BANNING INFRARED SEARCHES WOULD HANDCUFF POLICE, TOP COURT TOLD

Heat-Seeking Technology Used To Track Grow-Ops 'Doesn't Breach Rights'

Police tactics used to detect marijuana grow operations clashed with
the right to privacy in the sanctity of one's home as the Supreme
Court considered yesterday whether to impose limits on infrared aerial
surveillance.

The court was warned that police, who are losing the war against
grow-ops, would be hampered by "investigative gridlock" if the judges
decide it is unconstitutional for police to employ heat-sensing cameras.

The Attorney General of Canada asked the Supreme Court to overturn an
Ontario Court of Appeal ruling that police had violated handyman
Walter Tessling's Charter of Rights protection against unreasonable
search and seizure by unlawfully using an infrared aerial camera to
detect excess heat in his home outside Windsor.

On the other side of the courtroom, Mr. Tessling's lawyer, Frank
Miller, cautioned against granting licence to the state to use
technology to spy on people in the place where they most expect privacy.

The court reserved its decision and a ruling is not expected for months.

Hydroponic marijuana operations, which number in the tens of thousands
across the country, need an unusual amount of lighting and, therefore,
give off intense heat.

Police sometimes use forward looking infrared aerial cameras to locate
"hot spots."

The Ontario Court of Appeal ruled last year that police have to obtain
search warrants for aerial surveillance using infrared cameras, since
the heat they detect may come from "perfectly innocent" activities,
such as taking a bath or using lights at unusual hours.

"The nature of the intrusion is subtle, but almost Orwellian in its
theoretically capacity," wrote Ontario Justice Rosalie Abella, who is
a candidate for one of two soon to be vacant seats on the Supreme Court.

She ruled there should not be a ban on using infrared cameras in
marijuana investigations, but that police must obtain a warrant from a
judge first.

Her judgment acquitted Mr. Tessling, who had been sentenced to 18
months in jail after the RCMP seized about 120 plants worth an
estimated $15,000 to $20,000 from his home.

Federal lawyer James Leising told the Supreme Court that Canadians
could not care less about aerial cameras searching for heat sources on
the outside of their homes. FLIR technology cannot zero in on the
heat-causing activity in a home, he said. It can only detect where
there are unusual hot spots that can be caused by such things as
people using their fireplace or saunas.

"This really doesn't reveal anything personal of any sort.

"This is something Canadians just don't care about. It's really
impossible to imagine who cares, other than marijuana growers."

The Ontario government, an intervenor in the case, argued that the
court would "stifle legitimate police inquiries and create
investigative gridlock" by siding with Mr. Tessling.

Several judges were skeptical about whether privacy rights were at stake.

Justice Frank Major questioned whether Canadians should be more
concerned about police searching their garbage, something for which
they do not need a warrant.

The United States Supreme Court has already found that it is
unconstitutional for police to use the thermal cameras without a
search warrant.

In a 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.

Mr. Miller said that the threat in this case is more serious because
it involves the burgeoning and virtually unchecked field of
technology.