R. v. Tessling [Indexed as: R. v. Tessling]

75 O.R. (3d) 480

Court of Appeal for Ontario

McLachlin C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ

October 29, 2004

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 [page481] 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).

James W. Leising and Morris Pistyner, for appellant. Frank Miller and A. Thomas Costaris, for respondent. Scott C. Hutchison, for intervenor the Attorney General of Ontario. Dominique Jobin and Gilles Laporte, for intervenor the Attorney General of Québec. Peter M. Brauti, Sara J. Erskine and Brian G. Wasyliw, for intervenor the Canadian Civil Liberties Association.

NOTE: The catchlines above relate to a decision of the Court of Appeal for Ontario (O'Connor A.C.J.O., Abella and Sharpe JJ.A.), reported at 2003 ONCA 8861, 63 O.R. (3d) 1. An appeal of this judgment to the Supreme Court of Canada (McLachlin C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.) was allowed on October 29, 2004 ([2004] S.C.J. No. 63, 2004 SCC 67). [page482]