Reduction to Absurdity: Reasonable Expectations of Privacy and the Need for Digital Enlightenment

Abstract

This article seeks a deeper understanding of privacy in the digital age through an examination of a phenomenon the authors call "information emanation." Focusing on Canadian jurisprudence involving heat and odour emanations, the authors examine the current approaches of Canadian courts in decisions about the 'reasonable expectation of privacy'. The authors focus on three judicial trends that pose serious risks to privacy: 1) the tendency to equate different kinds of emanations and conclude that information emanations into public spaces never attract a reasonable expectation of privacy; 2) a reductionist approach to information privacy, which obscures the deep social significance of police investigative techniques; and 3) the adoption of a non-normative approach to ‘reasonable expectations’ ushering in a shift in privacy discourse away from democracy, rights and duties towards an inquiry about digital technology and standards of police practice. The authors conclude that while the Supreme Court of Canada attempted to guard against many of these risks, recent jurisprudence indicates an ongoing threat of backslide to the reductionist approach to informational privacy, especially in future cases involving emerging digital technologies.

Keywords: reasonable expectation of privacy, informational privacy, emanations, surveillance, Canadian Charter of Rights and Freedoms, search and seizure