Emanations, Snoop Dogs and Reasonable Expectation of Privacy

"Emanations, Snoop Dogs and Reasonable Expectation of Privacy" (2007) 52:3 Criminal Law Quarterly 392-432

41 Pages Posted: 18 Nov 2008

See all articles by Ian R. Kerr

Ian R. Kerr

University of Ottawa - Common Law Section

Jena McGill

University of Ottawa - Common Law Section

Date Written: 2007

Abstract

Recognizing that valuable personal data emanates from our electronics, our personal effects, our homes and even our bodies, this article examines the notion of "information emanation." Focusing on current jurisprudence involving heat emanations from homes and odour emanations from knapsacks, the authors examine Canadian courts current approaches to information emanation in their decisions about the 'reasonable expectation of privacy' in the war against drugs. In anticipation of the Kang Brown and A.M. hearing at the Supreme Court of Canada, this article illuminates five main points. First, it contends that the majority of snoop dog decisions in Canadian courts have been wrongly decided; relying on an inappropriate use of judicial analogy that stems from a misreading of Tessling. Second, it warns against an excessively reductionist approach to informational privacy adopted in many recent reasonable expectation of privacy cases. Third, it warns against a non-normative approach to 'reasonable expectations' that is also gaining currency in several provincial courts across Canada. It suggests that the 'reasonable expectations' test has become a strange kind of factual inquiry. Fourth, the article proposes a different reading of Tessling, one that is better suited to the snoop dog cases and, perhaps more importantly, for subsequent application in cases concerning emerging high tech surveillance. Finally, it points to the future, suggesting that A.M. and Kang Brown are not just about snoop dogs; these two cases foreshadow the future of emanation information in a networked society.

The authors conclude that the resolution of the snoop dog cases will not end the debate that started well over a decade ago. The authors argue that courts must confront the social implications of informational privacy much more deeply than they have, interrogating its meaning in an empirical universe of information emanation. The article suggests that a failure to clarify Tessling in the snoop dog cases and in the broader context of ubiquitous information emanation, especially alongside the maintenance of reductionist, non-normative approaches to informational privacy across Canadian courts, could seriously diminish the privacy rights of Canadians in a manner that the Supreme Court of Canada has until now been very careful to guard against.

Keywords: reasonable expectation of privacy, informational privacy, emanations, Kang Brown, A.M., Tessling, sniffer dogs, surveillance, search and seizure

Suggested Citation

Kerr, Ian R. and McGill, Jena, Emanations, Snoop Dogs and Reasonable Expectation of Privacy (2007). "Emanations, Snoop Dogs and Reasonable Expectation of Privacy" (2007) 52:3 Criminal Law Quarterly 392-432. Available at SSRN: https://ssrn.com/abstract=1302546

Ian R. Kerr (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 (Phone)

Jena McGill

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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