R. v. Tessling, 2004 SCC 67, [2004] 3 SCR 432

R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67

Her Majesty The Queen                                                                                  Appellant

v.

Walter Tessling                                                                                             Respondent

and

Attorney General of Ontario, Attorney General of

Quebec and Canadian Civil Liberties Association                                      Interveners

Indexed as:  R. v. Tessling

Neutral citation:  2004 SCC 67.

File No.:  29670.

2004:  April 16; 2004: October 29.

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

on appeal from the court of appeal for ontario

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 was 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 generated 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 .

Cases Cited

Considered:  R. v. Wong, [1990] 3 S.C.R. 36; R. v. Plant, [1993] 3 S.C.R. 281; not followed:  Kyllo v. United States, 533 U.S. 27 (2001); referred to:  R. v. Evans, [1996] 1 S.C.R. 8; R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83; R. v. Stillman, [1997] 1 S.C.R. 607; Semayne’s Case, [1558-1774] All E.R. Rep. 62 (1604); R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Wiley, [1993] 3 S.C.R. 263; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. M. (M.R.), [1998] 3 S.C.R. 393; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Hutchings (1996), 111 C.C.C. (3d) 215; R. v. Boersma, [1994] 2 S.C.R. 488; Baron v. Canada, [1993] 1 S.C.R. 416; R. v. Monney, [1999] 1 S.C.R. 652; R. v. Joyce (1996), 95 O.A.C. 321; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Dinh (2003), 16 Alta. L.R. (4th) 26, 2003 ABCA 201; Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .

Authors Cited

Brougham, Lord Henry.  Historical Sketches of Statesmen Who Flourished in the Time of George III, vol. I.  London:  Richard Griffin and Co., 1855.

Canada.  Report of a Task Force established jointly by Department of Communications/Department of Justice.  Privacy and Computers.  Ottawa:  Information Canada, 1972. 

Orwell, George.  Nineteen Eighty-Four.  Toronto:  Penguin Books, 1949.

Westin, Alan F.  Privacy and Freedom.  New York:  Atheneum, 1970.

APPEAL from a judgment of the Ontario Court of Appeal (2003), 63 O.R. (3d) 1, 168 O.A.C. 124, 171 C.C.C. (3d) 361, 9 C.R. (6th) 36, 102 C.R.R. (2d) 132, [2003] O.J. No. 186 (QL), setting aside the accused’s convictions for drug and weapons offences.  Appeal allowed.

James W. Leising and Morris Pistyner, for the appellant.

Frank Miller and A. Thomas Costaris, for the respondent.

Scott C. Hutchison, for the intervener the Attorney General of Ontario.

Dominique Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec.

Peter M. Brauti, Sara J. Erskine and Brian G. Wasyliw, for the intervener the Canadian Civil Liberties Association.

The judgment of the Court was delivered by

1                                   Binnie J. _ This appeal requires us to consider some of the limits on the ability of the state to put our homes under surveillance using sophisticated technology without first obtaining a judicial warrant based on reasonable and probable grounds that an offence has been committed.

2                                   In the present case, the police used a thermal imaging device to take a “heat” picture of the respondent’s home from an overhead aircraft.  The camera, utilizing Forward Looking Infra-Red (“FLIR”) technology, recorded not patterns of light but the relative distribution of heat over the surface of the building.  The police did not obtain a search warrant prior to the overflight.

3                                   The FLIR image, taken together with other evidence, caused the police to infer the existence in the respondent’s home of a marijuana-growing operation (“grow-op”).  The respondent says the use of the FLIR technology constituted a search of his home, and having been done without a warrant, violated his constitutional right to be free from unreasonable search and seizure under s. 8  of the Canadian Charter of Rights and Freedoms .  The Ontario Court of Appeal agreed with him.  In our view, the Court of Appeal erred in that conclusion and the appeal must be allowed.

I.              Facts

4                                   The RCMP began investigating the respondent in February 1999.  They received information from two informants.  One of the informants, a source whose credibility was untested, claimed that the respondent and a colleague called Ken were producing and trafficking in marijuana.  The second informant, a proven source, told police that a known drug dealer was buying large quantities of drugs from a man named Ken in the area in which the respondent lived.  He did not directly implicate the respondent.  Marijuana grow-ops typically use high-intensity halide lamps and generate substantial amounts of heat.  The police contacted Ontario Hydro to find out if there was unusual electricity usage at any of the properties owned by the respondent or Ken but, according to the metered supply, the usage was normal.  Visual surveillance of the buildings revealed nothing to suggest a marijuana grow-op. 

5                                   On April 29, 1999, the police used an RCMP airplane equipped with a FLIR camera to overfly the buildings.  FLIR technology records images of thermal energy or heat radiating from a building. Once a baseline is calibrated, cooler areas show up as dark, and warmer areas are lighter.  FLIR imaging cannot, at this stage of its development, determine the nature of the source of heat within the building.  It cannot distinguish between heat diffused over an external wall that came originally from a sauna or a pottery kiln, or between heat that originated in an overheated toaster or heat from a halide lamp.  In short, the FLIR camera cannot “see” through the external surfaces of a building.  (In U.S. parlance it is “off-the-wall” technology as opposed to “through-the-wall” technology.)  However, the substantial amounts of heat generated by marijuana growing operations must eventually escape from the building.  The FLIR camera creates an image of the distribution of escaping heat at a level of detail not discernible by the naked eye.  A FLIR image, put together with other information, can help the police get reasonable and probable grounds to believe that a marijuana growing operation is in residence.

6                                   And so it was in this case.  The RCMP were able to obtain a warrant based on the results of the FLIR image of the respondent’s home coupled with the information supplied by the two informants.  When the RCMP entered the home, they found a large quantity of marijuana, two sets of scales, freezer bags, and several guns.  The street value of the marijuana was between $15,000 and $22,500.  The respondent was charged with a variety of offences, to which his response was that the FLIR overflight was a violation of his Charter  rights and the police should therefore never have been granted a search warrant based in part on the FLIR image.  Accordingly, in the absence of a valid search warrant, he argues, the evidence obtained by the police from inside the house should be excluded.  There then being insufficient evidence to support the convictions, he should be acquitted.

II.           Judicial History

A.     Superior Court (Thomson J.)

7                                   In brief oral reasons, the trial judge concluded that the use of FLIR technology was unobjectionable but even if it was objectionable the evidence ought nevertheless to be admitted because its exclusion would bring the administration of justice into disrepute.  The respondent was convicted and sentenced to six months’ imprisonment for possession of marijuana for the purposes of trafficking, six months concurrent for the related drug offences, and a total of 12 months for the weapons offences. 

B.      Court of Appeal for Ontario (O’Connor A.C.J.O., Abella and Sharpe JJ.A.)

8                                   Abella J.A. started with the proposition that the home is a place where privacy commands a high level of protection.  The question in the present case was whether “the privacy interest in the home extends to heat generated inside the home but reflected on the outside”: (2003), 63 O.R. (3d) 1, at para. 33.  She noted that in R. v. Evans, [1996] 1 S.C.R. 8, at para. 29, Sopinka J., when listing what he considered to be examples of lawful investigatory techniques, “notably included ‘overhead infrared photography’”.

9                                   Abella J.A. pointed out that the accused had a reasonable expectation of privacy in activities carried on within his residence and “the sole reason that police photograph the heat emanations is to attempt to determine what is happening inside the house” (para. 61).  While the images created by FLIR technology are relatively crude, “[t]he fact that it is necessary for the police to draw inferences from the heat emanating from the external walls in order to deduce what those internal activities are, does not change the nature of what is taking place” (para. 61). 

10                               In her view “there is an important distinction between observations that are made by the naked eye or even by the use of enhanced aids, such as binoculars, which are in common use, and observations which are the product of technology” (para. 63).  In particular, “FLIR technology . . . goes beyond observation, disclosing information that would not otherwise be available and tracking the external reflections of what is happening internally” (para. 65).  Thus:

The FLIR represents a search because it reveals what cannot otherwise be seen and detects activities inside the home that would be undetectable without the aid of sophisticated technology.  Since what is being technologically tracked is the heat generated by activity inside the home, albeit reflected externally, tracking information through FLIR technology is a search within the meaning of s. 8  of the Charter . [para. 68]

11                               With respect to whether the evidence should be admitted despite the unreasonableness of the search, Abella J.A. found the s. 8  breach to be a serious one since there was state intrusion into a home.  Reasoning further that there is “public, judicial, and political recognition that marijuana is at the lower end of the hierarchy of harmful drugs” (para. 81), she concluded that the evidence ought to have been excluded and the respondent was therefore entitled to be acquitted on all charges.

III.         Analysis

12                               The freedom from unreasonable search and seizure guaranteed by s. 8  of the Charter  is fundamental to the relationship between the state and the citizen.  It provides that:

8.  Everyone has the right to be secure against unreasonable search or seizure.

13                               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.  As La Forest J. stated in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28, “[t]he restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”

14                               The midnight knock on the door is the nightmare image of the police state.  Thus it was in 1763 that in a speech before the British Parliament, William Pitt (the Elder) famously extolled the right of everyone to exclude from his private domain the forces of the King:

The poorest man may in his cottage bid defiance to all the forces of the crown.  It may be frail _ its roof may shake _ the wind may blow through it _ the storm may enter _ the rain may enter _ but the King of England cannot enter! _ all his force dares not cross the threshold of the ruined tenement!

(Lord H. Brougham, Historical Sketches of Statesmen Who Flourished in the Time of George III (1855), vol. I, at p. 42)

15                               It is perhaps a long spiritual journey from Pitt’s ringing pronouncements to the respondent’s attempt to shelter a marijuana grow-op in the basement of his home in Kingsville, Ontario, but the principle is the same.  Building upon the foundation laid by the common law, s. 8  of the Charter  creates for “[e]veryone” certain areas of personal autonomy where “all the forces of the crown” cannot enter.  These areas we have now gathered up under the general heading of privacy, although in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159, Dickson J., as he then was, was careful not to foreclose the existence of s. 8  “interests beyond the right of privacy”, saying:

Like the Supreme Court of the United States, I would be wary of foreclosing the possibility that the right to be secure against unreasonable search and seizure might protect interests beyond the right of privacy, but for purposes of the present appeal I am satisfied that its protections go at least that far.

16                               Much of the law in this area betrays its early roots in the law of trespass.  In an earlier era, privacy was associated with private property, whose possession protected against intruders.  If the rights of private property were respected, and the curtains of the home (or the drawbridge of the castle) were pulled, the King’s agents could watch from a distance but would have no way of finding out what was going on inside.  As technology developed, the protection offered by property rights diminished.  Wiretaps, for example, require no physical intrusion, but can be implemented at a distance.  FLIR images can be taken from an airplane.  The courts were reluctant to accept the idea that, as technology developed, the sphere of protection for private life must shrink.  Instead, it was recognized that the rights of private property were to some extent a proxy for the privacy that ownership of property originally conferred, and therefore, as the state’s technical capacity for peeking and snooping increased, the idea of a protected sphere of privacy was refined and developed.  The perspective adopted by the Court in Hunter v. Southam, supra, accordingly, is that s. 8  “protects people, not places” (p. 159).  See also R. v. Thompson, [1990] 2 S.C.R. 1111, at p. 1142.

A.     Striking the Balance

17                               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.  A  balance must be struck, as held in Hunter v. Southam, supra, at pp. 159-60, per Dickson J.:

. . .  an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

18                               The notion of the “balance” was also canvassed by Sopinka J. in advocating a “contextual approach” in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293:

Consideration of such factors as the nature of the information itself, the nature of the relationship between the party releasing the information and the party claiming its confidentiality, the place where the information was obtained, the manner in which it was obtained and the seriousness of the crime being investigated allows for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement.

In the result the right to be free from examination by the state is subject to constitutionally permissible limitations.  First, “not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes.  On the contrary, only where those state examinations constitute an intrusion upon some reasonable privacy interest of individuals does the government action in question constitute a ‘search’ within the meaning of s. 8”; Evans, supra, at para. 11. It is only “[i]f the police activity invades a reasonable expectation of privacy, [that] the activity is a search”; R. v. Wise, [1992] 1 S.C.R. 527, at p. 533.   Second, as the language of s. 8 implies, even those investigations that are “searches” are permissible if they are “reasonable”.  A search will not offend s. 8 if it is authorized by a reasonable law and carried out in a reasonable manner: R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Collins, [1987] 1 S.C.R. 265.

B.      The Reasonable Expectation of Privacy

19                               Accordingly, the Court early on established a purposive approach to s. 8 in which privacy became the dominant organizing principle.  “The guarantee of security from unreasonable search and seizure only protects a reasonable expectation”:   Hunter v. Southam, supra, at p. 159 (emphasis in original).  Given the bewildering array of different techniques available to the police (either existing or under development), the alternative approach of a judicial “catalogue” of what is or is not permitted by s. 8 is scarcely feasible.  The principled approach was carried forward in R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45, where Cory J., referring to the need to consider “the totality of the circumstances”, laid particular emphasis on (1) the existence of a subjective expectation of privacy; and (2) the objective reasonableness of the expectation.

20                               Within the general principle thus stated, the cases have come to distinguish among a number of privacy interests protected by s. 8.  These include personal privacy, territorial privacy and informational privacy.

21                               Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects bodily integrity, and in particular the right not to have our bodies touched or explored to disclose objects or matters we wish to conceal.  The state cannot conduct warrantless strip searches unless they are incident to a lawful arrest and performed in a reasonable manner (R. v. Golden, [2001] 3 S.C.R. 679, 2001 SCC 83, at paras. 90-92) in circumstances where the police have reasonable and probable grounds for concluding that a strip search is necessary in the particular circumstances of the arrest (para. 98).  Nor may the police take bodily samples without authorization: R. v. Stillman, [1997] 1 S.C.R. 607. 

22                               The original notion of territorial privacy (“the house of everyone is to him as his castle and fortress”:  Semayne’s Case, [1558-1774] All E.R. Rep. 62 (1604), at p. 63) developed into a more nuanced hierarchy protecting privacy in the home, being the place where our most intimate and private activities are most likely to take place (Evans, supra, at para. 42; R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140, per Cory J.: “[t]here is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling-house’”;  R. v. Feeney, [1997] 2 S.C.R. 13, at para. 43), in diluted measure, in the perimeter space around the home (R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223, at pp. 237 and 241; R. v. Wiley, [1993] 3 S.C.R. 263, at p. 273), in commercial space (Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at pp. 517-19; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at pp. 641 et seq.), in private cars (Wise, supra, at p. 533; R. v. Mellenthin, [1992] 3 S.C.R. 615), in a school (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 32), and even, at the bottom of the spectrum, a prison (Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at p. 877).  Such a hierarchy of places does not contradict the underlying principle that s. 8 protects “people, not places”, but uses the notion of place as an analytical tool to evaluate the reasonableness of a person’s expectation of privacy.

23                               Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activities we are entitled to shield from the curious eyes of the state (R. v. S.A.B., [2003] 2 S.C.R. 678, 2003 SCC 60).  This includes commercial information locked in a safe kept in a restaurant owned by the accused (R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16).  Informational privacy has been defined as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”:  A. F. Westin, Privacy and Freedom (1970),  at p. 7.  Its protection is predicated on

the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit.

(Report of a Task Force established jointly by Department of Communications/Department of Justice, Privacy and Computers (1972), at p. 13)

24                               The distinction between personal, territorial and informational privacy provides useful analytical tools, but of course in a given case, the privacy interest may overlap the categories.  Here, for example, the privacy interest is essentially informational (i.e., about the respondent’s activities) but it also implicates his territorial privacy because although the police did not actually enter his house, that is where the activities of interest to them took place.

C.     Drawing the “Reasonableness” Line

25                               Privacy is a protean concept, and the difficult issue is where the “reasonableness” line should be drawn.  Sopinka J. offered a response to this question in the context of informational privacy in Plant, supra, at p. 293, as follows:

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

26                               I emphasize the word “include” because Sopinka J. was clear that his illustration (“intimate details of the lifestyle and personal choices”) was not meant to be exhaustive, and should not be treated as such.  Nevertheless, Plant clearly establishes that not all information an individual may wish to keep confidential necessarily enjoys s. 8  protection.

27                               The distinction between informational and territorial privacy is of some assistance in drawing the “reasonableness” line in the factual situation before the Court.  Whereas Abella J.A. treated the FLIR imaging as equivalent to a search of the home, and thus “worthy of the state’s highest respect” (para. 33), I think it is more accurately characterized as an external search for information about the home which 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.

28                               Moreover, because I emphasize the informational aspect, my focus is on the quality of information that FLIR imaging can actually deliver, whereas Abella J.A., looking to safeguard the home, looked more to the “theoretical capacity” of the FLIR technology.  For example, her reasons include the prediction that “[t]he nature of the intrusiveness is subtle but almost Orwellian in its theoretical capacity” (para. 79).

29                               In my view, with respect, the reasonableness line has to be determined by looking at the information generated by existing FLIR technology, and then evaluating its impact on a reasonable privacy interest.  If, as expected, the capability of FLIR and other technologies will improve and the nature and quality of the information hereafter changes, it will be a different case, and the courts will have to deal with its privacy implications at that time in light of the facts as they then exist.

30                               Counsel for the respondent of course views these matters somewhat differently.  He points to the observation of La Forest J. in R. v. Wong, [1990] 3 S.C.R. 36, a case dealing with surveillance by video camera, at pp. 43-44:

In Duarte [[1990] 1 S.C.R. 30], this Court held that unauthorized electronic audio surveillance violates s. 8  of the Charter .  It would be wrong to limit the implications of that decision to that particular technology.  Rather what the Court said in Duarte must be held to embrace all existing means by which the agencies of the state can electronically intrude on the privacy of the individual, and any means which technology places at the disposal of law enforcement authorities in the future.  [Emphasis in original.]

I do not read this passage as entrenching a free-standing prohibition on electronic or other technologies without a warrant.  The question is: does FLIR technology in fact intrude on the reasonable sphere of privacy of an individual?

D.     The “Totality of the Circumstances” Test

31                               I proceed on the basis of the “totality of the circumstances” test set out by Cory J. in Edwards and the questions listed therein, at para. 45, but the questions need to be tailored to the circumstances of the present case.

(1)   Did the Respondent Have a Reasonable Expectation of Privacy?

32                               On the facts of this case, we need to address:

1.                What was the subject matter of the FLIR image?

2.                Did the respondent have a direct interest in the subject matter of the FLIR image?

3.                Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image?

4.                If so, was the expectation objectively reasonable?  In this respect, regard must be had to:

a.    the place where the alleged “search” occurred;

b.    whether the subject matter was in public view;

c.    whether the subject matter had been abandoned;

d.    whether the information was already in the hands of third parties;  if so, was it subject to an obligation of confidentiality?

e.    whether the police technique was intrusive in relation to the privacy interest;

f.     whether the use of surveillance technology was itself objectively unreasonable;

g.    whether the FLIR heat profile exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature.

(2)   If There Was a Reasonable Expectation of Privacy in This Case, Was it Violated by the Police Conduct?

33                               With respect to this second question, as Abella J.A. pointed out, the law is clear that warrantless searches are presumptively unreasonable, absent exigent circumstances (Hunter v. Southam, supra; Collins, supra,  at p. 278; Evans, supra; and Grant, supra).  However, the second question is only reached if the first question is answered in the affirmative.

E.      Did the Respondent Have a Reasonable Expectation of Privacy in the Subject Matter of the FLIR Image?

(1)   What Is the Subject Matter of a FLIR Image?

34                               The parties agree that for present purposes the subject matter of FLIR technology was accurately set out in the information used by the RCMP to obtain the search warrant after the FLIR overflight, as follows:

Thermal infrared systems are often used to conduct “structure profiles”.  These devices are passive instruments which are sensitive to only thermal surface radiant temperature.  The devices do not see into, or through structures.  The FLIR system detects only energy which is radiated from the outside surface of an object.  Internal heat which is transmitted to the outside surface of an object is detectable.  This device . . . is essentially a camera that takes photographs of heat instead of light . . . The rooms of marijuana growing operations with halide lights are warmer than the average room in a residence.  The walls of these rooms emanate this heat to the outside, and are therefore detectable by the FLIR.  Heat in a residence is usually evenly distributed throughout the building’s exterior.  By comparing the pattern of heat emanating from the structure, it is possible to detect patterns of heat showing rooms or sections of a structure that may be housing the marijuana growing operation.

35                               It is evident from the final sentence that a FLIR image is only as helpful as the inferences that it is capable of supporting.  After reviewing the evidence, Abella J.A. concluded (at para. 69):

Some perfectly innocent internal activities in the home can create the external emanations detected and measured by the FLIR, and many of them, such as taking a bath or using lights at unusual hours, are intensely personal.

While sources such as baths and innocent light fixtures “create” external emanations of heat, the evidence is clear that FLIR technology cannot at this state of its development differentiate between one heat source and another.  The inferences that may be justified are extremely limited, as discussed in R. v. Hutchings (1996), 111 C.C.C. (3d) 215 (B.C.C.A.), at para. 29.

36                               It seems to me that Abella J.A. put her finger on the key to this case when she observed with respect to FLIR’s present utility that “[t]he surface emanations are, on their own, meaningless” (para. 66 (emphasis added)).  The information obtained via a FLIR image, by itself, cannot provide sufficient grounds to obtain a search warrant.  This is because, as the Crown acknowledges, the relative crudity of the present technology does not, in itself, permit any inferences about the precise activity giving rise to the heat.  For that, other evidence is required to determine if there is any reason to believe the source of the heat is a marijuana grow-op.  As Crown counsel put the point in oral argument, the process of obtaining a search warrant sits “on a fulcrum.  And you pile straws on one side.  And this [FLIR image] is one of the straws.”  Moreover, “if you don’t have a number of other cogent items of evidence, [FLIR] isn’t going to help you greatly”.  Based on current FLIR technology, this is correct.

(2)   Did the Respondent Have a Direct Interest in the Subject Matter of the Image?

37                               In Edwards, supra, the Court held that an accused had no s. 8  interest in the contents of his girlfriend’s apartment.  No such problem arises in this case.  The house under surveillance was the respondent’s home.

(3)   Did the Respondent Have a Subjective Expectation of Privacy in the Subject Matter of the FLIR Image?

38                               The respondent did not testify on the voir dire on his s. 24(2)  application to exclude the evidence, but in my view it may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private.  Such an expectation is rooted in the ancient law of trespass and finds its modern justification in the intimacies of personal and family life.  This is the approach adopted by the Ontario Court of Appeal and, so far as it goes, I agree with it.

39                               The Crown takes the position that the escape of heat from outside a home, like the escape of smoke from a fireplace chimney or cooking odours from a kitchen fan, represents the voluntary exposure of information.  Thus, the Crown argues, the respondent could have had no reasonable subjective expectation of privacy in the information obtained in the FLIR overflight.  The raw information, to the extent it was discernible to the naked eye, had been abandoned to the public domain in circumstances where casual observers or passers-by were under no obligation to keep the information confidential.

40                               It is true that a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place (R. v. Boersma, [1994] 2 S.C.R. 488; Stillman, supra, at para. 62, per Cory J., and at para. 226, per McLachlin J. (as she then was), dissenting; Evans, supra, at para. 50, per Major J., concurring; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 453; Dyment, supra, at p. 435; and R. v. Monney, [1999] 1 S.C.R. 652, at para. 45).

41                               However, I do not think it can be said that “allowing” heat to escape rebuts an expectation of privacy in the way, for example, that the accused was said to “abandon” his privacy interest in the garbage he put out on the street for collection in R. v. Joyce (1996), 95 O.A.C. 321 (C.A.), at paras. 4-5.  Few people think to conceal their home’s heat loss profile, and would have difficulty doing so if they tried.  Living as he does in a land of melting snow and spotty home insulation, I do not believe that the respondent had a serious privacy interest in the heat patterns on the exposed external walls of his home.  However, the police were clearly interested in the “heat profile” not for its own sake but for what it might reveal about the activities inside the home.  In that respect, to the extent that it is in issue, the respondent maintained a subjective expectation of privacy.

42                               I should add a caveat.  The subjective expectation of privacy is important  but its absence should not be used too quickly to undermine the protection afforded by s. 8  to the values of a free and democratic society.  In an age of expanding means for snooping readily available on the retail market, ordinary people may come to fear (with or without justification) that their telephones are wiretapped or their private correspondence is being read.  One recalls the evidence at the Watergate inquiry of conspirator Gordon Liddy who testified that he regularly cranked up the volume of his portable radio to mask (or drown out) private conversations because he feared being “bugged” by unknown forces.  Whether or not he was justified in doing so, we should not wish on ourselves such an environment.  Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed.  It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it.  It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8 .  Expectation of privacy is a normative rather than a descriptive standard.

(4)   Was the Respondent’s Expectation of Privacy Objectively Reasonable?

43                               This is a major battleground in many of the s. 8  cases and a number of factors have emerged as helpful “markers”.

(a)   The Place Where the Alleged Search Occurred

44                               While s. 8 protects people, not places, the place where the search occurs greatly influences the reasonableness of the individual’s expectation.  In Wong, supra,  Lamer C.J. put it this way, at p. 62:

The nature of the place in which the surveillance occurs will always be an important factor to consider in determining whether the target has a reasonable expectation of privacy in the circumstances.  It is not, however, determinative.

45                               In this case, the image was taken of the exterior of the respondent’s home, a place which, as Abella J.A. pointed out (at para. 42), traditionally has been accorded the highest degree of privacy.  She relied, in part, on the concurring judgment of McLachlin J. in Plant, at p. 302:

The [electricity consumption] records are capable of telling much about one’s personal lifestyle, such as how many people lived in the house and what sort of activities were probably taking place there.  The records tell a story about what is happening inside a private dwelling, the most private of places.

The United States Supreme Court declared the use of FLIR technology to image the outside of a house to be unconstitutional in Kyllo v. United States, 533 U.S. 27 (2001), based largely on the “sanctity of the home” (p. 37).  We do not go so far.  The fact that it was the respondent’s home that was imaged using FLIR technology 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 by FLIR technology to the police.

(b)   Was the Subject Matter on Public View?

46                               Heat is lost from the external wall of the building and this is obvious to even the most casual observer.  Patches of snow melt at different rates on a poorly insulated roof.  In Hutchings, supra, for example, an informant in a marijuana grow-op trial testified that he saw no snow on the barn roof where there should have been some.  On the other hand, as Abella J.A. points out, at para. 65:

Without FLIR technology, however, that person cannot know that it is hotter than other houses in the area or that one room in particular reveals a very high energy consumption.

47                               Yet FLIR technology does not “see” through the wall of the building.  Indeed, it cannot even “see” through a transparent window.  It is not X-ray technology. Everything shown in the FLIR photograph exists on the external surfaces of the building and in that sense it records only information exposed to the public (albeit the public, unaided by technology, cannot in fact observe the heat pattern in the detail FLIR imaging affords). 

(c)   Had the Subject Matter Been Abandoned?

48                               There was no abandonment in any voluntary sense, as discussed.

(d)   Was the Information Already in the Possession of Third Parties?

49                               It was not available to third parties in any form visible to the naked eye that would have been of any use to the police.

(e)   Was the Police Technique Intrusive in Relation to the Privacy Interest?

50                               The lack of intrusiveness is a factor in the assessment; Wong, supra, at p. 43; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 36; Thomson Newspapers, supra, at pp. 496 (dissent) and 594 (majority); and Plant, supra, at p. 295.

51                               Of course the respondent objects to this form of state surveillance of his home.  He points out that if the Crown is correct that what was done with FLIR technology in this case is not a s. 8 search, it would follow that the police are at liberty to take “heat pictures” of homes and other shelters whenever they wish, targeting whomever they wish, without any prior judicial authorization.  This is true, but I agree with Stevens J., at p. 45, speaking for the minority in Kyllo, that

public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as excessive heat, traces of smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community.

52                               The respondent’s argument, however, is more fundamental.  The real subject matter of interest to the police is not the surface heat but the inference that can be drawn about the activity going on inside the house.  Abella J.A. held, at para. 67, that FLIR technology, albeit by the use of police inference, does intrude into the home:

. . . the measurement of heat emanations from inside a home is the measurement of inherently private activities which should not be available for state scrutiny without prior judicial authorization.

See also R. v. Dinh (2003), 16 Alta. L.R. (4th) 26, 2003 ABCA 201, at para. 33, per Conrad J.A.

53                               The marijuana grow-op itself was certainly not in public view.  Thus the debate is forced back to the same question posed at the outset: what exactly does the FLIR image tell the police about the existence of a marijuana grow-op inside the house?  The answer, as discussed, is that FLIR imaging cannot identify the source of the heat or the nature of the activity that created it.  It merely tells the police that there are heat-generating activities within the home.  (It would be strange if it were otherwise.)  The existence and distribution of heat on the external walls is consistent with a number of hypotheses including as one possibility the existence of a marijuana grow-op.  FLIR’s usefulness depends on what other information the police have.

54                               While I conceptualize the subject matter somewhat differently than Abella J.A. as externally obtained information about the home (because no “intrusion” in any meaningful sense is possible under existing FLIR technology), I agree with the concern that privacy “is closely linked to the effect that a breach of that privacy would have on the freedom and dignity of the individual”:  Schreiber v. Canada (Attorney General), [1998] 1 S.C.R. 841, at para. 19.  Similarly in Wong, supra, at p. 47, La Forest J. states that “we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy”.  I mentioned earlier Abella J.A.’s reference to George Orwell.  It is appropriate, then, to quote the words of Nineteen Eighty-Four (1949), at pp. 4-5:

There was of course no way of knowing whether you were being watched at any given moment. . . . It was even conceivable that they watched everybody all the time. . . . You had to live _ did live, from habit that became instinct _ in the assumption that every sound you made was overheard, and . . . every movement scrutinised.

55                               I agree with Abella J.A. that the spectre of the state placing our homes under technological surveillance raises extremely serious concerns. Where we differ, perhaps, is that in my view such technology must be evaluated according to its present capability.  Whatever evolution occurs in future will have to be dealt with by the courts 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.  It is clear, to repeat, that at present no warrant could ever properly be granted solely on the basis of a FLIR image.

(f)    Was the Use of Surveillance Technology Itself Objectively Unreasonable?

56                               A justified concern about the advance of surveillance technology was expressed by Abella J.A., at para. 63:

In my view, there is an important distinction between observations that are made by the naked eye or even by the use of enhanced aids, such as binoculars, which are in common use, and observations which are the product of technology.

57                               This was also a key element in the decision of the U.S. Supreme Court in Kyllo in which the majority judgment, written by Scalia J., concluded (at p. 40):

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant. [Emphasis added.]

58                               Scalia J. does not elaborate on what he means by “a device that is not in general public use” and the dissenters suggested such a standard is unworkable (Kyllo, supra, at p. 47).  On the evidence here, FLIR imaging does not disclose “details of the home”, as has already been discussed.  The terms “technology” or “a device that is not in general public use” (or Abella J.A.’s reference to “enhanced aids . . . which are in common use”, at para. 63) are vague and take in a lot of territory.  The argument, presumably, is that if an area of our lives is already exposed to surveillance by commonly available “technology” such as binoculars, we can have no reasonable continuing expectation of privacy in that respect.  This may be true, but what is the test for “general public use”?  In my view, the issue is not whether FLIR technology puts the police inside the home, because it does not, or whether FLIR is in general public use (it is not), but rather the nature and quality of the information about activities in the home that the police are able to obtain.  The evidence is that a FLIR image of heat emanations is, on its own, as Abella J.A. acknowledged, “meaningless”.  That is the bottom line.

(g)   Did the FLIR Heat Profile Expose Any Intimate Details of the Respondent’s Lifestyle or Part of His Core Biographical Data?

59                               In Plant, supra, Sopinka J. sought to calibrate a reasonable expectation of informational privacy to the purpose of s. 8 (p. 292).  In that case, the police had obtained computer records from the Calgary Utilities Commission which showed unusual electricity consumption at the home of the accused indicating the potential existence of a marijuana grow-op.  The records themselves were not obtained from the appellant.  It was held that within the commercial relationship of supplier and customer, the accused had knowingly disclosed his electricity consumption to the utility company, with no arrangement as to confidentiality.  Such records could be accessed on-line by the police, and thus no reasonable expectations of privacy existed.

60                               For ease of reference I repeat the dictum of Sopinka J., at p. 293, once again:

. . . in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature.  In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8  of the Charter  should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish  to maintain and control from dissemination to the state.  This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [Emphasis added.]

61                               On this point, as well, we part company with the U.S. Supreme Court majority in Kyllo insofar as Scalia J. declined to distinguish among types of information relating to the home.  He declares that “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes” (p. 37).  This view seems to be predicated on the “originalism” philosophy of Scalia J. for he writes (at pp. 34-35):

We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, constitutes a search _ at least where (as here) the technology in question is not in general public use.  This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted [in 1791].  On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. [Emphasis added.]

62                               For reasons already stated, I do not regard the use of current FLIR technology as the functional equivalent of placing the police inside the home.  Nor is it helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8  of the Charter  was adopted.  Having regard to its purpose, I do not accept that s. 8  is triggered by a FLIR image that discloses that heat sources of some unknown description are present inside the structure, or that the heat distribution is uneven.  Certainly FLIR imaging generates information about the home but s. 8  protects people, not places.  The information generated by FLIR imaging about the respondent does not touch on “a biographical core of personal information”, nor does it “ten[d] to reveal intimate details of [his] lifestyle” (Plant, at p. 293).  It shows that some of the activities in the house generate heat.  That is not enough to get the respondent over the constitutional threshold.

(h)   Conclusion With Respect to the Reasonable Expectation

63                               External patterns of heat distribution on the external surfaces of a house is not information in which the respondent had a reasonable expectation of privacy.  The heat distribution, as stated, offers no insight into his private life, and reveals nothing of his “biographical core of personal information”.  Its disclosure scarcely affects the “dignity, integrity and autonomy” of the person whose house is subject of the FLIR image (Plant, at p. 293).

64                               I wish to add one further observation.  In Plant, Sopinka J. listed the seriousness of the offence as a factor in the “balance” sought to be achieved in s. 8  of the Charter  (p. 295).  Undoubtedly the “seriousness of the offence” has a role to play in striking “the balance”, but I do not think that it is a factor in determining whether the respondent did or did not have a reasonable expectation of privacy in the heat distribution patterns on the outside of his house.  Rather, it may more logically arise at the stage the court considers whether a particular search was reasonable, or whether the evidence obtained by an unreasonable search may be admitted into evidence under s. 24(2)  of the Charter .

F.      If the Respondent Had a Reasonable Expectation of Privacy in this Case, Was It Violated?

65                               In light of the finding that the respondent had no reasonable expectation of privacy in the heat distribution information, this question does not arise.

IV.        Disposition

66                               I would allow the appeal and restore the conviction.

Appeal allowed.

Solicitor for the appellant:  Attorney General of Canada, Toronto.

Solicitor for the respondent:  Frank Miller, Windsor.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec:  Attorney General of Quebec, Sainte-Foy.

Solicitors for the intervener the Canadian Civil Liberties Association:  McCarthy Tétrault, Toronto.