RULING JEOPARDIZES POT SEARCHES

A recent appeals court decision in Ontario regarding infra-red technology
used to seek out marijuana grow operations may have an impact on court
cases in British Columbia, say two local lawyers.

"Yes, this is a significant decision," said Tom Bishop, a federal Crown
prosecutor who handles many of the drug cases in Campbell River.

On Monday the Ontario Court of Appeal ruled that police will now have to
obtain a search warrant before they can use infra-red aerial cameras to
investigate possible indoor pot growing operations.

The cameras, known as Forward Looking Infra-Red (FLIR), are used widely by
police across North America to detect heat concentrations which may be
caused by the high-intensity lights used to grow indoor marijuana.

If the cameras detect unusual amounts of heat emanating from a building,
this information can be used to help obtain a search warrant for the residence.

"Yes, we do use them but not on a daily basis," said Staff Sgt. Doug Greep
of the Campbell River RCMP. "We'll have to see where this (decision) takes us."

In its decision, the Ontario Court of Appeal overturned a lower court
conviction and acquitted a Windsor man, Walter Tessling, who had been
sentenced to 18 months in prison from growing pot. Police had obtained a
search warrant after first using information gathered from aerial FLIR
surveillance.

"FLIR technology discloses more information about what goes on inside a
house than is detectable by normal observation or surveillance," wrote
Justice Rosalie Abella. "In my view, there is an important distinction
between observations that are made by the naked eye or even by enhanced
aids, such as binoculars, which are in common use, and observations which
are the product of technology."

Doug Marion is a Campbell River lawyer who has defended people accused of
growing marijuana and he believes the Ontario court made the right decision.

"My view has always been it is intrusive and is an invasion of privacy," he
said Wednesday outside a Campbell River courtroom. "It's unclear how
sensitive the police equipment is and in my view it shows activity inside
the home that is not in plain view. That being the case, you should have a
warrant if you want to do it."

Bishop doesn't know just yet if he will advise police to obtain a search
warrant before using FLIR. The point of using FLIR, he said, is to
supplement existing information in order to get a search warrant.

In addition, he said, the Court of Appeal for British Columbia has made at
least two decisions regarding the use of FLIR cameras and those would take
precedence over the Ontario decision.

In the 1996 decision Regina versus Eric William Hutchings, the B.C. Court
of Appeal ruled that police had every right to use aerial FLIR information
to obtain a search warrant which led police to seizing marijuana and
growing equipment which Hutchings had in his Yarrow barn.

"The helicopter did not fly directly over the subject property, nor did it
disclose activities within the barn. It only indicated the presence of heat
emanating from within the building," wrote Chief Justice McEachern in his
October 1996 decision.

However, in a 2001 Supreme Court of British Columbia decision, Regina
versus Teuvo Kuitenen and Eugene Ostiguy, Justice Oppal ruled that an
arrest warrant invalid because police flew too low over a home in obtaining
FLIR information.

"The accused's right to privacy was clearly violated by the inordinately
low altitude of the flights," he wrote in his judgment. "The police
admitted that the altitude of the fly-overs was so low that they could see
one of the parties urinating. This was a private residence. The fly-overs
together with the use of the intrusive technology constituted an unlawful
search and seizure."

So what constitutes too low or high enough for aerial FLIR surveillance?
Good question said Bishop who pointed out that the big bust last December
of an underground marijuana grow operation on Loveland Bay Road involved
FLIR surveillance.

Bishop said the difference between the various court rulings is
surveillance of a home compared to a building or structure. He said B.C.
courts have always strongly upheld a person's Charter right to privacy
within their home.

The British Columbia rulings will take precedence over the Ontario decision
in B.C. courtrooms, said Bishop but he suspects the final decision about
the use of FLIR will have to be made by the Supreme Court of Canada.

"It's likely to spark debate," said Bishop. "This is not a rare occurrence
for courts in different provinces to disagree =AD it's a matter of personal
views. You have two courts with contrary conclusions =AD it's interesting."

Marion said he may use the Ontario court ruling in some defences and he
said there is one case in Courtenay where it may be effective in helping a
client.

"I can see it being used in cases coming up =AD I'm going to advocate the
courts to follow the Ontario decision as being more consistent with the
Charter of Rights," he said. "This puts B.C. and Ontario in opposition but
not completely though. It's something the Supreme Court of Canada will have
to resolve."