The RCMP received a tip that Tessling was involved in the
production and trafficking of marijuana. They contacted Ontario Hydro and
verified that electricity consumption at the property was normal. Visual
surveillance revealed nothing suspicious.
Ultimately, police flew over the house in an RCMP aircraft and used a Forward
Looking Infrared (FLIR) camera to conduct a "structure profile" of the
property.
The FLIR camera takes an image of the thermal energy or heat radiating from
the outside of a building. It can detect heat sources within a home depending on
the location of the source and how well the house is insulated, but it cannot
identify the exact nature of the source or see inside the building.
Essentially, the camera is a device that photographs heat instead of light.
The use of FLIR technology assumes that while heat usually emanates evenly
from a building, the halide lights used in marijuana grow operations give off an
unusual amount of heat.
In this case, the camera indicated heat output patterns that could indicate a
marijuana growing operation. This information was used to obtain a warrant to
search Tessling's home, where police found a quantity of marijuana, scales and
freezer bags.
When the trafficking and other charges got to trial, Tessling brought an
application to exclude from evidence all items found in the house on the basis
that the FLIR search was unlawful and violated his Charter privacy rights.
Section 8 of the Charter of Rights and Freedoms states, "Everyone has
the right to be secure against unreasonable search or seizure."
At trial, Mr. Justice Gordon Thomson stated, "It is well recognized that
the home should be granted the highest degree of protection from unwanted state
intrusions."
Nevertheless, he found that the FLIR technology, if properly used in a valid
search warrant, "does not constitute an unwarranted transgression or
intrusion into the reasonably expected privacy of an occupant of a
residence."
Tessling was convicted and appealed on the basis that the search was illegal.
In the Ontario Court of Appeal, Madame Justice Rosalie Abella tossed out the
search warrant and the convictions, stating that the FLIR technology constituted
an unreasonable intrusion into Tessling's privacy for two reasons.
First, she said, the camera revealed information about activities that are
carried on in the privacy of the home. Second, she ruled that the FLIR
technology discloses more information about what goes on inside a house than is
detectable by normal observation or surveillance.
According to the Ontario Court of Appeal, most members of the public have a
reasonable expectation of privacy that would prohibit the government from using
infrared aerial cameras to measure the heat coming from activities inside
private homes as a way of trying to figure out what is going on inside.
In the United States, the Fourth Amendment to the Constitution provides
citizens the right "to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures."
In 1991, U.S. federal agents used infrared technology to scan the house of
Danny Kyllo in Florence, Oregon. Based partly on the thermal images, the agents
obtained a search warrant and soon found a marijuana growing operation with more
than 100 plants.
Ten years later, the case finally wound up in the Supreme Court of the United
States. In a 5-4 decision, the court found that the use of FLIR technology
without a search warrant was an unreasonable search without a warrant. It struck
out the evidence obtained by the thermal images and the subsequent search
warrant.
As many as 500 Canadian cases now before the courts could be affected by the
Tessling decision. The federal Crown attorney is seeking leave to appeal the
case to the Supreme Court of Canada. Personally, I hope the Ottawa Supremes will
reach the same conclusion as their counterparts in Washington and in the Ontario
Court of Appeal.
What do you think?
Should the Supreme Court of Canada come down on the side of personal privacy,
or are the police justified in using thermal imaging cameras, directional
microphones and other technology to infringe on the privacy of a home without a
warrant?
E-mail your letters to: newhomes@thestar.ca
-- or fax them to 416-869-4410.
Bob Aaron is a Toronto real estate lawyer. He can be reached by e-mail at: bob@aaron.ca
-- or fax 416-364-9366.
Visit: http://www.aaron.ca
Note: RCMP measured thermal energy. Marijuana trafficking charges laid.
Source: Toronto Star (CN ON)
Author: Bob Aaron
Published: June 07, 2003
Copyright: 2003 The Toronto Star
Contact: lettertoed@thestar.com
Website: http://www.thestar.com/
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