HOW FAR SHOULD POLICE GO?

Ruling Sets Limits On Helicopter Use Of Heat-Seeking Equipment

Just how far should police be allowed to go to determine if illegal
activity is going on in your home?

That was the issue when the Ontario Court of Appeal ruled unanimously that
the indiscriminate use of heat-seeking technology by police helicopters was
an invasion of privacy. The three-judge panel decided the technology can
still be used but only after police first obtain a search warrant.

Section 8 of Schedule B, Part 1 of the Charter of Rights and Freedoms
states: "Everyone has the right to be secure against unreasonable search
and seizure." Judge Rosalie Abella stated the "nature of the intrusiveness
is subtle but almost Orwellian in its theoretical capacity."

The heat-seeking equipment has been a weapon in the war on pot-grow homes
across the GTA. Typically, a home used to grow marijuana produces an
inordinate amount of heat in the production of the plants. High sources of
heat in homes, therefore, could be a clue in the fight to shut down the
homes. While police would not comment on the number of busts that have been
made using the technology, federal drug prosecutor Alex Sosna, who
currently has about 75 marijuana grow lab cases on his desk, says "a large
number" involve the use of infrared equipment.

It's unclear how those cases will now proceed given the court's opinion on
the use of the equipment. In the past year 125 marijuana grow homes in
Durham have been shut down.

Durham Deputy Police Chief Rod Piukkala says it hasn't been common practice
for the police helicopter to fly over homes in the region to check for
suspicious heat levels. He does admit, "I can't say never, but it would be
impractical."

The helicopter can and will be used in specific investigations, checking on
suspect homes that were already targeted. In other words, police will have
to present sufficient evidence to a judge or justice of the peace that a
search warrant is needed before doing the air surveillance on a home, not
the other way around.

Naturally, the ruling is frustrating for police, who feel too many
intrusions and steps are already needed to perform their jobs. "Every time
our hands are tied it's frustrating. We need a search warrant for
everything we do... We're always concerned when a tool in our toolbox has
been removed," said Deputy Chief Piukkala.

On the other hand, everything police officers do must meet the basic test
of law. Their actions must achieve a balance between the protection of
individual civil rights versus the vital role society asks them to fill in
fighting criminal activity. It's a test that's central to democracy and one
the police have failed in this particular case.