INFRARED SURVEILLANCE DOESN'T VIOLATE PRIVACY

OTTAWA - Police tactics to root out marijuana grow ops by using
infrared aerial surveillance do not contravene the constitutional
right to privacy in one's home, the Supreme Court of Canada ruled Friday.

The decision is in contrast with the law in the United States, where
the high court ruled three years ago that it is unconstitutional for
police to use the thermal heat cameras without a judge's warrant
because of the need to protect the home "from prying government eyes."

The Canadian Supreme Court unanimously concluded that the cameras,
which are used to detect external "hot spots" that may indicate the
presence of electricity-gobbling marijuana growing operations, are
"non-intrusive" and "mundane" in the information that they reveal.

The decision is a loss for handyman Walter Tessling, who said police
violated his Charter of Rights protection against unreasonable search
by unlawfully using an infrared aerial camera over his home near
Windsor, Ont.

The ruling restores his conviction and sentence of 18 months in jail
for being caught with 120 marijuana plants.

"Living as he does in a land of melting snow and spotty home
insulation, I do not believe that the respondent had a serious privacy
interest in the heat patterns on the exposed external walls of his
home," Justice Ian Binnie wrote in the 7-0 decision.

"Safety, security and the suppression of crime are legitimate
countervailing concerns."

Police, who are already losing the war against hydroponic marijuana
operations, warned the Supreme Court that requiring warrants to use
heat-sensing cameras would lead to "investigative gridlock."

The Supreme Court rejected a ruling from the Ontario Court of Appeal
that the surveillance technique merits a warrant because the detected
heat may come from "perfectly innocent" private activities, such as
taking a bath or using lights at unusual hours.

"The nature of the intrusion is subtle but almost Orwellian in its
theoretical capacity," said the 2003 ruling, authored by Justice
Rosalie Abella, who was then on the appeal court but has since been
promoted to the Supreme Court.

Binnie confined the court's ruling to the infrared technology as it
exists today and said that any advancements will have to be dealt with
by the courts.

Despite Tessling's loss, his lawyer, Frank Miller, believes the
Supreme Court has a pattern of siding with privacy rights over police
powers.

Miller also noted that new infrared technology that exists in the U.S.
- -- which can detect people moving in their homes -- would probably not
survive a Canadian legal challenge.

He based his conclusion on the tempered nature of the Supreme Court
ruling, which repeatedly stressed that privacy is paramount and "that
the spectre of the state placing our homes under technological
surveillance raises extremely serious concerns."

The Supreme Court ruled 10 years ago that police can freely obtain
electricity bills in their investigations because they reveal little
about personal lifestyles and, therefore, do not meet the test for
privacy protection.