POLICE INFRARED SEARCHES LEGAL, TOP COURT RULES

Using Heat Sensors To Find Grow-Ops Not A Privacy Infringement:
Judges

Janice Tibbetts
The Ottawa Citizen

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 yesterday.

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 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 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.

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, authored by Justice
Rosalie Abella, who was then on the appeal court, but has since been
promoted to the Supreme Court.

Judge 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 Mr. 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.

Mr. 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 ruling builds on another leading Canadian case on the right
against unreasonable searches. 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.