COURT OKs AERIAL HUNT FOR DOPE

Windsor Grow-Op Dealer Unsuccessfully Argues Privacy Rights
Abused By RCMP Use Of Heat Sensor

HE FOUGHT the law -- and the law won. The Supreme Court of Canada has
ruled against a Windsor drug dealer who claimed his privacy rights
were invaded when RCMP ferreted out his hydroponic pot-growing
operation with a heat-sensor camera. In a unanimous decision, the top
court said police can use forward-looking infrared (FLIR) cameras to
detect marijuana plantations concealed in homes.

'LEGITIMATE CONCERNS'

"The community wants privacy but it also insists on protection," the
judgment reads. "Safety, security and the suppression of crime are
legitimate countervailing concerns."

Walter Tessling had convinced the lower provincial court of appeal
that his charter rights had been violated by the fly-past infrared
surveillance. Yesterday's ruling restores the conviction that had been
tossed out by the Ontario Court of Appeal, which declared the
surveillance technique "almost Orwellian."

Tessling was sentenced to 18 months in jail after Mounties received a
search warrant and seized 120 plants worth up to $20,000.

HEAT PATTERNS ON HOUSE

The Supreme Court concluded that FLIR technology did not intrude on
Tessling's privacy, since patterns of heat distribution on external
surfaces of a house are not a type of information that's normally
considered private.

"The information offered no insight into his private life and its
disclosure scarcely affected his "dignity, integrity and autonomy,"
the judgment read.

Tessling's lawyer, Tom Costaris, didn't dispute the fact his client
had broken the law but argued the surveillance was unreasonable state
intrusion. What goes on inside the home is "protected, private
activity," he said, suggesting law-abiding Canadians with indoor
saunas or pottery kilns could become victims of police searches.

Justice department lawyer Jim Leising dismissed the notion that
Canadians could be seen as criminals just for using extra heat in
their homes.

"You have a scale that you have to load up with pieces of evidence,
and the FLIR piece of evidence is so light it wouldn't move the scale
at all," he said.

Tony Cannavino, president of the Canadian Professional Police
Association, called the top court's decision a victory for law
enforcement.

'SPECIAL TOOLS' NEEDED

To ban infrared surveillance would handcuff officers cracking down on
growing operations, often hidden in residential neighbourhoods rather
than the traditional farm fields.

"It would have been harder, and already it's not easy," Cannavino
said. "If we really want to fight organized crime and grow-ops, we
need the special tools to find them."

THE DECISION

"Few things are as important to our way of life as the amount of power
allowed the police to invade the homes, privacy and even the bodily
integrity of members of Canadian society without judicial
authorization."

"The accused had a privacy interest in the activities taking place in
his home and it may be presumed that he had a subjective expectation
of privacy in such activities to the extent they were the subject
matter of the search."

- -- Justice Ian Binnie, writing for the 7-0 majority on the Supreme
Court of Canada