JUDGES CLEAR SKY SPIES TO ROOT OUT GROW-OPS

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 a departure from the law in the United States, where the
high court ruled three years ago that it is unconstitutional for police to
use the thermal 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 grow-ops, 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 and
seizure by unlawfully using an infrared aerial camera over his home outside
Windsor, Ont.

The ruling restores his conviction and sentence of 18 months in jail for
being caught with 120 marijuana plants worth an estimated $15,000 to
$22,000.

"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, written 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 "step by step."

Despite Tessling's loss, his lawyer, Frank Miller, said he believes that 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."