Volume II

Issue : 3: February 5, 2004

• U.S. National Cable Association Proposes Limited VoIP Regulation
• The VoIP Regulatory Debate Intensifies in Canada - TRAI Amends its Quality of Service Regulations for VoIP Long Distance Service in India
• Minnesota Judge Refuses to Reserve VoIP Decision - Panama Introduces Tax on VoIP
• Lawsuit Launched Against Credit Card Companies over Piracy of Internet Pornography
• U.S. Telemarketers Required to Identify Themselves to Consumers by Caller ID
• Federal, British Columbia and Alberta Privacy Commissioners Agree to Cooperate
• FTC Releases Report on 2003 Consumer Fraud and Identity Theft Complaints
• B.C. Court Rules Forward Looking Infra-Red Technology Does Not Constitute a Search
• RIAA Targets Individuals on Anonymous Basis - Australia Music Industry Sues ISP
• France Gets Ready to Take Action against Internet Piracy
• Canadian Company to Offer High-speed Internet Access Via Hydro Lines
• U.S. Court of Appeals Finds Formation of On-line Contract Does Not Require "I Agree"
• Ontario Court Asserts Jurisdiction Over Washington Post Based on Online Publication

Home > Volume II > Issue 3: February 5, 2004 > B.C. Court Rules Forward Looking Infra-Red Technology Does Not Constitute a Search

B.C. Court Rules Forward Looking Infra-Red Technology Does Not Constitute a Search

Ruling on a voir dire (hearing on the admissibility of evidence), Higinbotham J. of the Provincial Court of British Columbia recently held in the case of R. v. Rugg that the use of Forward Looking Infra-Red ("FLIR") technology to determine the heat signature of a private home did not constitute a search within the meaning of Section 8 of the Charter of Rights and Freedoms (the "Charter"). In Rugg, the police had searched the home of the accused and discovered a marijuana cultivation operation pursuant to a warrant obtained in part through the use of an FLIR device. When used to scan the home of the accused, the FLIR device had yielded a heat signature consistent with such a marijuana cultivation operation.

In reaching the conclusion that the use of the FLIR device was not a search within Section 8 of the Charter, Higinbotham J. stated that residents do not have a reasonable expectation of privacy as to the amount of heat emanating from their homes.

It is important to contrast the decision of Higinbotham J. with an earlier decision of the Ontario Court of Appeal in R. v. Tessling, where it was held that the use of an FLIR device does constitute a search within the meaning of Section 8 of the Charter. In that case, Abella J.A. noted that FLIR technology indirectly reveals information about activities that are carried on inside the home and discloses more information than is detectable by normal observation or surveillance.

For a copy of the decision in R v. Rugg, visit:
http://www.provincialcourt.bc.ca/judgments/pc/2003/04/p03%5F0444.htm
For a copy of the decision in R v. Tessling, visit:
http://www.ontariocourts.on.ca/decisions/2003/january/tesslingC36111.pdf