PRIVACY UNDER SIEGE: LAWYER

Says rights not valued as court upholds marijuana conviction

An anonymous tip and a suspiciously high hydro bill are sufficient grounds
to raid someone's home in search of a hydroponic marijuana operation,
Ontario's top court has ruled.

That's what led police to Alan Kesselring's two-storey house in Cambridge,
where they also noticed condensation on an upstairs window and plywood
covering windows in the basement.

After raiding his home, Kesselring was arrested and convicted for unlawful
cultivation of marijuana.

His lawyer, Alan Young, argued officers needed far more evidence before
bursting through the door and conducting what he believes was an
unreasonable search and seizure.

The court unanimously upheld Kesselring's conviction yesterday, a decision
seen by Young as the latest in a line of judicial rulings attaching minimal
value to Canadians' privacy rights under the Charter of Rights and Freedoms.

"Privacy rights under the Charter should be put on some sort of endangered
species list," said Young, a professor at Osgoode Hall law school.

Yesterday's ruling means police need only minimal information to corroborate
an anonymous tip, part of the legal requirment for conducting a search, he
suggested.

"From St. John's to Vancouver, courts fail to appreciate two things," he
said. "One is the inherent danger of relying on anonymous tips. I can call
up and provide a tip about a judge and God forbid the judge's windows should
have condensation on them.

"But the other thing they really don't recognize or fully appreciate is the
trauma and fear that's triggered by a drug raid. It is not a tea party. It
is a SWAT team intrusion, always."

A Crime Stopper's tip about an alleged marijuana operation at Kesselring's
house got some information wrong. For instance, the man's home was actually
nine houses away from the location described, and he was wrongly said to be
a college teacher.

Police compared hydro consumption at Kesselring's house with one other home
in the neighborhood, but there were differences in the houses' ages and
structure.

A team of Young's law students called the Cambridge hydro department and got
information about electrical consumption at seven other houses for a better
comparison and police could have easily done the same, Young said.

The three-judge appeal panel agreed with Young that any comparisons should
be reasonable and it may be necessary for courts to hear expert evidence on
why there could be differences in electrical consumption between houses.

But Justices John Laskin, Kathryn Feldman and Dennis O'Connor said the
weaknesses in the evidence against Kesselring were minimal and don't justify
throwing out the evidence - less than 100 plants - seized during the search.