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Parliament should regulate use of drones on home soil: legal expert

In this Jan. 31, 2010 file photo, an unmanned U.S. Predator drone flies over Kandahar Air Field, southern Afghanistan, on a moon-lit night.

Kirsty Wigglesworth/THE ASSOCIATED PRESS

The air force will expand testing of drones over Canadian soil this year, giving itself – and potentially law-enforcement agencies – more eyes in the sky.

But a legal expert warns the emerging technology needs close study and clear restrictions when it's not being used to wage war.

Unmanned aerial vehicles or UAVs have become the weapon of choice for the U.S. in strikes against al-Qaida, and the Americans are stepping up their use along the Canadian border.

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Errol Mendes, a University of Ottawa law professor and former adviser to Paul Martin's government, says parliamentarians should have a close look at the emerging technology and consider the implications of their civilian use.

Mr. Mendes says lawmakers also need to consider whether drones should be armed.

Although the Canadian military used Israeli-made drones in Afghanistan for at least three years, their first use at home came last summer during an annual exercise in the Arctic.

The head of the country's domestic command, Lt.-Gen. Walter Semianiw, recently told a Senate committee more flights are scheduled for this year in the areas around Inuvik, N.W.T., and Churchill, Man.

"We know we need to use them, and the Canadian Forces from a capability point of view are moving ahead to ensure there is domestic capability as part of its UAV program in the future," Lt.-Gen. Semianiw testified.

The Americans are already using MQ-1 Predator drones to patrol its borders with both Canada and Mexico. The U.S. Congress approved a bill in February that requires the Federal Aviation Administration to develop regulations for the licensing of commercial drones by 2013, and police forces throughout the country are clamouring for their own.

Mr. Mendes says a tide is building and Canadian lawmakers need to get ahead of it.

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"This is going to be coming eventually because there is no doubt that patrolling by aerial means is far more effective than on the ground," he said.

Lt.-Gen. Semianiw said the Canadian military's use of drones has thus far been restricted to surveillance only in remote regions. They are not armed.

He said crowded airspace and existing legislation restricts their use over cities and noted those limits relate to the overall containment of the military's aid to the civilian power.

"You must remember that, in Canada, within the domestic construct, I do not have the right to be able to apply lethal force in Canada. That is the responsibility of the police," Lt.-Gen. Semianiw testified.

He raised the possibility of co-operating with law-enforcement agencies, but declined to say how that would take shape and under what circumstances.

"The question would be perhaps in the future whether we could work with the police forces to assist them by providing UAVs," he said.

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Mr. Mendes said that use of UAVs is where law-makers need to step in and define the rules, especially since military drones have a suite of surveillance technology, including infrared capabilities, that have a whole range of privacy implications.

Eight years ago, the Supreme Court of Canada ruled that police helicopter surveillance using infrared technology to detect marijuana grow-ops was a reasonable intrusion.

The U.S. legal community has been debating the issue, not only the Big Brother implications but the possibility of arming police drones.

Several American police departments are experimenting with small UAVs.

One of them, the Shadowhawk, can carry a 40 mm grenade launcher and a 12-gauge shotgun.

The manufacturer, Vanguard Defense Industries of Conroe, Texas, said it doesn't sell the armed version in the United States, although it has had interest from police for non-lethal munitions, such as tear-gas canisters.

"Ultimately, it's not that much of stretch to say this will come and there should be regulation," said Mr. Mendes.

Lt.-Gen. Semianiw told senators he couldn't foresee a circumstance where military drones would be armed over North American soil.

"The intent is that it is an (intelligence, surveillance and reconnaissance) platform that provides eyes and ears and the ability to take action on the ground is done by the police, not by the military," he said.

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