R. v. Ouellet - 2025 SCC 40 - 2025-12-03

Christie Eze

— 5 min read

1. Case Overview

R. v. Ouellet, 2025 SCC 40 (decided December 3, 2025) marks the Supreme Court of Canada’s first in-depth ruling on the use of automated facial-recognition technology by police in public spaces. The appellant, Mr. Roy Ouellet, was identified by law-enforcement officers via a proprietary facial-matching system applied to public CCTV footage. Charged with multiple counts of armed robbery, Ouellet challenged the police’s use of real-time and retrospective biometric surveillance as an unreasonable search under section 8 of the Canadian Charter of Rights and Freedoms and sought exclusion of the identification evidence under section 24(2). The Court was called upon to determine whether (i) automated facial recognition constitutes a state “search,” (ii) whether Ouellet possessed a reasonable expectation of privacy in his biometric likeness, and (iii) if so, whether the evidence must be excluded. The decision clarifies the extent to which modern, automated surveillance engages Charter protections.

2. Procedural History

At trial in the Superior Court of Québec, the Crown admitted the facial-recognition identification and CCTV evidence; Mr. Ouellet was convicted on all counts. On appeal, the Québec Court of Appeal split 2–1, holding that no Charter breach occurred because Ouellet lacked a reasonable expectation of privacy in his facial image when in public view. The dissenting appellate judge would have found a breach and excluded the evidence as rendering the trial unfair. Ouellet’s subsequent appeal to the Supreme Court of Canada was granted leave in March 2025 on the narrow constitutional questions surrounding s. 8 and s. 24(2). The Supreme Court heard full argument on October 15, 2025.

3. Material Facts

Over several nights in January 2024, a series of armed robberies against convenience stores in Montréal were recorded on private and municipal CCTV systems. Rather than manually reviewing hours of footage, the Montréal police contracted with TechVision AI, a vendor supplying a cloud-based facial-recognition algorithm. The system compared extracted faceprints against a database containing mugshots of convicted individuals and persons previously charged but not convicted. The algorithm flagged Ouellet with 92 percent confidence on January 12, 2024. Police then deployed undercover officers to observe Ouellet’s residence; no warrant was sought for either the facial-recognition search or the subsequent surveillance of his home. Later, officers executed a search warrant based on combined CCTV identification and confidential informant information, seizing clothing matching that worn by the robber. At trial, the facial-recognition evidence formed the cornerstone of identification.

4. Issues Before the Court

The Supreme Court identified three discrete Charter issues:

  • Does the use of automated facial-recognition technology by state actors constitute a “search” under s. 8 of the Charter?
  • If so, did Ouellet have a reasonable expectation of privacy in his facial biometric information when captured and processed from publicly accessible cameras?
  • Assuming a s. 8 breach, should the evidentiary fruits of that breach—the identification of Ouellet—be excluded pursuant to s. 24(2)?

The Court applied its established s. 8 jurisprudence. First, the two-step framework from R. v. Tessling, [2004] 1 S.C.R. 486, requires determining whether the impugned state conduct constitutes a “search” and, if so, whether it was unreasonable. To identify a “search,” the Court considers whether the person had a “reasonable expectation of privacy” in the affected place or thing (R. v. Marakah, [2017] 1 S.C.R. 59). For s. 24(2), the Court applies the three-factor test of R. v. Grant, [2009] 2 S.C.R. 353: assessing the seriousness of the Charter-infringing state conduct, its impact on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

6. The Court’s Analysis and Reasoning

Step 1: Determination of a Search. The majority, led by Justice Karakatsanis, held that the automated extraction and biometric processing of Ouellet’s facial data goes beyond mere observation. Paralleling the invasive heat-detection in R. v. Tessling, the matching algorithm constituted a search because it accessed sensitive personal information—unique biometric identifiers—that Ouellet did not voluntarily disclose to the state.

Step 2: Reasonable Expectation of Privacy. Relying on R. v. Jarvis, [2019] 2 S.C.R. 488, which recognized a privacy interest in targeted video surveillance, the Court found that an individual retains a reasonable expectation of privacy in how their biometric data is collected and used, even when physically in public. Facial biometrics reveal far more than one’s mere presence; they enable identification, profiling, and the potential for mass surveillance. Ouellet’s lack of knowledge about the real-time deployment of biometric systems exacerbated the privacy intrusion.

Step 3: Was the Search Unreasonable? No prior judicial authorization or statutory scheme governed the use of TechVision’s algorithm. The absence of tailored legislative safeguards or operational guidelines rendered the search unreasonable. The majority emphasized that police cannot outsource judicial oversight to private vendors.

Step 4: Section 24(2) Exclusion. Applying Grant, the Court held that (i) the seriousness of the breach was high, given police’s deliberate bypass of warrant processes; (ii) the impact on Ouellet’s privacy rights was profound, as the technology tracks intimate personal traits; and (iii) society’s interest in convicting armed robbers, though significant, could be vindicated through other evidence (e.g., eyewitness and clothing). Exclusion was warranted to maintain the integrity of the justice system.

7. Decision and Outcome

The Supreme Court allowed Ouellet’s appeal by a 5–4 majority. The facial-recognition identification was excluded under s. 24(2), the resulting search held to be an unreasonable violation of s. 8, and the convictions were set aside. The matter was remitted for a new trial without the biometric evidence.

8. Relationship to Existing Precedent (CRITICAL)

R. v. Ouellet builds directly on the Court’s emerging privacy jurisprudence. It extends the logic of R. v. Tessling’s heat-sensor “search” threshold to modern digital biometrics and confirms Jarvis’s private-space rationale in fully public contexts, given the depth of personal information extracted. The decision also echoes R. v. Marakah’s emphasis on unique personal data (DNA) by classifying facial templates as equally sensitive. Unlike R. v. Spencer, [2014] 2 S.C.R. 212, which dealt with subscriber information disclosed to ISPs, Ouellet confronts state deployment of proprietary analytics. Finally, the majority’s exclusion analysis refines Grant by explicitly weighing the technological reality of mass, indiscriminate surveillance.

9. What Is New or Different About This Decision (CRITICAL)

Ouellet is the first Supreme Court ruling to apply s. 8 to automated facial-recognition software. It introduces a “biometric privacy” category requiring heightened scrutiny. The decision establishes that:

  • Unregulated use of facial templates is a search, even in public places.
  • Reasonable expectations of privacy encompass the manner in which one’s biometric data is processed and stored.
  • Outsourcing analytical functions to private entities does not absolve police from obtaining prior judicial authorization.

These points crystallize a new dimension of privacy rights in the digital age, fitting biometric data within the Charter’s protective scope.

10. Practical and Precedential Significance

R. v. Ouellet signals to law enforcement that any deployment of advanced biometric systems, whether retrospective or real-time, requires clear legislative authority or judicial oversight. Police agencies nationwide must review existing protocols for CCTV and facial-recognition use. Prosecutors should anticipate pre-trial Charter challenges to biometric evidence and the likely exclusion of identifications obtained absent prior authorization. For future litigation, courts will reference Ouellet when balancing investigative innovation against entrenched Charter values.

11. Key Takeaways

  • Automated facial-recognition by state actors is a s. 8 search.
  • Individuals retain privacy interests in their biometric data, even when in public.
  • Private-sector collaboration does not circumvent Charter safeguards.
  • Unchecked biometric surveillance risks evidence exclusion under s. 24(2).
  • Legislatures and police must establish clear frameworks for biometric technologies.

12. Why This Case Matters

As governments and private companies increasingly deploy biometric analytics, Ouellet provides a Charter-based framework to guard against pervasive surveillance. It reassures the public that technological advances will not erode fundamental rights. Internationally, Canada aligns with jurisdictions like the EU, which similarly regulate facial-recognition tools. Ouellet thus stands as a landmark decision anchoring digital-era privacy within Canadian constitutional law.

13. Bottom Line

R. v. Ouellet crystallizes a robust, Charter-protected right to biometric privacy, requiring police to obtain prior judicial authorization before deploying facial-recognition technology. By excluding improperly obtained identification evidence, the Supreme Court reinforces that cutting-edge investigative techniques must conform to longstanding constitutional guarantees. For practitioners, policymakers, and law enforcement, Ouellet sets the definitive standard for biometric surveillance under section 8.

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