R. v. Tessling

[2004] 3 S.C.R. 432

Using an airplane with a Forward Looking Infra-Red (FLIR) camera flying over properties owned by the accused, police determined that activities within the accused’s home were causing large amounts of heat to emanate from the building’s exterior. The FLIR imaging was not capable of indicating the nature of the heat source of otherwise penetrate the exterior of the building. Based on these images and information from informants, police obtained a search warrant for the home, where they seized marijuana and several guns. The accused challenged admission of the evidence, arguing that the FLIR imaging violated his s.8 Charter rights against unreasonable search and seizure. The trial judge rejected his arguments but was overturned on appeal, with the Court of Appeal finding that the FLIR imaging amounted to an unwarranted search of the accused’s home.

The Supreme Court allowed the appeal, finding that the accused had no reasonable expectation of privacy in information about heat emanating from the exterior of his home. This finding depended in large part on the characterization of a search not as a search of the accused’s home but as external surveillance to obtain information that might or might not have been capable of producing inferences about the activities taking place within. The only information revealed by the FLIR imaging was that undetermined activities inside the home generated heat. As the information was gathered from the exposed, external surfaces of the home and revealed no sensitive biographical data, the FLIR imaging did not infringe the accused’s s.8 Charter rights.

SCC Reasons for Judgment

Faculty of Law Research and Commentary discussing R v. Tessling

Lisa M. Austin, “Getting past privacy? Surveillance, the Charter and the rule of law,” (2012) 27 No 3 Can J L & Soc’y 381.


Date Document
2003 / 12 / 16 Appellant – Her Majesty the Queen, Part I, Part II
2004 / 02 / 09 Respondent – Walter Tessling
2004 / 03 / 23 Intervener – Attorney General of Quebec
2004 / 03 / 24 Intervener – Canadian Civil Liberties Association
2004 / 03 / 26 Intervener – Attorney General of Ontario