The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.

Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.

The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.

As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.

Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.

Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.

The Court unanimously decided that it had not.

The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.

Thus, the case was was essentially resolved as a property law question.

The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:

In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as  fatal to a reasonable expectation of privacy.  He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”

[Patrick, at para. 22.]

Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:

In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure.  This purpose is not engaged in the case of property which the accused has discarded.”

[Patrick, at para. 23.]

A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.

Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.

The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:

[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence.  It is simply the inevitable consequence of the normal functioning of the human body.  The police are only able to profit from the production of the samples because the accused is continuously under their surveillance.  For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples?  He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”

[Stillman, at paras. 58-59.]

Why is the custody versus out of custody distinction so significant?

The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.

Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.

(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)

Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:

Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.).  As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle.  Many of us may not wish to disclose these things to the public generally or to the police in particular.

…

[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302).  … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.

[Patrick, at paras. 30, 40; emphasis mine.]

So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:

The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate.  It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.

[Patrick, at para. 54.]

Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.

The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:

Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal.  To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.

…

[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection.  The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.

[Patrick, at paras. 64, 73.]

There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.

Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny.  She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].

Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime.  Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance.  Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is more than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.

“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion.  Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal.  Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”

[Abella J., concurring, in Patrick, at para. 77.]

Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.

Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.

Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.