Pubdate: Sat, 30 Oct 2004
Source: Windsor Star (CN ON)
Copyright: The Windsor Star 2004
Contact:  http://www.canada.com/windsor/windsorstar/
Details: http://www.mapinc.org/media/501
Author: Windsor Star, News Services
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/find?216 (CN Police)

COPS CAN USE INFRARED TO FIND GROW-OPS

Court: Pot Grower Loses Fight For Privacy

Police tactics to root out marijuana grow-ops by using infrared aerial
surveillance do not contravene the constitutional right to privacy in
one's home, the Supreme Court of Canada ruled Friday in a decision
that will send a Kingsville man back to jail.

The decision is a departure from the law in the U.S. where the high
court ruled three years ago that it is unconstitutional for police to
use the thermal heat cameras without a judge's warrant because of the
need to protect the home "from prying government eyes."

The Canadian Supreme Court unanimously concluded that the cameras,
which are used to detect external "hot spots" that may indicate the
presence of electricity-gobbling grow-ops, are "non-intrusive" and
"mundane" in the information that they reveal.

The decision is a loss for Kingsville handyman Walter Tessling, who
said police violated his Charter of Rights protection against
unreasonable search and seizure by unlawfully using an infrared aerial
camera over his home.

"I'm disappointed," said Tesolin's lawyer Frank Miller. "We were
hoping the Crown's appeal would be dismissed."

But despite the loss Miller said the decision upholds Canadians' right
to privacy while deeming the technology used by the RCMP at the time
not sufficient to constitute a breach of privacy.

"While we lost the appeal it further entrenches privacy rights in
Canada," said Miller.

The ruling restores Tesolin's conviction and sentence of 18 months in
jail for being caught with 120 marijuana plants worth an estimated
$15,000 to $22,000.

"He has to go to jail," said Miller.

"There's no way around it. That's the way it is. I feel terrible for
him."

Miller was attempting to contact his client Friday night to relay the
news.

The Supreme Court decision said Tesolin's privacy rights were not
compromised.

"Living as he does in a land of melting snow and spotty home
insulation, I do not believe that the respondent had a serious privacy
interest in the heat patterns on the exposed external walls of his
home," Justice Ian Binnie wrote in the 7-0 decision.

"Safety, security and the suppression of crime are legitimate
countervailing concerns."

Police, who are already losing the war against hydroponic marijuana
operations, warned the Supreme Court that requiring warrants to use
heat-sensing cameras would lead to "investigative gridlock."

The Supreme Court rejected a ruling from the Ontario Court of Appeal
that the surveillance technique merits a warrant because the detected
heat may come from "perfectly innocent" private activities, such as
taking a bath or using lights at unusual hours.

"The nature of the intrusion is subtle but almost Orwellian in its
theoretical capacity," said the 2003 ruling, authored by Justice
Rosalie Abella, who was then on the appeal court but has since been
promoted to the Supreme Court.

Binnie confined the court's ruling to the infrared technology as it
exists today and said that any advancements will have to be dealt with
by the courts "step by step."

Miller also noted that new infrared technology that exists in the U.S.
- -- which can detect people moving in their homes -- would probably not
survive a Canadian legal challenge.

"The technology the police were using five years ago was out of date
then," said Miller.

"More invasive technology that tells you more will have to be
revisited."

He based his conclusion on the tempered nature of the Supreme Court
ruling, which repeatedly stressed that privacy is paramount and "that
the spectre of the state placing our homes under technological
surveillance raises extremely serious concerns."

The ruling builds on another leading Canadian case on the right
against unreasonable searches.

The Supreme Court ruled 10 years ago that police can freely obtain
electricity bills in their investigations because they reveal little
about personal lifestyles and, therefore, do not meet the test for
privacy protection.
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MAP posted-by: Derek