POLICE SEEK HOTHOUSE ATMOSPHERE

The Supreme Court of Canada gave government early Christmas presents
last week.

First, the court let Newfoundland and Labrador renege on a $24 million
pay equity commitment simply because the province declared it was in a
fiscal crisis. I can't speak to the province's financial affairs, but
I do know that courts do not usually release offenders from their
obligations to pay fines on a mere assertion of financial hard times.
The impecunious often end up in jail.

The next day, the court relieved law enforcement officials of all
legal obligations to secure a warrant from a judge to use F-orward
Looking Infra-Red (FLIR) cameras to record images of thermal energy or
heat radiating from a private home. FLIR technology is the new toy for
fighting the supposed scourge of marijuana grow-ops. Admittedly, being
watched by FLIR does not reveal intimate details of activities in the
house, but it does detect patterns of heat distribution. Finding an
unusually high and consistent pattern of heat radiating from a home
may raise a suspicion that marijuana is being grown within because
grow-rooms typically use high-intensity halide lamps, which generate a
substantial amount of heat

On April 29, 1999, the police used an RCMP airplane equipped with a
FLIR camera to fly over Walter Tessling's Ontario home. The police had
received a tip implicating Tessling in the local marijuana trade and,
in an effort to corroborate the threadbare tip, they went looking for
heat. They found heat.

On this basis, they then secured a warrant to search the house and
found some marijuana and several guns. They did not, however, uncover
a large grow-op. Maybe Tessling had a sauna.

The Ontario Court of Appeal held that the police violated the
accused's right to be free from unreasonable search and seizure by
failing to obtain a warrant for the FLIR overfly. The formula for
constitutional protection can be simply stated: If any police action
invades a reasonable expectation of privacy then the action will be
classified as a search, and the Constitution demands that all searches
be pre-authorized by judicial warrants (unless the police are facing
an emergency).

The Court of Appeal believed that FLIR imaging intruded upon an
expectation of privacy and stated that "the nature of the
intrusiveness is subtle but almost Orwellian in its theoretical capacity."

The Supreme Court of Canada saw nothing Orwellian in the technology.
This court believed that privacy was not jeopardized because the
imaging revealed little, or no, intimate details of the homeowner's
activities.

The conclusion that police action does not violate privacy actually
means that the police can use the technique or technology whenever and
however they please. No legal or constitutional restrictions are
placed upon an activity deemed not to constitute a search.

At least in Tessling's case, the police had some suspicions about
marijuana growing, but the ruling does not restrict the police to
using FLIR upon reasonable suspicion. Right now, the police can be
flying over your property to FLIR you.

The Supreme Court has had a fairly consistent track record of
vigorously protecting the privacy rights of criminal suspects. So it
is puzzling the court has given the constitutional seal of approval
for police to use FLIR without any regulation even though the
ultra-conservative U.S. Supreme Court has condemned thermal imaging
without a warrant. Has a few years of bold, judicial activism left our
court weary of defending rights?

I guess it would be tiring to try to define the meaning of privacy.
Different people and different cultures have different definitions. In
some places, guests showing up unannounced for dinner is a joy; in
most Western cultures this would be an invasion of privacy. In some
places, 12 people may call one room home while we usually crave homes
with more room than we need.

Even the quintessential private act, sex, is not so private for
swingers and orgy participants. In fact, cross-cultural,
anthropological studies show that the only universal private act is
defecation. Constitutionally, this would translate into police needing
only to obtain a warrant to search a lavatory.

The court was asking the wrong question in trying to determine if the
patterns of heat distribution within our homes would disclose
information of a private and intimate nature. Some people may not care
if the police collect information about the timing of their daily
showers while others would find this senseless and arbitrary
collection of information by the state to be "Orwellian in its
theoretical capacity."

It is far simpler to ask whether there has been a violation of the
right to be left alone, free from arbitrary state intrusion. That is
the core meaning of the constitutionally enshrined right to be free
from unreasonable search.

Clearly, my right to be left alone is violated when the police fly
over my property to map the heat patterns. I would hope the police
would be legally required to seek approval from a judge before going
to the trouble and expense of filming psychedelic, thermal images of
my home from navigable airspace.

If they can convince a judge that they have reasonable grounds to
suspect I am conducting criminal activity from my home, then let the
flyovers begin. Otherwise, leave me alone and move on to some serious
police business.