TOP COURT TO PONDER HIGH-TECH SNOOPING

Marijuana Case Involving Kingsville Man Tests Privacy

A drug case involving a Kingsville man that could restrict police use of
infrared heat-sensing cameras and similar technology is to be heard by
Canada's top court next week.

"It's an important privacy case, in my opinion. It's not about drugs. It's
about privacy," said Windsor lawyer Frank Miller, who is representing
Walter Tessling in the Supreme Court case.

April 16 hearing

The Canadian Civil Liberties Association, which has been granted intervenor
status at the April 16 hearing, agrees. "What you're dealing with is
expanded technological ability to invade personal privacy," said Alan
Borovoy, the association's general counsel.

"With every advance we don't want to feel that people become ? more
vulnerable to bypassing safeguards that our law has devised to ensure these
things are handled within certain appropriate limits."

That means police should get a search warrant to use infrared heat-sensing
cameras to try to determine if people are growing marijuana in their homes,
he said.

The Ontario Court of Appeal in January 2003 acquitted Tessling of charges
related to a large quantity of marijuana found in his home by police in May
1999. The court ruled the police violated his privacy rights by not getting
a search warrant before using Forward Looking Infra-Red (FLIR) aerial
cameras to detect heat coming from buildings on Tessling's property.

The appeal court found FLIR allowed police to obtain "more information
about what goes on inside a house than is detectable by normal observation
or surveillance."

The federal attorney general, backed by those from Ontario and Quebec, is
asking the Supreme Court to overturn that ruling.

"Our position is that the FLIR camera doesn't capture anything that's
private, therefore it's not a search or seizure" that requires a warrant,
said Jim Leising, director of federal prosecutions for Ontario.

"Clearly any technological device that gives you the functional equivalent
of being in the house would be governed by the warrant provisions," he
said. "But this isn't a device that does anything like give you the
functional equivalent of being inside.

Hot spot

"All it can ever tell you is that there is a spot at the exterior of your
house which is hotter than any other spot on your house?. It can never tell
you what the cause of the heat is."

"The FLIR is a very valuable tool for law enforcement in that it allows
them in many cases to confirm whether they have sufficient information or
not to apply for a search warrant in (marijuana) grow house cases," he said.

The intentions of police and prosecutors may be good, but they have to be
weighed against the privacy rights of individuals, Borovoy said.

Miller said he feels the Supreme Court's decision could apply not just to
FLIR but to other cutting-edge snoop technology used by law enforcement.

"I'm getting the feeling they want to initiate something that's good for
now and for the future," he said.

"They're going to have to make it meaningful."

A growing array of devices developed for military and international
intelligence purposes are being tested and used by police agencies, Miller
said.

If they want to use them to spy on people, they should get search warrants
or go to Parliament for a change in the law, he said.