Pubdate: Tue, 28 Jan 2003
Source: Globe and Mail (Canada)
Page: A1
Copyright: 2003, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin, Justice Reporter

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.
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MAP posted-by: Jay Bergstrom