UAVs and the Canadian Charter of Rights and Freedoms

The rise in popularity and use of unmanned aerial vehicles (“UAVs”) has attracted much attention recently. In the last year, we have seen a major uptick in UAV use by private companies. Here in Canada, UAVs have been regulated for some time through federal aviation regulations, but the accessibility of relatively inexpensive UAV technology has led Transport Canada to consider revisiting the regulations to ensure they are keeping pace with current interest and use.

In many industries, both private actors and government bodies are using UAVs in new and innovative ways. Arising from this technological leap forward are a number of new legal issues, particularly in the area of privacy. Pursuant to section 8 of Canada’s Charter of Rights and Freedoms (the “Charter”). Canadian citizens have a right to privacy, including the right to expect that the government cannot collect information about them in certain circumstances.

Because police forces and other investigatory agencies are clearly linked to the government, their use of UAVs is subject to the Charter. But what about private companies that provide services to public bodies (“para-public companies”). Is the Charter something they should consider when using UAVs? At the moment, Charter implications for using UAV technology remains an open legal question. To date, there are no reported court decisions that consider the issue, either for law enforcement agencies, or for private contractors working for public bodies. The use of UAVs by police forces to take photographs or video, or to collect other data, can be open to challenge in the event the images, video, or data are used in a criminal investigation.

The Supreme Court of Canada case of R. v. Tessling, 2004 SCC 67, is an example of such a challenge related to the activities of the Royal Canadian Mounted Police (“R.C.M.P.). In Tessling, the R.C.M.P. used a fixed-wing aircraft equipped with forward looking infra-red (“FLIR”) cameras to fly over properties owned by an individual suspected of operating a marihuana grow-op. The police obtained images of heat radiating from the building, though the FLIR images did not show the inside of the building. Using these images, the police obtained a search warrant to search the suspect’s property, and found the grow-op they suspected was there. At trial, the suspect challenged the FLIR photographs as an invasion of his section 8 right to privacy. The challenge did not ultimately succeed, but a key factor in the Court’s decision was that the images produced by the current FLIR technology were not truly invasive, because the images did not allow the police to “see” inside the suspect’s home. The Court emphasized, however, that improvements in the technology may lead to future challenges and the Court would be open to revisit the issue at a later date. The principles in Tessling have been applied to other types of searches where authorities have captured images or collected data using non-traditional surveillance techniques.

With regard to para-public companies, some guidance may be taken from a line of cases where the courts consider whether a private citizen or entity is acting as an “agent” for law enforcement. A critical consideration for courts in these cases is whether the private citizen or entity has been asked or directed to assist with a search. So, for example, in the case of R. v. Wilkinson, 2001 BCCA 589, a landlord took it upon himself to investigate the residence of a tenant and, after finding a marihuana grow-op, advised the police. In Wilkinson, the private citizen was not asked or told to investigate by police. For this reason, the court allowed the evidence found during the search to be used against the accused. However, in R. v. Liang, Yeung, et al, 2007 YKTC 18, a Yukon Electric employee was asked by police to go onto the accused’s property in search of an electrical bypass. The employee discovered the bypass, and that information was used by the police to make an arrest. The court concluded that because the police had specifically directed the Yukon Electric employee, the employee was an “agent” of the police and his actions were subject to the Charter.

Based on these cases, private contractors asked or hired to conduct searches or assist with investigations should be aware that the results of those searches may be subject to Charter scrutiny. Ultimately, the impact on the non-government actor may be minimal, as the common remedy for a Charter breach is to expunge the evidence from the court record. However, there are other privacy concerns beyond the Charter that may expose a company or an individual operating a UAV to civil liability, or even criminal charges. Private operators may wish to seek a legal opinion regarding the potential implications of their UAV activities.