R. v. HOANG, 2024 ONCA 361, MAY 7, 2024.
FACTS: The accused was convicted of drug related offences. At his trial, the Crown presented evidence that was obtained, in part, from the police mounted camera the police “placed outside of the appellant’s home. Between July 9-17, 2018, the pole camera recorded the front area of the home, capturing the movement of people and vehicles in and out of the home and any activities taking place in front of the home. Investigators were also on site from time to time surveilling the home and following vehicles that left the home”.
The accused appealed from conviction, arguing that the recording violated section 8 of the Charter and the evidence obtained should have been excluded.
HELD: The appeal was dismissed. The Ontario Court of Appeal concluded that the judge did not err in concluding that the accused did not have a reasonable expectation of privacy and thus no violation of section 8 occurred (at paragraphs 46 and 47):
As a general proposition, it may well be that pole camera surveillance could give rise to an objective expectation of privacy over the subject matter of the recording within the s. 8 Charter analysis, based on its duration, the scope and nature of its surveillance, the basis for its placement or because of other contextual or technological factors. This general proposition stems from the broad and functional view of the subject matter of such a recording, which could potentially capture information about an accused’s comings and goings as well as who they associate with and what activities they take part in. In the circumstances of this case, however, where the pole camera captured only the public space that an individual police investigator would have seen from the same distance, without any additional capture of sound or close-up camera angles, and for a limited period of time, such broader concerns do not arise.
I see no error in the application judge’s analysis of the pole camera. She carefully considered the Tessling factors and applied them to the facts before her. As the application judge found, if there was any expectation of privacy by the appellant over the public space in front of the house captured by the pole camera, it was “highly diminished” and did not constitute a search for purposes of s. 8 of the Charter.
