Pubdate: Sat, 20 Nov 2004
Source: Toronto Star (CN ON)
Copyright: 2004 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Bob Aaron
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/raids.htm (Drug Raids)

SEARCH HEATS UP HOME PRIVACY CONCERNS

The Supreme Court of Canada's decision in the Walter Tessling case is a 
blow to the right of personal privacy for Canadians.

It's also in stark contrast to a decision of the United States Supreme 
Court, which produced the opposite result on a virtually identical set of 
facts.

Last month, the Supreme Court of Canada ruled an infrared image of a house 
taken from an airplane without a search warrant does not intrude on a 
homeowner's privacy rights.

Reversing a ruling of the Ontario Court of Appeal, our nation's highest 
court ruled the photography did not violate the Charter right to be free 
from unreasonable search and seizure.

In 1999, the RCMP received a tip that Walter Tessling was involved in the 
growing and trafficking of marijuana in his Windsor home. They used an 
airplane with an infrared camera to fly over Tessling's house.

The camera takes an image of the thermal energy or heat radiating from the 
outside of a building. It can detect heat sources inside a home, but can't 
identify the exact nature of the source or see inside the building.

The heat could be from a sauna, hot tub, overheated toaster or a halide 
lamp used to grow marijuana. The camera can't tell the difference.

Based on the thermal images and sketchy information from two informants, 
the RCMP were able to obtain a search warrant for the house and raided it. 
They found marijuana worth at least $15,000, along with scales, and several 
guns.

Tessling's conviction at trial was overturned by the Ontario Court of 
Appeal on the basis the camera technology discloses more information about 
what goes on inside a house than is detectable by normal observation. In my 
opinion, Justice Abella was correct when she wrote that members of the 
public have a reasonable expectation of privacy that prohibits the 
government from using cameras to determine what is going on inside the house.

That reasoning was reversed in Ottawa. Writing for the Supreme Court, 
Justice Ian Binnie wrote that the heat profile did not expose any intimate 
details of Tessling's lifestyle or part of his "core biographical data." It 
only showed that some activities in the house generate heat.

Given the "totality of the circumstances," the court ruled, the technology 
did not intrude on the reasonable sphere of privacy of the homeowner.

The Supreme Court acknowledged its decision differed from that of the 
United States Supreme Court in a 1991 case.

Both section 8 of the Canadian Charter of Rights and Freedoms, and the 
Fourth Amendment to the U.S. Constitution, guarantee citizens the right to 
be secure from unreasonable searches and seizures.

But the U.S. ruled the infrared camera search was unconstitutional, based 
on the "sanctity of the home."

The Canadian court declined to follow the reasoning of the U.S. judges.

The one saving grace to last month's decision was that the court left open 
the possibility that in future it might revisit the issue as technology 
develops.

"Few things are as important to our way of life," Justice Binnie wrote, "as 
the amount of power allowed the police to invade the homes, privacy and 
even the bodily integrity of members of Canadian society without judicial 
authorization."

The court added that gathering of the heat distribution information by the 
police did not offer an insight into Tessling's private life, and its 
disclosure scarcely affected his "dignity, integrity and autonomy."

Bob Aaron is a Toronto real estate lawyer. 
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