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Top Court Frees Police To Use Infrared Devices: Finding Marijuana Grow-ops Through Thermal Equipment Acceptable, Judges Rule.

By admin | October 30, 2004

The Globe and Mail
By Kirk Makin
Saturday, October 30, 2004 – Page A12.

The Supreme Court of Canada put marijuana enforcement ahead of privacy yesterday, freeing police to use sophisticated heat-detection equipment to ferret out indoor growing operations.

The 7-0 decision reversed an Ontario Court of Appeal ruling that had urged a more liberal attitude toward marijuana and the right to be free of unfair search and seizure.

It provided a jolting welcome to the Supreme Court for newly appointed Madam Justice Rosalie Abella, author of the lower-court ruling her new colleagues unanimously overturned.

“The community wants privacy, but it also insists on protection,” Mr. Justice Ian Binnie wrote. “Safety, security and the suppression of crime are legitimate countervailing concerns.”

In the finding, which runs counter to a 2001 U.S. Supreme Court decision, Judge Binnie restored an 18-month sentence for marijuana trafficking and weapon-possession convictions against Walter Tessling.

The Windsor handyman’s hydroponic marijuana operation was detected by police flying overhead with thermal infrared equipment.

Peter Zaduk, a Toronto lawyer who has defended scores of grow-op charges, predicted that police forces will silently rejoice. “I can see them systematically flying over whole neighbourhoods,” he said. “Their mindset is that marijuana grow houses are an epidemic. They are obsessed with the idea of them being on every block.

“I can really see there being a big impetus to buy helicopters and put everybody’s house under surveillance, including those in Rockcliffe [a tony Ottawa district], where Supreme Court judges live.”

Constitutional expert Mahmud Jamal praised the ruling as forging “a distinctly Canadian balance between privacy and protection.

“One cannot help but notice that Judge Binnie wrote all three Charter rulings released this week, all were unanimous, and in all he sided with the government,” Mr. Jamal said.

“Clearly, he is now an intellectual leader of the court, and has already built a legacy as one of the great Supreme Court justices of our time.”

The Tessling case turned on a tricky legal point: Is heat produced inside the home entitled to a high level of privacy after it seeps into the outside world?

Led by Judge Abella, the Ontario Court of Appeal panel reasoned that escaping heat is a product of activity taking place inside the home — and that an individual’s home is rightly viewed as his castle.

She also noted that a growing consensus that marijuana is not a particularly harmful drug makes the idea of tossing out illegally gained evidence more palatable.

However, Judge Binnie said the expectation of privacy enjoyed by a marijuana cultivator does not compare with that which an average citizen has for his body or home.

“Few people think to conceal their home’s heat-loss profile, and would have difficulty doing so if they tried,” he said. “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.”

Known as forward-looking infrared, the heat-detection equipment at the heart of the case is simply a method of gaining information about a home that might or might not indicate what is going on inside, he said. It is not enough in itself for police to obtain a search warrant, Judge Binnie said.

“It cannot even ‘see’ through a transparent window,” he observed. “It is not X-ray technology.”

Judge Binnie took pains to stress that his ruling is not intended to erode genuine privacy issues in an era of increasingly intrusive state interest.

Courts must be careful not to downgrade privacy interests simply because many people have come to believe many of their conversations and functions may be monitored, he added.

The court added that Judge Abella’s apprehensions about future Orwellian uses of heat-detection technology are well placed, but can be tested only when appropriate cases come along.

“Where we differ, perhaps, is that in my view, such technology must be evaluated according to its present capability,” Judge Binnie said.

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