Pubdate: Wed, 07 Apr 2004
Source: Windsor Star (CN ON)
Copyright: The Windsor Star 2004
Contact:  http://www.canada.com/windsor/
Details: http://www.mapinc.org/media/501
Author: Ellen van Wageningen

TOP COURT TO PONDER HIGH-TECH SNOOPING

Marijuana Case Involving Kingsville Man Tests Privacy

A drug case involving a Kingsville man that could restrict police use of 
infrared heat-sensing cameras and similar technology is to be heard by 
Canada's top court next week.

"It's an important privacy case, in my opinion. It's not about drugs. It's 
about privacy," said Windsor lawyer Frank Miller, who is representing 
Walter Tessling in the Supreme Court case.

April 16 hearing

The Canadian Civil Liberties Association, which has been granted intervenor 
status at the April 16 hearing, agrees. "What you're dealing with is 
expanded technological ability to invade personal privacy," said Alan 
Borovoy, the association's general counsel.

"With every advance we don't want to feel that people become ? more 
vulnerable to bypassing safeguards that our law has devised to ensure these 
things are handled within certain appropriate limits."

That means police should get a search warrant to use infrared heat-sensing 
cameras to try to determine if people are growing marijuana in their homes, 
he said.

The Ontario Court of Appeal in January 2003 acquitted Tessling of charges 
related to a large quantity of marijuana found in his home by police in May 
1999. The court ruled the police violated his privacy rights by not getting 
a search warrant before using Forward Looking Infra-Red (FLIR) aerial 
cameras to detect heat coming from buildings on Tessling's property.

The appeal court found FLIR allowed police to obtain "more information 
about what goes on inside a house than is detectable by normal observation 
or surveillance."

The federal attorney general, backed by those from Ontario and Quebec, is 
asking the Supreme Court to overturn that ruling.

"Our position is that the FLIR camera doesn't capture anything that's 
private, therefore it's not a search or seizure" that requires a warrant, 
said Jim Leising, director of federal prosecutions for Ontario.

"Clearly any technological device that gives you the functional equivalent 
of being in the house would be governed by the warrant provisions," he 
said. "But this isn't a device that does anything like give you the 
functional equivalent of being inside.

Hot spot

"All it can ever tell you is that there is a spot at the exterior of your 
house which is hotter than any other spot on your house?. It can never tell 
you what the cause of the heat is."

"The FLIR is a very valuable tool for law enforcement in that it allows 
them in many cases to confirm whether they have sufficient information or 
not to apply for a search warrant in (marijuana) grow house cases," he said.

The intentions of police and prosecutors may be good, but they have to be 
weighed against the privacy rights of individuals, Borovoy said.

Miller said he feels the Supreme Court's decision could apply not just to 
FLIR but to other cutting-edge snoop technology used by law enforcement.

"I'm getting the feeling they want to initiate something that's good for 
now and for the future," he said.

"They're going to have to make it meaningful."

A growing array of devices developed for military and international 
intelligence purposes are being tested and used by police agencies, Miller 
said.

If they want to use them to spy on people, they should get search warrants 
or go to Parliament for a change in the law, he said.
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MAP posted-by: Jay Bergstrom