Privacy and personal photos at heart of case

Bob Aaron in Legal

A decision released by the Supreme Court of Canada last month raises the interesting question of how much privacy an individual may expect with respect to personal photographs taken inside his or her own home.

The story began in June 2001. Agnieska Wojtanowska (Agnes) lived with Douglas Weil in a house in the Regional Municipality of Halton.

On June 1, 2001 she delivered some photographs taken inside their residence to Black's Photography, located at the Bramalea City Centre, to be developed.

The photographs showed marijuana plants growing in the house. They also included "personal" photographs.

Employees of Black's turned copies of the developed photographs over to officers of the Peel Police Service before they gave the original photos to Wojtanowska. The Peel police then delivered the photographs to the Halton Regional Police Service.

A few days later, the Halton police executed a search warrant of the couple's house and seized the marijuana plants they found there.

Wojtanowska and Weil were charged with possession of marijuana, possession of marijuana for the purpose of trafficking, and production of marijuana.

The couple then brought a motion in Superior Court in Milton to exclude the fruits of the search from their trial, based on an allegation that their rights to be secure against unreasonable search or seizure guaranteed by Section 8 of the Charter were violated.

Their motion was granted and a few days later, all the charges were dismissed for lack of evidence.

The judge hearing the motion also ordered that the evidence seized under the warrant be returned.

Apparently, not all the photos were returned, so the couple brought another motion demanding return of the photographs in the possession of the police. The presiding judge ordered that these photographs be returned to the plaintiffs immediately.

She stated, "It is understandable that the applicants are dismayed about the missing photos ... as they contain personal images of the wife of a sensitive nature."

By June 2008, Weil and Wojtanowska had secured the return of all of the photographs.

Understandably somewhat miffed, they sued Black's Photography, their employees who dealt with the photographs, the Peel and Halton police, and the officers who were involved in the investigation.

They claimed that the defendants had violated their Charter rights and breached their copyright interest in the photographs.

The total claim exceeded $1.4 million.

Weil did not want to introduce the photos in evidence at the trial against Black's and the police, and asked the court for an order excluding them from evidence.

The judge dismissed the motion by Weil and ruled that he had to produce the photographs, which could be used as evidence in the trial.

Weil and Wojtanowska then applied to the court for permission to appeal that order.

Justice Peter Hambly turned them down.

In his decision, he wrote "The plaintiffs, having sued on the basis of the use of the photographs by the defendants, cannot now refuse to produce them to the defendants. The defendants can only properly assess the case against them by viewing the photographs. ...

"The plaintiffs are clearly very sensitive about others viewing the photographs. I can understand this. ... However, they cannot both sue on the photos and refuse to produce them."

Weil and Wojtanowska appealed again. The case reached the Supreme Court of Canada on July 9. In a short 42-word decision, a three-judge panel dismissed their application for permission to appeal.

Several lessons emerge from this case.

With respect to criminal charges, citizens do have some expectation that personal photographs may be shielded from the prying eyes of law enforcement authorities.

Suing on the basis of seizure of personal photographs is problematic. The photos have to be entered into evidence and may receive wider distribution than they would without a lawsuit.

Taking "personal" photos "of a sensitive nature" to a commercial photo lab for processing or printing is not a wise idea, especially if they contain evidence of what might be a criminal activity.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail

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