INFRARED SURVEILLANCE DOESN'T VIOLATE PRIVACY
OTTAWA - 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.
The decision is in contrast with the law in the United States, 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 marijuana growing operations, are "non-intrusive" and "mundane" in the information that they reveal.
The decision is a loss for handyman Walter Tessling, who said police violated his Charter of Rights protection against unreasonable search by unlawfully using an infrared aerial camera over his home near Windsor, Ont.
The ruling restores his conviction and sentence of 18 months in jail for being caught with 120 marijuana plants.
"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.
Despite Tessling's loss, his lawyer, Frank Miller, believes the Supreme Court has a pattern of siding with privacy rights over police powers.
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.
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 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.