INFRARED SCANS: THE COURT GOES TOO FAR

The Supreme Court of Canada undermined the right to privacy last week when
it ruled police can use infrared technology to scan for heat sources in the
homes of the nation.

Though Justice Ian Binney confined his decision to the constitutional
acceptability of a specific technology, the ruling sets a dangerous
precedent and effectively provides police a window into private dwellings.

The unanimous decision by the unelected judges is at odds with a U.S.
Supreme Court ruling that the use of infrared cameras violates the
"sanctity of the home." And it overturns a 2003 Ontario Supreme Court
ruling that found "the nature of the intrusion subtle but almost Orwellian
in its theoretical capacity."

The long and winding road to Canada's top court began in 1999 when the RCMP
used Forward Looking Infra-Red aerial cameras to scan the home of
Kingsville's Walter Tessling. Police opted to use the heat-seeking cameras,
without obtaining a search warrant, after being approached by two
informants with information about a marijuana grow operation.

The cameras pinpointed concentrated sources of heat in Tessling's house --
an indication of a possible grow operation -- and police used that
information to help obtain a search warrant. Tessling was subsequently
arrested and convicted on drug charges and sentenced to 18 months. The
Ontario Supreme Court overturned that verdict but the Supreme Court's
reversal means Tessling will now go to jail.

The key question the court had to consider in Tessling's case was whether
surveillance by the heat-seeking cameras violated Section 8 of the Charter
of Rights and Freedoms, which protects citizens "against unreasonable
search or seizure."

The court ruled the information obtained by the cameras was hardly private
or personal in nature, contradicting the Ontario ruling that found the
cameras provided police with far more information "about what goes on
inside a house" than standard surveillance techniques.

"Living as he does in a land of melting snow and spotty home insulation, I
do not believe that the respondent has a serious privacy interest in the
heat patterns of the exposed external walls of his home," wrote Justice
Binnie. "Safety, security and the suppression of crime are legitimate
countervailing concerns."

While Binnie is correct that safety and security are important concerns,
especially given the ever-present threat of terrorism, those concerns must
not be allowed to trump an individual's right to privacy and freedom from
the arbitrary exercise of police power.

If the information obtained from the cameras helps police to obtain a
search warrant -- and it clearly can and did in Tessling's case -- it
allows police to effectively do an end run around the Charter rights of
Canadians. The cameras shouldn't be used to obtain a search warrant; they
should be used only with court approval as an evidence gathering tool.
Otherwise, police can simply fly overhead scanning your home at will
without reason.

If there is a silver lining in Binnie's ruling, it is that he confined his
reasoning narrowly to the issue of the infrared cameras, as opposed to
other surveillance techniques, and wrote of the importance of safeguarding
citizens from the intrusive powers of the state and its police agents:

"Few things are as important to our way life as the amount of power allowed
the police to invade the homes, privacy and even the bodily integrity of
members of Canadian society without judicial authorization."

The state may have won the battle, in other words, but it has not yet won
the war.