional law -- Charter of Rights -- Search and seizure -- Police using thermal imaging device to take 'heat' picture of accused's home from aircraft without warrant -- Whether warrantless use of thermal imaging device violated right against unreasonable search and seizure -- Canadian Charter of Rights and Freedoms, s. 8.

  The RCMP used an airplane equipped with a Forward Looking Infra-Red ("FLIR") camera to overfly properties owned by the accused. FLIR technology records images of thermal energy or heat radiating from a building. It cannot, at this stage of its development, determine the nature of the source of heat within the building or "see" through the external surfaces of a building. The RCMP were able to obtain a search warrant for the accused's home based on the results of the FLIR image coupled with information supplied by two informants. In the house, the RCMP found a large quantity of marijuana and several guns. The accused was charged with a variety of drug and weapons offences. At trial, he unsuccessfully argued that the FLIR overflight was a violation of his right to be free from unreasonable search and seizure guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, and was convicted. The Court of Appeal set aside the convictions. The court found that the use of FLIR technology constituted a search of the accused's home and, since it was done without a warrant, violated his s. 8 right. The court concluded that the evidence ought to have been excluded and the accused acquitted on all charges.

  Held: The appeal should be allowed. The FLIR overflight did not violate the accused's constitutional right to be free from unreasonable search and seizure.

  Few things are as important to our way of life as the amount of power allowed the police to invade the homes, privacy and even the bodily integrity of members of Canadian society without judicial authorization. Building upon the foundation laid by the common law, s. 8 of the Charter creates for "everyone" certain areas of personal autonomy where the state, including the police, cannot trespass. These areas we have now gathered up under the general heading of privacy. At the same time, social and economic life creates competing demands. The community wants privacy but it also insists on protection. Safety, security and the suppression of crime are legitimate countervailing concerns. Thus s. 8 of the Charter accepts the validity of reasonable searches and seizures.

  Privacy is a protean concept, and the difficult issue is where the "reasonableness" line should be drawn. The distinction between informational and territorial privacy is of assistance in the current factual situation. Whereas the Court of Appeal treated the FLIR imaging as equivalent to a search of the home, and thus "worthy of the state's highest respect", it is more accurately characterized as an external surveillance of the home to obtain information that may or may not be capable of giving rise to an inference about what was actually going on inside, depending on what other information is available to the police. FLIR is not equivalent to entry. Because of the emphasis on the informational aspect, the reasonableness line must be determined by focussing on the nature and quality of the information FLIR can actually deliver and then evaluating its impact on an accused's reasonable privacy interest.

  FLIR technology cannot, in its present state of development, permit any inferences about the precise activity giving rise to the heat. The accused had a privacy interest in the activities taking place in his home and it may be presumed that he had a subjective expectation of privacy in such activities to the extent they were the subject matter of the search. The fact that it was his home that was imaged using FLIR is an important factor, but it is not controlling and must be looked at in context and in particular, in this case, in relation to the nature and quality of the information made accessible to the police by FLIR technology. Everything shown in the FLIR photograph exists on the external surfaces of the building and, in that sense, FLIR records only information exposed to the public. Although the information about the distribution of the heat was not visible to the naked eye, the FLIR heat profile did not expose any intimate details of the accused's lifestyle or part of his core biographical data. It only showed that some of the activities in the house generate heat.

  Thus, when one considers the "totality of the circumstances", the use of FLIR technology did not intrude on the reasonable sphere of privacy of the accused. Patterns of heat distribution on the external surfaces of a house are not a type of information in which, objectively speaking, the accused had a reasonable expectation of privacy. The heat distribution information offered no insight into his private life and its disclosure scarcely affected his "dignity, integrity and autonomy".

  Technology must be evaluated according to its current capability, and its evolution in future dealt with step by step. Concerns should be addressed as they truly arise. FLIR technology at this stage of its development is both non-intrusive in its operations and mundane in the data it is capable of producing. The taking of a FLIR image therefore did not violate the respondent's reasonable expectation of privacy within the scope of s. 8 of the Charter.

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