DATE: 20030127
DOCKET: C36111
O'CONNOR A.C.J.O., ABELLA AND SHARPE JJ.A.
|
|
|||||||||||||||||||||||||||
On appeal from the conviction by Justice G. I. Thomson on December 5, 2000.
ABELLA J.A.:
[1] 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 Charter of Rights and Freedoms.
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.
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 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?
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 boundaries 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 6 months' imprisonment for possession of marijuana for the purposes of trafficking, 6 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 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.
[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, the video recordings in R. v.
Wong, [1990] 3 S.C.R. 36, and the tracking device in R. v. Wise, [1992] 1 S.C.R.
527.
[28] In Duarte, the court found 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.
[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, revealed
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:
Everyone has the right to be secure against unreasonable
search and seizure.
[36] Two inquiries are engaged by a s. 8 challenge, as articulated in R. v.
Edwards, [1996] 1 S.C.R. 128:
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 (at para. 33).
[37] Bastarache J. summarized the nature of the s. 8 inquiry in R. v. Law (2002),
208 D.L.R. (3th) 207 as follows:
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 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
(at paras. 15 and 16).
[38] In R. v. Evans, [1996] 1 S.C.R. 8, 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:
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 (at para. 11).
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
(at para. 20).
[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 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 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 (at para. 20).
[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:
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
(at para. 19).
[42] Justice McLachlin, in concurring reasons, took a different view of the
hydro information, emphasizing 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 ( at paras. 41-42).
[43] To date, few Canadian courts have dealt with the FLIR technology. In R.
v. Hutchings (1996), 111 C.C.C. (3d) 215 (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:
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 that 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 (at para. 29) [emphasis added].
[45] The United States Supreme Court, in Kyllo v. United States (2001), 121
S. Ct. 2038, 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,
house, papers and effects, against unreasonable searches and seizures, shall
not be violated, and no warrants shall issue but upon probable cause, supported
by an oath or affirmation, and particularly describing the place to be searched,
and the person 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 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., 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 (at para. 25).
[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:
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 (at
para. 18).
[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:
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 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 (at para. 19).
[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, by stating:
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 (at paras. 20-21).
[52] Writing for four dissenting judges, including Chief Justice Rehnquist,
Stevens J. minimized the intrusiveness of the technology, stating:
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 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 (at para. 28).
. . .
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 (at para. 30).
. . .
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 (at para. 31).
. . .
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" (at para 33).
. . .
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 (at para. 36).
[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.
[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, 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 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 [emphasis added]
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 (at paras.
50-53).
[57] In R. v. Lauda (1999), 136 C.C.C. (3d) 358 (Ont. 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 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:
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 (at para 16).
[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 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:
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 (at para. 8).
[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 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; R. v. Collins, [1987]
1 S.C.R. 265; Evans, supra; and R. v. Grant, [1993] 3 S.C.R. 23. 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 Section 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:
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, [1991] 1 S.C.R. 607.
[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 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.
RELEASED: "JAN 27 2003"
"DOC"
"R.S. Abella J.A."
"I agree D. O'Connor A.C.J.O."
"I agree Robert J. Sharpe J.A."