Ontario Court of Justice: Facial Recognition Technology of Driver’s License Photos Not A Privacy Violation


Recently, the Ontario Court of Justice (OCJ) released two decisions concerning a complex situation in which the defendant, Mr. Voong, was accused, through photo-identification technology, of possessing multiple fraudulent driver’s licenses. Authorities had identified 7 questionable driver’s licenses in the Ministry of Transport (MTO) database, all of Asian men with similar birth dates and supporting documentation, and through using facial recognition technology, suspected that all belonged to Mr. Voong.[1] In the past, three of these license-holders had been arrested for driving offences but did not show up in Court, and the Crown was seeking to lay these charges, as well as charges for fraudulent driver’s license possession under the Highway Traffic Act, on Mr. Voong.[2] Mr. Voong, in turn, claimed a breach of his section 8 rights under the Canadian Charter of Rights and Freedoms, arguing that the driver’s license evidence was obtained through an unreasonable search of the MTO database, so should be excluded.[3] The OCJ released two separate decisions, one dealing with each legal issue, when assessing Mr. Voong’s case—the first addressing his Charter claim, and the second addressing the Crown’s charges

In the first decision, the Ontario Court of Justice considered Mr. Voong’s claim that his section 8 charter rights were breached. Section 8 provides that “Everyone has the right to be secure against unreasonable search or seizure.” The Crown argued that section 8 rights do not apply to photographs and information submitted for a driver’s license application because driver’s license applicants are informed about relevant privacy considerations, including the MTO’s authority to disclose information to other agencies. Mr. Voong’s counsel, on the other hand, argued that the information in a driver’s license application is provided solely for use according to the Highway Traffic Act, and its use in a criminal investigation without a search warrant violated Mr. Voong’s right to be protected from unreasonable search and seizure. According to principles set out by the Supreme Court of Canada,[4] the Court found that Mr. Voong had no reasonable subjective expectation of privacy in this situation, so his Charter rights were not violated. Justice Libman notes there is minimal information provided on driver’s licenses, and that multiple groups, including insurance companies, banks, and government agencies, regularly access information in the MTO database.[5] He concludes that:

“The breadth of such agencies entitled to access such information strongly supports…the proposition that those who apply to the MTO for a driver’s license possess no subjective expectation of privacy in their name, address, sex, date of birth and accompanying photograph, all of which information appears on the face of the person’s driver license.”[6]

Consequently, the Court determined that Mr. Voong’s Charter rights had not been breached, and that the evidence obtained through searching the MTO database could be used by the Crown in charging Mr. Voong.

After confirming that using the driver’s license information did not violate Mr. Voong’s Charter rights, the Court’s second decision[7] addressed whether he could be charged for all 26 offences linked with the fraudulent driver’s licenses. The Crown was seeking charges based on the aforementioned photo-comparison technology which linked Mr. Voong to the fraudulent licenses, including the three linked with past driving offences. In accusing Mr. Voong, the Crown argued that the high degree of similarity in ethnicity, gender, birth date, and supporting documentation of Mr. Voong’s license and the seven allegedly fraudulent licenses mean that the odds were “astronomical” that anyone other than Mr. Voong was responsible for these licenses.[8] However, the Crown had no tangible evidence apart from the photo-comparison to link Mr. Voong to these licenses, and, most significantly, none of the police officers involved in arresting any of the three license-holders in the past was able to correctly identify him.[9] As a result, the Court concluded that “there is very little such evidence linking the defendant to either the three incidents resulting in the arrest of the party in question, or identification documents contained in the MTO driver license database,”[10] and found him not guilty either of the past offences of the license-holders, or of the possession of the fraudulent licenses.

Mr. Voong’s situation raises complex questions of privacy, technology, and identification. As we move into an increasingly digital age, new considerations will continue to emerge about how we uphold and protect our right to privacy in light of rapidly advancing technology.

This blog post was written by a CCLA Volunteer. Opinions expressed do not necessarily reflect the views of the CCLA.

[1] R v Voong, 2018 ONCJ 352 at paras 4-5 [Voong 1].

[2] Ibid at paras 7-8.

[3] Ibid at para 12.

[4] R v Marakah, 2017 SCC 59 at para 11.

[5] Voong 1, supra note 1 at para 46.

[6] Ibid

[7] R v Voong, 2018 ONCJ 353 [Voong 2]

[8] Ibid at para 31.

[9] Ibid at para 27.

[10] Ibid at para 24.

Photo retrieved from:  https://www.flickr.com/photos/62153623@N05/9024112536/in/photolist-eKqWgb