KIRK MAKIN
From Friday's Globe and Mail
April 9, 2009
{TORONTO — The Supreme Court of Canada said Thursday that governments have the right to sift through personal garbage once it reaches your property line, concluding a classic contest over property rights.
In a 7-0 ruling, the court said the rubbish is fair game for police, tax investigators or any other government scrutineer.
The decision means that Russell Patrick, a former record-holding swimmer on the Canadian swim team, will spend four years in prison for drug offences that came to light after police snatched garbage bags from behind his Calgary home on Dec. 17, 2003.
The court conceded that garbage contains a broad spectrum of highly private material, ranging from an individual's DNA to banking documents and intimate communications, which individuals might well want to keep confidential. But he noted that garbage is discarded for a reason – because it is no longer wanted – which greatly reduces any claim to privacy.
“Patrick did everything required to rid himself of the items taken as evidence,” Mr. Justice Ian Binnie said, writing on behalf of Chief Justice Beverley McLachlin, Mr. Justice Louis LeBel, Mr. Justice Morris Fish, Madam Justice Louise Charron and Mr. Justice Marshall Rothstein. “His conduct was incompatible with any reasonable expectation of confidentiality.”
Madam Justice Rosalie Abella wrote a concurring judgment, stating that police should have a reasonable suspicion that an offence has been committed or will be committed before they seize garbage.
Officers, reaching over Mr. Patrick's property line, made off with several bags of refuse, eliciting enough evidence of a potential ecstasy-manufacturing operation to obtain a search warrant for his house.
“When Patrick'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,” Judge Binnie concluded.
“I do not think constitutional protection should turn on whether the bags were placed a few inches inside the property line or a few inches outside it,” he added. “The point is that the garbage was at the property line, accessible to passersby.”
Jonathan Lisus, a lawyer for the Canadian Civil Liberties Association, said the ruling could potentially apply to computer text messages, which the courts may interpret as a form of garbage. “The focus is on the information, not the form of it,” Mr. Lisus said.
However, he said that deleted e-mail “is unlikely to be considered garbage because it resides on your server, which you control.”
Judge Binnie said that to suggest that the Charter of Rights “protects an individual'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.”
Michael Bates, a lawyer for Mr. Patrick, said the ruling is both confusing and troubling. “I think that it's going to be difficult for anybody to maintain their privacy interest while at the same time using the municipal garbage system,” he said. “Because if you're using the municipal system, at some point, that garbage is going to be in the hands of the garbage collector.”
Citizens who do not want to run the risk of having government investigators root through their garbage may want to consider purchasing their own landfill sites or home incineration systems, he said.
“This case clearly says that any privacy interest you had is gone,” Mr. Bates said. “The police, at the very least, will always be able to simply walk along with the garbage collector and simply have that person hand them the bag. I just don't see any other way a person can use the municipal system and at the same time maintain that privacy interest.”
Mr. Bates did, however, find something to cheer about in Judge Abella's concurring judgment.
But Judge Binnie said that the degree of privacy accorded to garbage is all about context. For example, he said that garbage placed on a porch, in a garage or within the immediate vicinity of a dwelling cannot be considered to have been “unequivocally abandoned.”
“In this case, Patrick'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,” he said.
“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.”} http://www.theglobeandmail.com/servlet/story/RTGAM.20090409.wgarbage0409/BNStory/National/?page=rss&id=RTGAM.20090409.wgarbage0409
