PRIVACY RULING REJECTS INFRARED DRUG SEARCH

Your home is your castle -- right down to the heat that leaks out of it.

The Ontario Court of Appeal extended the right of privacy to intrusive
technological advances yesterday, acquitting a man whose hydroponic
marijuana operation was detected by police flying overhead with infrared
equipment.

"The nature of the intrusiveness is subtle, but almost Orwellian in its
theoretical capacity," the court said in a 3-0 ruling.

It said police must henceforth obtain search warrants for these flyovers,
since the heat they measure may emanate from other private activities that
generate surges of energy.

"Some perfectly innocent internal activities in the home can create the
external emanations detected and measured by Forward Looking Infra-Red
aerial cameras," Madam Justice Rosalie Abella wrote.

"Many of them, such as taking a bath or using lights at unusual hours, are
intensely personal."

She found a clear distinction between police observation with the naked eye
or binoculars and more threatening forms of intrusion that are the product
of technology.

The ruling erased an 18-month sentence against Windsor handyman Walter
Tessling, whose home contained enough plants to yield many kilograms of
marijuana.

The court noted that in view of an evolving "public, judicial and
political" recognition that marijuana is a less serious narcotic nowadays,
it was preferable to exclude the ill-gotten evidence.

Writing on behalf of Mr. Justice Dennis O'Connor and Mr. Justice Robert
Sharpe, Judge Abella said Mr. Tessling must also be acquitted of possessing
several unlicensed handguns.

RCMP conducted the aerial surveillance in 1999, after getting a tip from an
informant who was unfamiliar to them that Mr. Tessling and a friend were
producing and trafficking in marijuana.

Defence counsel Frank Miller said yesterday's ruling under the Charter of
Rights signals that courts are aware of the threat technology poses to
civil liberties.

"As far as I'm concerned, this is the essence of freedom," he said in an
interview. "Why should the police know whether someone is taking a sauna,
firing a kiln, growing orchids or growing marijuana?

What is novel is that this case involves what is known as 'off-the-wall
technology' -- where inferences can be drawn about what is going on in your
home without the police going anywhere near it."

Police in the Tessling case were told by Ontario Hydro officials that there
was no unusual hydro usage at his home. Still suspicious, they flew over
using equipment.

Crown counsel James Leising and Moiz Rahman defended the evidence on the
basis that any violation of Mr. Tessling's privacy interest was trivial.

However, the court said that Mr. Tessling clearly had a reasonable
expectation of privacy, and that it was unreasonably violated.

"While I accept that technically what is being scrutinized is heat from the
surface of a home, it is impossible to ignore the fact that those surface
emanations have a direct relationship to what is taking place inside the
home," it said.