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R v Tessling, 2004 SCC 67, [2004] 3 SCR 432 (Link)


Police had received information from 2 informants. Visual surveillance of the suspect's building revealed nothing to indicate that they were growing marijuana. Police used a thermal imaging device to take a ‘heat’ picture of the respondent's home from above (using a Forward Looking Infrared Radiometer, or FLIR). FLIR cannot see through the external surfaces of a building. The police did not obtain a search warrant before they used the FLIR. Use of the device indicate an elevated degree of heat emanating from the respondent's building. This and other evidence caused the police to infer that the respondent was growing marijuana. The police were able to obtain a warrant to search the home, and they found large quantities of marijuana.

The respondent argued that the use of the FLIR constituted a search of his home, in violation of s.8 of the Charter of Rights and Freedoms. Section 8 states: "Everyone has the right to be secure against unreasonable search or seizure."


Did the use of the FLIR without a warrant violate the rights of the respondent under s.8 of the Charter of Rights and Freedoms?


The use of a FLIR device by the police does not constitute a violation of rights under s.8.

Section 8 of the Charter of Rights and Freedoms protects a person's reasonable expectation of privacy.
** For something to be private in the realm of s.8, one must have a reasonable expectation of privacy; and if that expectation is violated by police, it could be in violation of s.8


Privacy interests protected by s.8:
** Personal privacy – strongest claim (protects bodily integrity -- strip searches, DNA warrants, etc.)
** Territorial privacy (protects home, in diluted measure one has the expectation in the perimeter around home, commercial spaces, private cars, schools, and in prison)
** Informational privacy (this is at issue in this case)
***How much information about ourselves can we keep private?

Was the expectation reasonable? Consider:
** The place where the alleged search occurred
** Whether the subject matter was in public view
** Whether the subject matter had been abandoned
** Whether the information was already in the hands of a 3rd party, if so was it subject to confidentiality?
** Whether the police technique was intrusive to the privacy interest
** Whether the use of the surveillance technology was itself objectively unreasonable


Found in favour of the Crown.


  1. above the law 4

    A signifant case in Canadian privacy law. Thanks for the brief.

  2. eharding 2

    No problem!

  3. TSkanes 1

    Is there something more to be said about informational privacy here?

  4. Fiat Justitia Ruat Caelum 32

    see R v Patrick, TSkanes

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