TOP COURT TO REVIEW POT AND PRIVACY: WINDSOR CASE FOCUS OF RULING

The case of a Kingsville handyman busted for a hydroponic marijuana growing
operation in his house has made it to the highest court in the land.

The Supreme Court of Canada announced Thursday it has accepted the case to
discover whether Walter Tessling's privacy rights were violated by police
when they uncovered his pot farm through the use of aerial infra-red
technology.

Tessling won an appeal earlier this year with a judgment police have to
obtain search warrants for that particular type of surveillance, which can
detect unusual heat patterns emanating from a house ? like that generated
from a hydroponic operation.

"The nature of the intrusion is subtle, but almost Orwellian in its
theoretical capacity," the ruling said.

Frank Miller, Tessling's lawyer, said the decision will be important because
of the privacy implications for Canadians. "The ugly part about this is the
police wouldn't have to be basing their surveillance on any particular
information," Miller said. "They could blanket whole neighbourhoods with
infra-red cameras hoping to pick up heat."

There are about 500 cases before Canadian courts that could be jeopardized
with a favorable ruling from the Supreme Court.

But Miller said he didn't think the ruling would cause many problems for
police.

"They would just have to gather their evidence and get a search warrant," he
said.

Though he has been acquitted, an unfavorable ruling would mean Tessling
could be retried on the original charges, Miller added.

Tessling was charged in May 1999 with trafficking and several weapons
offences after police raided his Kingsville home. Some of the evidence to
justify the raid was gathered with Forward Looking Infra-Red (FLIR) aerial
cameras.

Charter question

The Supreme Court is being asked to decide whether the cameras violate
Charter of Rights protection against unreasonable search and seizure. While
FLIR technology can detect heat patterns it cannot determine their exact
nature.

Miller is not surprised the case made it all the way to the Supreme Court
but he didn't think it would happen this quickly.

"I expected it to go through another appeals process," he said. "But this is
the kind of thing I expected to get there (Supreme Court) at some juncture.
In the U.S. police have to get a search warrant to use thermal cameras."