Her Majesty the Queen v. Tessling*
[Indexed as: R. v. Tessling]
63 O.R. (3d) 1
[2003] O.J. No. 186
Docket No. C36111
Cour of Appeal for Ontario
O’Connor A.C.J.O., Abella and Sharpe JJ.A.
January 27, 2003
*Application for leave to appeal to the Supreme Court of Canada granted August 28, 2003 (Iacobucci, Binnie and LeBel JJ.). S.C.C. File No. 29670. S.C.C. Bulletin, 2003, p. 1252.
Charter of Rights and Freedoms — Search and seizure — Reasonable expectation of privacy in home — Use of Forward Looking Infra-Red (“FLIR”) aerial camera technology to detect heat emanating from home — Accused charged with possession of marijuana for the purpose of trafficking — Trial judge erring in holding that use of FLIR does not constitute a search for purposes of s. 8 of Charter — Purpose of technology is to acquire information about activities within home that authorities could not learn from conventional surveillance — High expectation of privacy regarding one’s home extends to heat emanations from it and prior judicial authorization required absent exigent circumstances — Police acting in good faith and trial fairness not affected by admission of real evidence obtained using search warrant based partially on information gathered using FLIR — Marijuana at lower end of hierarchy of harmful drugs — Serious breach of accused’s s. 8 rights as violation pertaining to residential dwelling — Administration of justice enhanced by exclusion of real drug evidence — Insufficient evidence to convict remaining once drugs excluded — Appeal allowed and acquittal entered — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
Charter of Rights and Freedoms — Remedies — Search and seizure of real evidence — Reasonable expectation of privacy in home — Use of Forward Looking Infra-Red (“FLIR”) aerial camera technology to detect heat emanating from home — Accused charged with possession of marijuana for the purpose of trafficking — Trial judge erring in holding that use of FLIR does not constitute a search for purposes of s. 8 of the Charter — Purpose of technology is to acquire information about activities within home that authorities could not learn from conventional surveillance — High expectation of privacy regarding one’s home extends to heat emanations from it and prior judicial authorization required absent exigent circumstances — Police acting in good faith and trial fairness not affected by admission of real evidence obtained using search warrant based partially on information gathered using FLIR — Marijuana at lower end of hierarchy of harmful drugs — Serious breach of accused’s s. 8 rights as violation pertaining to residential dwelling — Administration of justice enhanced by exclusion of real drug evidence — Insufficient evidence to convict remaining once drugs excluded — Appeal allowed and acquittal entered — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The police received a tip from an unproven source that the accused was involved in the production and trafficking of marijuana. They ascertained that [page2] hydro usage at the property owned by the accused was normal, and visual surveillance of the residence revealed nothing that would lead to the conclusion that a marijuana grow operation was taking place there. The police used an RCMP airplane equipped with a Forward Looking Infra-Red (“FLIR”) camera to conduct a “structure profile” of the property owned by the accused. The FLIR takes a picture or image of the thermal energy or heat radiating from the exterior of a building. It can detect heat sources within a home, but it cannot identify the exact nature of that source or see inside the building. The FLIR camera in this case indicated that the accused’s property had the heat emanations potentially indicative of a marijuana grow operation. The police applied for and obtained a telewarrant, using the information provided by the unproven informant and another informant, known to the police, whose information had been less detailed, along with the results of the FLIR examination of the accused’s residence. The police found a large quantity of marijuana in the residence. The accused was charged with possession of marijuana for the purpose of trafficking and other offences. At trial, he brought an application pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude the items found at his home during the search. The trial judge found that the use of FLIR technology was not a search within the meaning of s. 8 of the Charter, that the search warrant was valid and that the search was reasonable. The accused was convicted. He appealed.
Held, the appeal should be allowed.
The privacy interest in the home extends to heat generated inside the home but reflected on the outside. The use of FLIR technology to detect heat emanations from a private home constitutes a search within the meaning of s. 8 of the Charter and, in the absence of exigent circumstances, requires prior judicial authorization. The FLIR technology reveals information about activities that are carried on inside the home. While the technology measures heat emanating from the outer walls of the house, the source of those emanations is located inside. The sole reason that police photograph the heat emanations is to attempt to determine what is happening inside the house. The 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. The use of the FLIR technology was an integral step in ascertaining what was occurring inside the accused’s home. The FLIR technology discloses more information about what goes on inside a house than is detectable by normal observation or surveillance. It would directly contradict the reasonable privacy expectations of most members of the public to permit the state, without prior judicial authorization, to use infrared aerial cameras to measure heat coming from activities inside private homes as a way of trying to figure out what is going on inside. There were no exigent circumstances in this case. In the absence of the FLIR images, there was insufficient evidence to support the issuance of a warrant. The search of the accused’s residence was unreasonable and violated his rights under s. 8 of the Charter.
The evidence which the accused sought to exclude was real evidence, and the accused was not conscripted into its creation or discovery. The admission of that evidence would not, therefore, affect trial fairness. However, the Charter violation was serious. Given the seriousness of the violation compared to the seriousness of the offence of growing marijuana which inspired the unlawful search, greater disrepute to the administration of justice would flow from the admission than from the exclusion of the evidence. [page3]
Kyllo v. United States, 121 S. Ct. 2038 (2001); R. v. Hutchings (1996), 39 C.R.R. (2d) 309, 111 C.C.C. (3d) 215 (B.C.C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 21, 44 C.R.R. (2d) 188n, 221 N.R. 159n]; R. v. Kelly (1999), 213 N.B.R. (2d) 1, 169 D.L.R. (4th) 720, 545 A.P.R. 1, 132 C.C.C. (3d) 122, 22 C.R. (5th) 248 (C.A.), affg (1998), 200 N.B.R. (2d) 1, 512 A.P.R. 1 (Q.B.); R. v. Lauda (1999), 45 O.R. (3d) 51, 65 C.R.R. (2d) 133, 136 C.C.C. (3d) 358, 25 C.R. (5th) 320 (C.A.), consd
Other cases referred to
Dow Chemical Co. v. United States, 476 U.S. 227 (1986); Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); Law v. R., 2002 SCC 10, (2002), 208 D.L.R. (4th) 207, 281 N.R. 267, 90 C.R.R. (2d) 55, 160 C.C.C. (3d) 449, 48 C.R. (5th) 199; R. v. Collins, [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Debot, [1989] 2 S.C.R. 1140, 37 O.A.C. 1, 102 N.R. 161, 45 C.R.R. 49, 52 C.C.C. (3d) 193, 73 C.R. (3d) 129; R. v. Duarte, [1990] 1 S.C.R. 30, 37 O.A.C. 322, 65 D.L.R. (4th) 240, 103 N.R. 86, 45 C.R.R. 278, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281 (sub nom. R. v. Sanelli); R. v. Edwards, [1996] 1 S.C.R. 128, 26 O.R. (3d) 736n, 132 D.L.R. (4th) 31, 192 N.R. 81, 33 C.R.R. (2d) 226, 104 C.C.C. (3d) 136, 45 C.R. (4th) 307; R. v. Evans, [1996] 1 S.C.R. 8, 131 D.L.R. (4th) 654, 191 N.R. 327, 33 C.R.R. (2d) 248, 104 C.C.C. (3d) 23, 45 C.R. (4th) 210; R. v. Grant, [1993] 3 S.C.R. 223, 159 N.R. 161, [1993] 8 W.W.R. 257, 17 C.R.R. (2d) 269, 84 C.C.C. (3d) 173, 24 C.R. (4th) 1; R. v. Kokesch, [1990] 3 S.C.R. 3, 51 B.C.L.R. (2d) 157, 121 N.R. 161, [1991] 1 W.W.R. 193, 50 C.R.R. 285, 61 C.C.C. (3d) 207, 1 C.R. (4th) 62; R. v. Plant, [1993] 3 S.C.R. 281, 12 Alta. L.R. (3d) 305, 157 N.R. 321, [1993] 8 W.W.R. 287, 17 C.R.R. (2d) 297, 84 C.C.C. (3d) 203, 24 C.R. (4th) 47; R. v. Stillman, [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1; R. v. Wise, [1992] 1 S.C.R. 527, 133 N.R. 161, 8 C.R.R. (2d) 53, 70 C.C.C. (3d) 193, 11 C.R. (4th) 253; R. v. Wong, [1990] 3 S.C.R. 36, 45 O.A.C. 250, 120 N.R. 34, 2 C.R.R. (2d) 277, 60 C.C.C. (3d) 460, 1 C.R. (4th) 1
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 8, 24(2) U.S. Const. amend. IV
APPEAL from a conviction for the possession of marijuana for the purpose of trafficking.
Frank Miller, for appellant.
J.W. Leising and M. Rahman, for respondent.
The judgment of the court was delivered by
[1] ABELLA J.A.: — The primary issue in this appeal is whether the use of a Forward Looking Infra-Red (“FLIR”) aerial camera to detect heat rays emanating from a private home, constitutes a search within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. [page4]
Background
[2] The RCMP began investigating the appellant, Walter Tessling, in February 1999. Early in the investigation, the police received information from two confidential informants, “A” and “B”.
[3] The only informant who provided any specific information about the appellant was “A”. “A” was an “unproven source”, meaning that he or she had not previously provided the police with information resulting in criminal charges. “A”‘s tip was that the appellant and a partner, Ken Illingworth, were involved in the production and trafficking of marijuana.
[4] “B” had been an informant on previous occasions and the information provided by him or her had resulted in the laying of three drug charges. “B” told police that a known drug dealer was buying large quantities of drugs from a man named “Ken” in the area in which Illingworth had a farm. “B” gave the police no information about Tessling.
[5] Based on the information provided by the informants, the police contacted Ontario Hydro to find out if there was unusual hydro usage at any of the properties owned by Tessling or Illingworth, which would be consistent with a marijuana growing operation. Ontario Hydro responded that the usage was normal. However, the police continued their investigation based on their belief that it was possible that the appellant and Illingworth were by-passing the hydro meters.
[6] Visual surveillance of Tessling’s and Illingworth’s residences revealed nothing that would lead to the conclusion that a marijuana growing operation was taking place at those locations.
[7] On April 29, 1999, the police used an RCMP airplane equipped with a FLIR camera to conduct a “structure profile” of the properties owned by Tessling and Illingworth, that is, to detect heat emanating from buildings.
[8] The FLIR takes a picture or image of the thermal energy or heat radiating from the exterior of a building. It can detect heat sources within a home depending on the location of the source, and how well the house is insulated, but it cannot identify the exact nature of that source or see inside the building.
[9] The use of the FLIR is not affected by the altitude of the aircraft from which it is operated. In the information used to obtain the search warrant, the FLIR system’s technological capacity to detect internal heat patterns is described as follows:
[FLIR technology] is currently in use by major law enforcement agencies and departments throughout Canada and the United States for various types of applications, and has grown to become a significant investigative tool for law enforcement agencies. [page5]
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.
[10] The use of FLIR technology is based on the operative theory that while heat usually emanates evenly from a building, the lights used in marijuana growing operations give off an unusual amount of heat. By comparing the pattern of heat emanating generally from a building to the heat from specific areas, the FLIR images can show patterns of heat in a building that might have a marijuana growing operation.
[11] The FLIR camera in this case indicated that the appellant’s property and one of the properties owned by Illingworth had the heat emanations potentially indicative of a marijuana growing operation. As a result, on May 5, 1999, the RCMP applied for a “telewarrant”. This request was denied.
[12] An application for a warrant before a different judge later the same day and based on modified information, was successful. The information used to obtain this warrant consisted of the information from the two confidential informants, and the results of the FLIR examination of Tessling’s home.
[13] When the RCMP entered the home, they found a large quantity of marijuana, two sets of scales, and freezer bags. They also found some weapons.
The Trial
[14] At trial, the appellant brought an application pursuant to s. 24(2) of the Charter to exclude the items found at his home during the search.
[15] The defence’s main submission on the application was that the information used to obtain the search warrant did not meet the test in R. v. Debot, [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 at para. 53, namely:
(1) Was the information predicting the commission of the criminal offence compelling?
(2) If the information was based on a tip originating from a source outside the police, was that source credible? [page6]
(3) Was the information corroborated by a police investigation prior to making the decision to conduct the search?
[16] The defence argued that the information supplied by “A” was not compelling or credible because most of the information was in the form of conclusory statements, and there was insufficient information to assess whether this information was reliable.
[17] The defence also challenged the sufficiency of the FLIR images as sufficient corroboration of A’s information. Even though six days had passed between the FLIR examination and the application for the search warrant, the police had done nothing to confirm that there was still a marijuana growing operation at the residence.
[18] Finally, the defence argued that the use of the FLIR aerial technology was an unlawful search. Since the information of “A” was unreliable, and since the police could not have obtained a warrant to search the appellant’s premises based on the information of “A” alone, the police had insufficient justification for conducting a search. This made the search warrantless and therefore unreasonable, and represented a sufficiently serious breach of the appellant’s privacy rights that the evidence resulting from it should be excluded.
[19] The Crown argued that based on the totality of the circumstances, the test in Debot was met. Although “A” was “unproven” in the sense that A’s information had not yet been used to secure a criminal conviction, “A” was in fact reliable. There was a correlation between many things “A” told the police and things learned through “B”, a proven informant. There had also been an extensive police investigation independent of what the police had learned through the informants. Combined with the information from the FLIR, there was sufficient information upon which a justice of the peace could be satisfied that there was a reasonable probability that an offence was being committed on the premises, and thus was justified in issuing a warrant.
[20] As to the FLIR technology, the Crown argued that it was a recognized and accepted police surveillance tool, not a search.
Ruling on the Charter application
[21] The trial judge agreed with the Crown that the use of FLIR technology was not a search within the meaning of s. 8 of the Charter and that, considering the totality of the circumstances, the test in Debot had been met, stating:
It is well recognized that the home should be granted the highest degree of protection from unwanted state intrusions. There is nothing wrong in police officers [placing a home under surveillance] from outside its perimeter [page7b] oundaries to determine if people come and go in such numbers as to indicate to experienced police officers that a marijuana growing and/or trafficking activity is going on inside. This is simple surveillance.
There is no doubt that the schedule could have contained more detail. The officer acted in good faith throughout. I am satisfied that cumulatively based on the totality of the circumstances in this case that the Justice of the Peace had sufficient detail to form reasonable and probable grounds that a search warrant should issue, which would have the effect of intruding on the expectation of privacy of the accused in their residence.
I have considered the tests in Debot and find that the totality of the evidence could lead the Justice of the Peace to find that the evidence predicting the commission of the criminal offence was compelling. Further, that the information from source “A” was credible and that the FLIR was confirmatory or corroborative of some marijuana growing operation in the basement of the [appellant’s residence].
There was little possibility of an innocent coincidence, even though there may have been several other explanations for the excessive heat in the basement like a furnace close to a window, a sauna, a hot tub or insufficient insulation.
I find that FLIR technology, if properly used in a valid search warrant, does not constitute an unwarranted transgression or intrusion into the reasonably expected privacy of an occupant of a residence.
The warrant, in this case, was valid and the search thereunder was reasonable.
[22] In the alternative, the trial judge concluded that had there been a breach of s. 8, he would not have excluded the evidence under s. 24(2) for the following reasons:
There was no question that the police officers acted in bad faith. They felt that they were using a lawful technique and were acting in accordance with a lawfully issued search warrant.
. . . . .
I find that the admission into evidence of the items would not result in an unfair trial. Any breach would be serious as it concerned a private residence. However, to exclude the admissibility of the items would bring the administration of justice into disrepute.
[23] Since the evidence was not excluded, Tessling admitted the balance of the elements of the drug and weapons offences with which he was charged, except for the trafficking offence. A trial proceeded on the trafficking charge alone, and Tessling was convicted. He was sentenced to six months’ imprisonment for possession of marijuana for the purposes of trafficking, six months concurrent for related drug offences, and a total of 12 months for the weapons offences.
Analysis
[24] At the trial of Ken Illingworth, which took place after Tessling’s trial, the trial judge quashed the warrant based on the [page8] insufficiency of the evidence. The appellant sought to introduce testimony from the Illingworth trial as fresh evidence on this appeal. Given the following conclusions, it is unnecessary to deal with this motion.
[25] The focus of this appeal was on whether the use of the FLIR device constituted an unreasonable search within the meaning of s. 8 of the Charter of Rights and Freedoms. If so, the Crown concedes that in the absence of the FLIR images, there was insufficient evidence to support the issuance of a warrant.
[26] The appellant’s main submission was that to the extent that FLIR technology is used to provide state agents with information which could not otherwise be obtained without an intrusion into the home, the examination is a search within the meaning of s. 8 of the Charter. Because the information was used to identify activities in his home, Tessling argued that the search violated his reasonably held expectations of privacy. Since it was warrantless, with no other reliable information to support a warrant and no exigent circumstances, the search was an unreasonable one: see R. v. Kokesch, [1990] 3 S.C.R. 3, 61 C.C.C. (3d) 207.
[27] The appellant submits that the appropriate jurisprudential analogies for the FLIR technology can be found in the surreptitious audio-visual recordings at issue in R. v. Duarte, [1990] 1 S.C.R. 30, 53 C.C.C. (3d) 1, the video recordings in R. v. Wong, [1990] 3 S.C.R. 36, 60 C.C.C. (3d) 460, and the tracking device in R. v. Wise, [1992] 1 S.C.R. 527, 70 C.C.C. (3d) 193.
[28] In Duarte, the court found [at p. 32 S.C.R.] that, as a general proposition, “surreptitious electronic surveillance of an individual by an agency of the state constitutes an unreasonable search or seizure under s. 8”, and requires prior judicial authorization in the form of a warrant.
[29] The court made similar findings in Wong, where it held that individuals in a hotel room have a reasonable expectation of privacy.
[30] In Wise, the court found a violation of s. 8 when a tracking device placed on someone’s car allowed the state to “electronically track” an individual (p. 529 S.C.R.).
[31] The Crown had two main submissions in this appeal. Firstly, a FLIR aerial examination comes within the meaning of what has traditionally been construed as surveillance and not a search, and the use of technology does not elevate such surveillance into a search. Secondly, the heat emanations from a residence do not reveal any intimate details about the activities within the home, and so the privacy interest, if any, is trivial. It argued that heat emanations, like the electricity consumption in R. v. Plant, [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203, revealed [page9] very little about the “personal lifestyle or private decisions” of the appellant.
[32] Furthermore, the Crown contends that there is no reasonable expectation of privacy in the heat emanating from the surface of a residence, since people do not generally take steps to mask the visible signs of heat emanations, such as snow melting on a roof, or steam or frost residue on windows. Even if there were some privacy interest in the heat emanations and what might be inferred from them, that privacy interest does not outweigh the compelling state interest in preventing marijuana growing.
Was there a violation of s. 8?
[33] The home is an environment whose privacy has consistently and insistently been designated by the courts as worthy of the state’s highest respect. The question in this case, however, is whether the privacy interest in the home extends to heat generated inside the home but reflected on the outside.
[34] In my view, for the reasons which follow, the use of FLIR technology to detect heat emanations from a private home constitutes a search and requires, absent exigent circumstances, prior judicial authorization.
[35] Section 8 of the Charter states:
8. Everyone has the right to be secure against unreasonable search or seizure.
[36] Two inquiries are engaged by a s. 8 challenge, as articulated in R. v. Edwards, [1996] 1 S.C.R. 128, 132 D.L.R. (4th) 31 [at para. 33]:
The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy.
[37] Bastarache J. summarized the nature of the s. 8 inquiry in Law v. R., 2002 SCC 10, 208 D.L.R. (4th) 207 as follows [at paras. 15-16]:
It has long been held that the principal purpose of s. 8 of the Charter is to protect an accused’s privacy interests against unreasonable intrusion by the State. Accordingly, police conduct interfering with a reasonable expectation of privacy is said to constitute a “search” within the meaning of the provision.
This Court has adopted a liberal approach to the protection of privacy. This protection extends not only to our homes and intimately personal items, but to information which we choose, in this case by locking it in a safe, to keep confidential . . . As a 1972 task force on privacy and computers noted, informational privacy “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or [page10 ]retain . . . as he sees fit”: Privacy and Computers, Report of the Task Force Established Jointly by the Department of Communications/Department of Justice (1972), at p. 13 . . .
[38] In R. v. Evans, [1996] 1 S.C.R. 8, 131 D.L.R. (4th) 654, Sopinka J. defined a search for the purposes of s. 8, and concluded that the conduct of the police approaching the door to someone’s home with the intention of sniffing for marijuana when the occupants opened the door, was a search within the meaning of s. 8 of the Charter. His rationale was the following [at paras. 11 and 20]:
As this court stated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the objective of s. 8 of the Charter is “to protect individuals from unjustified state intrusions upon their privacy”. Clearly, it is only where a person’s reasonable expectations of privacy are somehow diminished by an investigatory technique that s. 8 of the Charter comes into play. As a result, 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.
. . . . .
In my view, there are sound policy reasons for holding that the intention of the police in approaching an individual’s dwelling is relevant in determining whether or not the activity in question is a “search” within the meaning of s. 8. If the position of my colleague is accepted and intention is not a relevant factor, the police would then be authorized to rely on the “implied licence to knock” for the purpose of randomly checking homes for evidence of criminal activity. The police could enter a neighbourhood with a high incidence of crime and conduct surprise “spot checks” of the private homes of unsuspecting citizens, surreptitiously relying on the implied licence to approach the door and knock. Clearly, this Orwellian vision of police authority is beyond the pale of any “implied invitation”. As a result, I would hold that in cases such as this one, where evidence clearly establishes that the police have specifically adverted to the possibility of securing evidence against the accused through “knocking on the door”, the police have exceeded the authority conferred by the implied licence to knock.
[39] Writing for himself, Cory and Iacobucci JJ., Sopinka J., when listing what he considered to be examples of lawful investigatory techniques, notably included “overhead infrared photography” (at para. 29).
[40] In Plant, supra, Sopinka J. concluded, for the majority, that there was no reasonable expectation of privacy in utility records held by a utility company. He gave the following further direction [at para. 20] about what constitutes “privacy”:
. . . [I]n 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 [page11 ]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. The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant’s life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence.
[41] It is significant that the focus of the analysis in Plant was not on whether there is a privacy interest in home energy consumption, but on whether one has a reasonable expectation of privacy in records held by third parties. The court focused on the commercial relationship between the utility company and the accused as a utility user, concluding that the information available in the records was subject to inspection by members of the public at large. This supported the finding that the accused did not have a reasonable expectation of privacy in the records. Sopinka J. outlined the requisite balancing analysis as follows [at para. 19]:
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 allow for a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement.
[42] Justice McLachlin, in concurring reasons, took a different view of the hydro information, emphasizing [at paras. 41-42] its ability to reveal what activities are taking place inside the home:
The question in each case is whether the evidence discloses a reasonable expectation that the information will be kept in confidence and restricted to the purposes for which it was given. Although I find the case of electricity consumption records close to the line, I have concluded that the evidence here discloses a sufficient expectation of privacy to require the police obtain a warrant before eliciting the information. I conclude that the information was not public, since there is no evidence suggesting this information was available to the public and the police obtained access only by reason of a special arrangement. The 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 very reason the police wanted these records was to learn about the appellant’s personal lifestyle, i.e. the fact that he was growing marihuana. More generally, electricity consumption records may, as already noted, reveal how many people live in a house and much about what they do. While not as revealing as many types of records, they can disclose important personal information. [page12]
[43] To date, few Canadian courts have dealt with the FLIR technology. In R. v. Hutchings (1996), 111 C.C.C. (3d) 215, 39 C.R.R. (2d) 309 (B.C.C.A.), leave to appeal refused [1997] S.C.C.A. No. 21, the British Columbia Court of Appeal explicitly declined to address the issue whether using a FLIR device generally constitutes a search. It held that a warrantless search of an abandoned barn using a FLIR device did not violate s. 8 of the Charter. The police had learned from a confidential informant of unknown reliability, that a marijuana growing operation might be located in a barn. An aerial FLIR examination revealed an abnormal amount of heat emanating from the barn’s roof. After further investigation of the appellant’s hydro records, the police charged him with trafficking. He challenged the admissibility of the evidence against him on the basis that the FLIR technology was unconstitutional.
[44] The court found that while the appellant had keys to the barn, he was not the owner of the property and there was no evidence that he lived in the nearby house, registered in his sister’s name. He was therefore found to have no reasonable expectation of privacy in heat emanations from the barn. As McEachern C.J.B.C. stated [at para. 29]:
However, I do not consider it necessary to pronounce generally upon the use of such a device in the circumstances of this case because I do not believe the appellant had any reasonable expectation of privacy regarding the escape of heat from this barn. No “private”, “personal” or “core biographical information” was at risk or obtained. It might of course be different if the FLIR device could extend the operator’s sight or hearing into a residence or other private place, as to which see R. v. Duarte . . . But that is not this case and I do not think that the appellant should reasonably be surprised by observations, even enhanced observations, directed to the outside or roof of a barn.
(Emphasis added)
[45] The United States Supreme Court, in Kyllo v. United States, 121 S. Ct. 2038 (2001), found that the warrantless use of FLIR technology was an unlawful search constituting a violation of the Fourth Amendment, which states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[46] Based in part on thermal imaging, a judge had issued a warrant to search Kyllo’s home, where agents subsequently found a marijuana growing operation. Kyllo unsuccessfully moved to suppress the evidence seized from his home, and then entered a conditional guilty plea. The Ninth Circuit Appeals [page13] Court affirmed the trial judge’s ruling, holding that thermal imaging was constitutional, on the ground that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home. Even if he had, ruled the court, he had no objectively reasonable expectation of privacy because there were no details of Kyllo’s life gained from the thermal imaging, only amorphous hot spots on his home’s exterior.
[47] A majority of the U.S. Supreme Court overturned the decision, holding instead, per Scalia J. [at para. 25], that:
Where, as here, the Government uses a device that is not in general public use, to explore the details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment “search” and is presumptively unreasonable without a warrant.
[48] Scalia J. recognized, at para. 14, that warrantless visual surveillance of a home is constitutional in the United States and that “Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” He noted that a search does not occur even when the explicitly protected location of a house is concerned, unless an individual has a subjective expectation of privacy which society is willing to recognize as reasonable.
[49] Nevertheless, Scalia J. found, at para. 16, that thermal imaging “involves officers on a public street engaged in more than naked-eye surveillance of a home”. Emphasizing the importance of Fourth Amendment protections for people’s homes, he stated [at para. 18]:
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”, . . . [citations excluded] constitutes a search — at least where (as here) the technology in question is not in general public use.
[50] He rejected the government’s argument that the thermal imaging was constitutional because it “detected only heat radiating from the external surface of the house” (at para. 6), and that there was a “fundamental difference between what it referred to as ‘off-the-wall’ observations and ‘through-the- wall surveillance'” as follows [at para. 19]:
But just as a thermal imager captures only heat emanating from a house, so also a powerful directional microphone picks up only sound emanating from a house — and a satellite capable of scanning from many miles away would pick up only visible light emanating from a house. We rejected such a mechanical interpretation of the Fourth Amendment in Katz, where the eavesdropping device picked up only sound waves that reached the exterior [page14] of the phone booth. Reversing that approach would leave the homeowner at the mercy of advancing technology — including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.
[51] Scalia J. also rejected the government’s arguments that thermal imaging was constitutional because it did not “detect private activities occurring in private areas”, and because the court had previously upheld the constitutionality of enhanced aerial photography of an industrial complex in Dow Chemical Co. v. United States, 476 U.S. 227 (1986), by stating [at paras. 20-21]:
Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of the information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch” was too much [citations excluded] . . . and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the non-intimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes . . . These were intimate details because they were details of the home, just as the detail of how warm — or even how relatively warm — Kyllo was heating his residence.
Limiting the prohibition of thermal imaging to “intimate details” would not only be wrong in principle, it would be impractical in application, failing to provide a “workable accommodation between the needs of law enforcement and the interests protected by the Fourth Amendment”. . . . To begin with there is no necessary connection between the sophistication of the surveillance equipment and the “intimacy” of the details it observes — which means that one cannot say (and the police cannot be assured) that the use of the relatively crude equipment at issue here will always be lawful. The Agema Thermovision 210 might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath — a detail that many would consider “intimate”; and a much more sophisticated system might detect nothing more intimate than the fact that someone left a closet light on. We could not, in other words, develop a rule approving only that through-the-wall surveillance which identifies objects no smaller than 36 by 36 inches, but would have to develop a jurisprudence specifying which home activities are “intimate” and which are not. And when (if ever) that jurisprudence were fully developed, no police officer would be able to know in advance whether his through- the-wall surveillance picks up intimate details — and thus would be unable to know in advance whether it is constitutional.
[52] Writing for four dissenting judges, including Chief Justice Rehnquist, Stevens J. minimized the intrusiveness of the technology, stating [at paras. 28, 30, 31, 33 and 36]:
There is, in my judgment, a distinction of constitutional magnitude between “through-the-wall surveillance” that gives the observer or listener direct access to information in a private area on one hand, and the thought [page15] processes used to draw inferences from information in the public domain, on the other hand. The Court has crafted a rule that purports to deal with direct observations of the inside of the home, but the case before us merely involves indirect deductions from “off-the-wall” surveillance, that is observations of the exterior of the home. Those observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of the petitioner’s home but did not invade any constitutionally protected interest in privacy.
. . . . .
While the Court “take[s] the long view” and decides this case based largely on the potential of yet-to-be-developed technology that might allow “through-the-wall” surveillance
. . . this case involves nothing more than off-the-wall surveillance by law enforcement officers to gather information exposed to the general public from the outside of the petitioner’s home. All that the infrared camera did in this case was passively measure heat emitted from the exterior surfaces of the petitioner’s home; all that those measurements showed were relative differences in emission levels, vaguely indicating that some areas of the roof and outside walls were warmer than others.
. . . . .
Indeed the ordinary use of the senses might enable a neighbour or passer-by to notice the heat emanating from a building, particularly if it is vented as was the case here. Additionally, any member of the public might notice that some part of a house is warmer than another part or a nearby building if, for example, rainwater evaporates or snow melts at different rates across its surfaces . . . Nor, in my view, does such observation become an unreasonable search if made from a distance with the aid of a device that merely discloses that the exterior of one house, or one area of the house, is much warmer than another. Nothing more occurred in this case.
. . . . .
To be sure, the homeowner has a reasonable expectation of privacy concerning what takes place within the home, and the Fourth Amendment’s protection against physical invasions of the home should apply to their functional equivalent. But the equipment in this case did not penetrate the walls of the petitioner’s home, and while it did pick up “details of the home” that were exposed to the public . . . it did not obtain “any information regarding the interior of the home”.
. . . . .
Since what was involved in this case was nothing more than drawing inferences from off-the-wall surveillance, rather than any through-the-wall surveillance, the officers’ conduct did not amount to a search and was perfectly reasonable.
[53] Stevens J. was also of the view that no new rule was needed to decide this case, since under Fourth Amendment principles searches and seizures inside a home without a warrant are presumptively unreasonable and searches and seizures of property in plain view are presumptively reasonable. [page16]
[54] Although they do not deal with FLIR technology, two Canadian appellate court decisions point out that what constitutes an “unreasonable search” may involve a more textured analysis than simply asking whether the information in issue was accessible to public view.
[55] In R. v. Kelly (1999), 169 D.L.R. (4th) 720, 132 C.C.C. (3d) 122, the New Brunswick Court of Appeal found that low level aerial surveillance of the accused’s residential lot was an unreasonable search. No FLIR camera was used. The police had used a helicopter hovering about 30 feet over the accused’s garden to determine that he was growing plants which appeared to be marijuana. The garden was shielded from public view by other vegetation. The police subsequently conducted a ground search of the area around the accused’s house and seized marijuana plants. The issue was whether the warrantless aerial inspection was an unreasonable search.
[56] In concluding that s. 8 protects against aerial searches, the court noted [at paras. 50-52] that the requirement of a warrant would not unduly hamper law enforcement:
As a rule, lawful occupants have an expectation of privacy in all open spaces within their residential lots that is qualitatively sufficient to invest them with s. 8 protection against unlawful aerial as well as terrestrial searches.
I am convinced that the recognition of such an expectation of privacy will not unduly hamper law enforcement. It is trite that unlawful searches of private property are not essential to effective law enforcement and that the police have at their disposal a variety of lawful means to efficiently counter marijuana production on residential properties. The delays in obtaining search warrants are minimal. As well, exigent circumstances may dispense with the need for a warrant altogether . . .
Mr. Kelly owned and lived on the property searched from the air. His possession and control was such that he could regulate access to the property. Mr. Kelly definitely had a subjective expectation of privacy with respect to his relatively small residential lot. The remote location of this residential lot and the density of the woods surrounding it merely emphasize the point. Bearing in mind that s. 8 must be broadly and liberally construed, I am satisfied that Mr. Kelly’s subjective expectation of privacy is objectively reasonable and that it deserves constitutional protection, not only against unreasonable ground searches but against aerial searches as well.
[57] In R. v. Lauda (1999), 45 O.R. (3d) 51, 136 C.C.C. (3d) 358 (C.A.), the police received an anonymous tip that marijuana was being grown in a cornfield. A police officer went to the location to verify the tip. Because a four-foot-high steel gate barred his entry to a dirt road leading to the property and he could see no cornfield, the officer climbed over the gate and walked up a hill. As he proceeded over the crest of the hill, he saw a cornfield surrounded by a fence. Upon entering the cornfield, he found marijuana [page17] plants hidden by the corn. The next day, two other officers went to the cornfield to remove the plants. The officers did not have a warrant on either visit. The accused was charged with producing marijuana and possession for the purpose of trafficking. The Crown argued, based on the American “open fields” doctrine, that the usual rules regarding search and seizure did not apply.
[58] After a thorough discussion of the doctrine, Moldaver J.A., for the court, concluded [at p. 71 O.R., para. 16]:
Having considered both sides of the argument, I am of the view that the open fields doctrine cannot survive s. 8 Charter scrutiny. To be specific, I am unprepared to interpret s. 8 of the Charter in a manner which would, without exception, foreclose property holders from asserting an expectation of privacy in unoccupied lands on the basis that society does not recognize the expectation as reasonable.
[59] Moldaver J.A. noted that persons in lawful possession of unoccupied lands in Canada have the right to exclude members of the public from their property, and that an expectation of privacy which society is prepared to recognize as reasonable, can exist even if the property is visible to the public.
[60] I turn then to the use of FLIR technology in this case. There can be no question that the appellant had a reasonable expectation of privacy in activities carried on within his residence. The central issue in this appeal is whether the use of FLIR technology constitutes an unreasonable intrusion into that privacy interest. In my view, it does for the following reasons.
[61] First, the FLIR technology reveals information about activities that are carried on inside the home. While the technology measures heat emanating from the outer walls of the house, the source of those emanations is located inside. Moreover, the sole reason that police photograph the heat emanations is to attempt to determine what is happening inside the house. The 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. The use of the FLIR technology was an integral step in ascertaining what was occurring inside the appellant’s home.
[62] The analysis in Evans, supra, where the Supreme Court found that a search had taken place, is helpful. Both the heat rays in this case and the scent of marijuana in Evans emanated from the house. While I accept that technically what is being scrutinized is heat from the surface of a home, it is impossible to ignore the fact that those surface emanations have a direct relationship to what is taking place inside the home.
[63] Secondly, I am satisfied that the FLIR technology discloses more information about what goes on inside a house than is [page18] detectable by normal observation or surveillance. 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.
[64] In Wong, supra, the Supreme Court was alert to the intrusive capacity of technological surveillance and consequently cautioned [at para. 8]:
In Duarte, 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.
[65] In any event, I do not share the Crown’s view that the FLIR reveals information that is in plain view and easily observable. A member of the public can walk by a house and observe the snow melting on the roof, or look at the house with binoculars, or see steam rising from the vents. 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. FLIR technology, in other words, goes beyond observation, disclosing information that would not otherwise be available and tracking the external reflections of what is happening internally.
[66] It is, it seems to me, overly simplistic to characterize the constitutional issue in this case as whether there is a reasonable expectation of privacy in heat emanating from a home. The surface emanations are, on their own, meaningless. But to treat them as having no relationship to what is taking place inside the home, is to ignore the stated purpose of their being photographed, that is, to attempt to determine what is happening inside that home. It would, I think, directly contradict the reasonable privacy expectations of most members of the public to permit the state, without prior judicial authorization, to use infrared aerial cameras to measure heat coming from activities inside private homes as a way of trying to figure out what is going on inside.
[67] An individual’s expectation that the state will respect the privacy of information about activities in his or her home, is a manifestly reasonable one. Unlike Plant, where the information sought by the state is already known and in the hands of a third party, namely the utility company, this is information unknowable without the FLIR technology. Like the interests protected in Duarte and [page19] Wong, 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.
[68] 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.
[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. It seems to me, therefore, that before the state is permitted to use technology that has the capacity for generating information which permits public inferences to be drawn about private activities carried on in a home, it should be required to obtain judicial authorization to ensure that the intrusion is warranted.
[70] This is not to suggest that the FLIR’s electronic surveillance technology cannot be used for the enforcement of marijuana offences, only that its use, except in urgent circumstances, be predicated on prior judicial authorization to protect individuals from unwarranted state intrusion on their reasonably held expectations of privacy.
[71] Having concluded that the appellant had a reasonable expectation of privacy in the heat emanating from activities inside his home, the next issue is whether the search was an unreasonable intrusion on the right to privacy. The law is clear that warrantless searches are presumptively unreasonable, absent exigent circumstances (Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641; R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1; Evans, supra; and R. v. Grant, [1993] 3 S.C.R. 223, 84 C.C.C. (3d) 173. There were no such circumstances in this case and no other evidence sufficient to rebut the presumption of unreasonableness.
[72] Accordingly, I am satisfied that the use of the FLIR technology to detect heat emanating from the appellant’s home was a breach of his rights under s. 8 of the Charter, and the search warrant obtained on the basis of that information was therefore not lawfully obtained. Should the evidence be excluded under s. 24(2)?
[73] The remaining issue is whether the evidence obtained pursuant to the unlawful search should be excluded pursuant to s. 24(2) of the Charter, which states: [page20] 24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[74] The test for exclusion involves a consideration of the fairness of the trial, the seriousness of the violation, and the effect of excluding the evidence on the administration of justice: see R. v. Collins, supra.
[75] I agree with the trial judge that there is no issue of trial fairness in this case. The evidence which the appellant seeks to have excluded is real evidence and he was not conscripted into either its creation or discovery: see R. v. Stillman, [1997] 1 S.C.R. 607, 144 D.L.R. (4th) 193.
[76] In my view, as the trial judge acknowledged, the breach of the appellant’s s. 8 rights must be considered a serious breach. This was state intrusion into a most protected physical zone of privacy — the home. It can hardly be disputed that technologically enhanced forms of police surveillance expand the state’s intrusive capacity and therefore create a qualitatively more significant threat to privacy than surveillance unaided by electronic devices. There is, it seems to me, a critical difference between the surveillance possible without this technology and what is possible with it.
[77] In reaching the conclusion that the breach is serious, I do not impute bad faith to the police. The law on FLIR technology in this country is embryonic, with both a Supreme Court of Canada reference in Evans, albeit fleeting and in obiter, and an appellate court in Hutchings, supra, appearing to cast no doubt on its legality. But Evans did not deal directly with its constitutionality and Hutchings, which did, was carefully crafted to limit its application to the facts of that case, namely the search of a barn, not a home.
[78] As to the suggestion that the information gleaned is limited to heat emanations, causing no more than a technical breach, I would counter that this characterization of the FLIR’s capacity is overly technical. It is true that on the continuum of intrusiveness, the FLIR device is less informative than other means of electronic surveillance such as wiretapping. Nonetheless, because it provides to state agents information about activities in the home which could not otherwise be obtained without intrusion, the breach is serious.
[79] The heat emanations measured by the FLIR are not visible to the ordinary viewer and cannot be quantified without the technology. The nature of the intrusiveness is subtle but almost [page21] Orwellian in its theoretical capacity. Because the FLIR’s sensor cannot penetrate walls, it is true that a clear image of what actually transpires inside the home is not made available by the FLIR device. However, it is not the clarity or precision of the image which dictates the potency of the intrusiveness: rather, it is the capacity to obtain information and draw public inferences about private activities originating inside the home based on the heat patterns they externally generate, that renders the breach serious.
[80] I turn then to the effect on the administration of justice of either admitting or excluding the marijuana evidence obtained from the search of the appellant’s home. The exercise, in this case, distils into a balancing of the seriousness of the breach with the seriousness of the offence being investigated. In balancing the competing interests, I am of the view that given the seriousness of the violation compared to the seriousness of the offence of marijuana growing which inspired the unlawful search, greater disrepute to the administration of justice would flow from the admissibility than the exclusion of the evidence.
[81] I acknowledge that in 1993, the Supreme Court of Canada in Plant observed that preventing marijuana growing was a compelling state interest. It is impossible to ignore, however, that since that decision, there has been public, judicial, and political recognition that marijuana is at the lower end of the hierarchy of harmful drugs. This means that in the speculative judicial balancing exercise inherent in determining how best to protect public confidence in the administration of justice under s. 24(2), the weight of this offence is lighter on the scales than other drug-related offences.
[82] The breach of an individual’s right to privacy in his or her home, on the other hand, can only be characterized as serious. As between the right of an individual to be assured of protection from the state’s unwarranted invasion of privacy in the home, and the state’s right to intrude on that privacy to catch marijuana growers, I see public confidence being enhanced more by excluding, rather than admitting, the marijuana evidence in issue.
[83] The Crown did not make any submissions to suggest that the evidence relating to the weapons charges should be treated differently from the marijuana-related evidence. Without the evidence seized from the appellant’s residence, the Crown has no admissible evidence to support any of the charges. I would therefore allow the appeal, set the convictions aside, and enter verdicts of acquittal.
Appeal allowed. [page22]