The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
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Thursday, April 09, 2009
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17 (CanLII), an important privacy decision. The case considers whether it is an unreasonable invasion of privacy for the police to rummage through your trash without a warrant. Some may see the case as standing for carte blanche for the cops to pilfer your garbage, but I'm not sure it's really something to panic about. Justice Binnie, I think, carefully considered the test for unreasonable search and seizure under the Charter. Did the subject have a subjective expectation of privacy and was that expectation reasonable?
If you throw something out into the garbage, it is hard to say you've not abandoned it. You've given it up. You expect that it will probably be rummaged through by garbage-pickers, bottle collectors and in some cases it will be opened and sorted by your municipality. It really is a bit of a stretch to say that you expect that something you put in your trash will remain confidential in most cases. If you don't want it pilfered, get a shredder. Or wrap it in duct tape or encase it in cement. If you have an ecstasy lab in your house and you throw out evidence of that, can you really say that evidence should be excluded.
What I think may be problematic would be extending this too far in the civil (non-litigation) context. Maybe it will be cited to support clear garbage bags, which is something some municipalities are gunning for to enhance compliance with trash sorting rules. What's in your garbage is a little window into your lifestyle that has nothing to do with criminality. Dozens of chip bags? Empty chocoate wrappers? You're on your way to a heart-attack. Maybe your insurance company has a right to your garbage?
But I think I agree with Abella J's dissenting (but concurring in the result) judgment that there is a diminished expectation of privacy in garbage and the cops should have at least a reasonable suspicion before rooting through your trash.
Maybe I'm getting jaded in my old age.
Here's the headnote of the case:
Constitutional law — Charter of Rights — Search and seizure — Privacy interest — Abandonment — Police taking garbage bags placed for collection at edge of accused’s property without warrant — Whether police breached accused’s right to be free from unreasonable search and seizure — Whether accused abandoned his privacy interest in contents of garbage bags when he placed them at edge of his property for collection — Canadian Charter of Rights and Freedoms, s. 8.
The police suspected that P was operating an ecstasy lab in his home. On several occasions, they seized bags of garbage that P had placed for collection at the rear of his property adjacent to a public alleyway. The police did not have to step onto P’s property to retrieve the bags but they did have to reach through the airspace over his property line. The police used evidence of criminal activity taken from the contents of P’s garbage to obtain a warrant to search P’s house and garage. More evidence was seized during the search. At his trial, P argued that the taking of his garbage bags by the police constituted a breach of his right guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. The trial judge held that P did not have a reasonable expectation of privacy in the items taken from his garbage and, therefore, the seizure of the garbage bags, the search warrant and the search of P’s dwelling were lawful. He admitted the evidence and convicted P of unlawfully producing, possessing and trafficking in a controlled substance. A majority of the Court of Appeal upheld the convictions.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish, Charron and Rothstein JJ.: The police did not breach P’s right to be free from unreasonable search and seizure. When P’s conduct is assessed objectively, he abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public. P did everything required to rid himself of the items taken as evidence. His conduct was incompatible with any reasonable expectation of confidentiality. Neither the search of the contents of P’s garbage nor the subsequent search of P’s dwelling breached s. 8 of the Charter. The evidence seized in both searches was admissible at P’s trial.  [12‑13]
To describe something as “garbage” tends to presuppose the point in issue, namely whether P had any continuing privacy interest in it. It seems that while he had no further interest in physical possession he had a continuing interest (viewed subjectively) in keeping private the information embedded in the contents. In such a case, however, the question becomes whether he so dealt with the items put out for collection in such a way as to forfeit any reasonable expectation (objectively speaking) of keeping the contents confidential, i.e. whether there had been abandonment. 
Expectation of privacy is a normative standard. Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long‑term consequences of government action for the protection of privacy. 
In assessing the reasonableness of a claimed privacy interest the Court is to look at the “totality of the circumstances” and this is so whether the claim involves aspects of personal privacy, territorial privacy, or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context and first involves an analysis of the nature or subject matter of the evidence in issue. Here both P and the police rightly regarded the subject matter to be information about what was going on inside his home. The court must then consider whether the claimant had a direct interest in the evidence and a subjective expectation of privacy in its informational content. The “reasonableness” of that belief in the totality of the circumstances of a particular case is to be tested only at the second objective branch of the privacy analysis.  
Abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right that he or she had ceased to have a reasonable expectation of privacy with regard to it at the time it was taken by the police or other state authority. Being an inference from the claimant’s own conduct, a finding of abandonment must relate to something done or not done by that individual, and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information”.  
The reasonableness of an expectation of privacy varies with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. In this case, P’s garbage was put out for collection in the customary location for removal at or near his property line and there was no manifestation of a continuing assertion of privacy or control. Territorial privacy is implicated in this case because the police reached across P’s property line to seize the bags; however, the physical intrusion by the police was relatively peripheral and, viewed in context, is better seen as pertaining to a claim of informational privacy. P’s concern was with the concealed contents of the garbage bags which, unlike the bags, were clearly not in public view. [36‑37] [39-41] [44-45]  
Objectively speaking, P abandoned his privacy interest in the information when he placed the garbage bags for collection at the back of his property adjacent to the lot line. He had done everything required of him to commit the bags to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in the public alley way, including street people, bottle pickers, urban foragers, nosey neighbours and mischievous children, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police. However, until garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition. It could not be said to have been unequivocally abandoned if it is placed on a porch or in a garage or within the immediate vicinity of a dwelling. Abandonment in this case is a function both of location and P’s intention. [53‑55] 
Since P had abandoned his garbage before it was seized by the police, he had no subsisting privacy interest at the time it was seized. The police conduct was objectively reasonable. P’s lifestyle and biographical information was exposed, but the effective cause of the exposure was the act of abandonment by P, not an intrusion by the police into a subsisting privacy interest.  
Per Abella J.: Concurring in the conclusion that no Charter violation occurred but disagreeing with the characterization of the privacy issues at stake. The home is the most private of places. Personal information emanating from the home that has been transformed into household waste is entitled to protection from indiscriminate state intrusion. Household waste left for garbage disposal is “abandoned” for a specific purpose — so that garbage will reach the waste disposal system. What has not been abandoned is the homeowner’s privacy interest attaching to personal information. Individuals do not intend that this information, such as medical or financial information, will be generally accessible to public scrutiny, let alone to the state.  78]  [87-89]
The fact that what is at issue is waste left out for collection, however, argues for a diminished expectation of privacy. But the state should have at least a reasonable suspicion that a criminal offence has been or is likely to be committed before conducting a search. In this case, the evidence amply supported such a suspicion.  [89‑91]
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