The saying "one man's trash is another man's treasure" has particular resonance given a recent ruling by the Supreme Court of Canada. On April 9, 2009, in a 7-0 decision, the Supreme Court found that an individual who had placed garbage bags for collection at the rear of his property had abandoned his privacy interest in the contents of the bags with them at the curb.
Background – What Is A Person Really Throwing Away When Tossing Out The Trash?
Police suspected that Russell Stephen Patrick was operating an ecstasy lab from his basement. Accordingly, on numerous occasions, they seized garbage bags placed just inside of Patrick's property line. Partially on the basis of the contents of the garbage bags, the police gathered enough evidence to obtain a search warrant for Patrick's home and, as a result, found sufficient evidence to arrest and charge him with production, possession and trafficking of a controlled substance.
Despite the fact that the garbage bags were within Patrick's property line, and despite his contention that the manner in which the evidence was collected breached his right to be free from unreasonable search and seizure pursuant to section 8 of the Canadian Charter of Rights and Freedoms, the trial judge found that Patrick did not have a "reasonable expectation of privacy in the items seized from his garbage." Consequently, the search warrant issued was deemed to be valid and the search of Patrick's house and garage was upheld as lawful. The Alberta Court of Appeal agreed with the decision of the trial judge and dismissed the appeal. Justice Ritter, for the Majority, concluded that a "reasonable person would not expect that garbage is secure and private, and would conclude that garbage is not obviously private in nature."
Reasonable Expectation Of Privacy
Justice Ritter's conclusion, however, is not necessarily as obvious as he purports. Rather, it is reasonable to presume that many Canadians would expect that the personal items which they dispose of everyday will remain private or at least will not be subject to the unfettered review by the police and other government agencies. A decision to put household waste out for transport to a waste facility is not equivalent to a conscious decision to dispose of one's privacy interests in such waste. It is for this reason that the decision of the Supreme Court to deny Patrick's appeal is particularly significant.
Justice Binnie, speaking for the Majority, determined that since Patrick abandoned his privacy interest in the contents of the garbage bags before the police gathered the evidence, by the time the police intervened there was no viable privacy interest left to protect. Accordingly, while "lifestyle and biographical information was exposed," the "effective cause of the exposure was the act of abandonment by the appellant, not an intrusion by the police into a subsisting privacy interest."
Although Justice Abella concurred with the Majority decision that no violation of the Charter of Rights and Freedoms occurred, the manner in which she characterized the privacy issues in R. v. Patrick differs from the Majority, and is more practical and presumably more consistent with the manner in which most Canadians perceive their own privacy interests. According to Justice Abella, personal information which is derived from one's home and turned into household waste is entitled to protection from arbitrary state intrusion and should not "automatically lose its 'private' character simply because it is put outside for garbage disposal." Furthermore, she was of the view that before one's personal information can be searched and accessed "there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed." Justice Abella found that this reasonable suspicion was present based on the facts of the case.
Conclusion
The Supreme Court has decided that there does not exist an objectively reasonable expectation of privacy in household waste set out for collection near one's home. With this in mind, the decision in R. v. Patrick illustrates the importance of taking control of one's own privacy interests and taking steps to safeguard one's private information as much as possible. Although Patrick was engaging in criminal activity, the finding of the Supreme Court in this case is relevant to all Canadians because on a daily basis many Canadians presumably dispose of items that they want and intend to keep private, such as credit card bills, bank statements and pay slips. For this reason, Justice Abella's reasons make more sense because she directly linked her arguments to Patrick's suspected criminal activity.
This decision also has implications for Canadian businesses and owners of those businesses. Countless amounts of personal information are disposed of on a daily basis by businesses, in the form of information pertaining to banking, finances, clients, customers and employees, to list a few examples. Accordingly, this decision elicits legitimate concern that events similar to those described in R. v. Patrick can occur in the business context. With this in mind, shredding of documents which contain personal information is an important practice for businesses to adopt, to ensure that such documents are not inappropriately accessed in a variety of situations, as well as to prevent the occurrence of privacy breaches.
We live in a world where privacy concerns are rampant. Many of these concerns have been fuelled by advancements of technology which have made attempts to maintain privacy and confidentiality an increasingly challenging task. The decision in R. v. Patrick hits particularly close to home, because even in a routine task such as throwing out the garbage there is a privacy element. The decision of the Supreme Court fails to recognize that one's proprietary claim to household and office waste should be treated as distinct from their privacy interest in such waste. Clearly, the onus is upon individual Canadians and Canadian businesses to safeguard their own personal privacy interests because, as this decision indicates, the state will not necessarily step up to do it for us.
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