Judge says man accused of violent crime has no reasonable expectation of privacy in photo
In a criminal case, the Ontario Court of Appeal let the Canadian Civil Liberties Association (CCLA) intervene on the issue of how the availability of facial recognition technology (FRT) might inform an analysis regarding s. 8 of the Canadian Charter of Rights and Freedoms.
R. v. Kawall, 2026 ONCA 154, involved a criminal appeal set for hearing on Mar. 17. It will address the issue of whether the appellant had a reasonable expectation of privacy in a photograph a police officer had taken in a public place.
The photograph and FRT were tools to identify the suspect in an aggravated assault investigation. The FRT analysis yielded 193 candidates. After a manual comparison among multiple photos, the appellant emerged as a match.
The officer investigating the aggravated assault received the information regarding the appellant’s identity. After further investigation, police obtained a search warrant for the appellant’s address, targeting clothing that matched garments the suspect had worn.
Mid-trial, the appellant applied for the excision of related information from the information to obtain the search warrant, including the photo and the FRT results. He alleged that the taking of the photo breached his s. 8 rights.
The defence countered that the officer who snapped the photo breached the appellant’s s. 8 rights by contravening the relevant regulation, specifically the Collection of Identifying Information in Certain Circumstances - Prohibition and Duties, O. Reg. 58/16.
Sections 1, 5, and 6 of the regulation prevented police from collecting identifying information from individuals without their informed consent, subject to some exceptions.
The trial judge acknowledged a contravention of the regulation. However, the judge concluded that the contravention did not lead to a s. 8 Charter violation. In finding no s. 8 breach, the judge held that the appellant had no reasonable expectation of privacy in the photo in the circumstances.
According to the judge, in a public space where numerous other video cameras were also recording the appellant, the officer took the photo without any intention of using it for an FRT analysis.
The CCLA moved for leave to intervene in the appeal under r. 30 of the Criminal Appeal Rules. While the Crown did not oppose the CCLA receiving intervener status, it sought to limit the intervention to matters properly before the appeal court.
Intervention allowed
The Court of Appeal for Ontario granted the CCLA leave to intervene.
According to the appeal court, during trial and on appeal, the parties focused on the taking of the photo in a public place, rather than raising FRT’s constitutionality. The appeal court accepted that the factual record did not support conclusive findings for a broad constitutional assessment of FRT.
The appeal court ruled that the CCLA was attempting to provide an additional perspective on the constitutional issue, rather than improperly expanding the appeal’s parameters.
The appeal court rejected the Crown’s argument that the CCLA should not provide submissions on whether the FRT use in the context of the unlawfully taken photo amounted to a s. 8 breach.
The appeal court noted that the alleged failure to comply with the regulation and the use of the photo informed the s. 8 analysis. The appeal court held that the CCLA could offer a useful perspective on s. 8 of the Charter and the lawful or unlawful taking of photos in public spaces.
The appeal court clarified that the CCLA could not use academic literature as if it were part of the appeal record. The appeal court pointed out that academic articles would not constitute evidence tested in court.
The appeal court found that the CCLA could not advance its argument that FRT exacerbated bias and discrimination in policing. The appeal court saw no evidence supporting that argument. The appeal court noted that the appellant had refused to pursue the racial bias issue raised by the trial judge.
