On April 9, 2009, the Supreme Court of Canada issued an important judgment in R. v. Patrick about the abandonment of a person’s privacy interest in waste. Potentially extending into issues of investigative powers, waste disposal policies and solicitor-client privilege, the decision signals the need for individuals and corporations alike to review their internal procedures on waste disposal.
The Court made it clear that the onus is on the individual or business to prove that its conduct demonstrates an intention to maintain confidentiality over its discarded trash. If the conduct demonstrates an intention to abandon one’s privacy interest, then governmental agencies (possibly including any environmental enforcement or regulatory agency) could remove individuals’ or businesses’ waste prior to pickup and use it to gather confidential, competitive or trade-secret information as potential evidence of regulatory or environmental infractions. The Court did not clarify who, at the point of abandonment, actually owns the waste. If no one owns the waste once it is deemed abandoned, then it will lie in a “no man’s land” where the rules regarding its collection, use, care and control could be uncertain.
Suspecting that Mr. Patrick, the appellant, was operating an ecstasy lab in his home, the Calgary police reached through the airspace over the appellant’s property line on several occasions and seized garbage bags that the appellant had placed for collection on the rear of his property, adjacent to a public alleyway. Evidence collected from the bags was used to obtain a warrant to search the appellant’s house, and evidence from that search provided the basis for the appellant’s conviction.
The appellant argued that the seizure of his garbage constituted a breach of his right, guaranteed by section 8 of the Canadian Charter of Rights and Freedoms (Charter), to be free from unreasonable search and seizure. The trial judge, the Alberta Court of Appeal and, eventually, the Supreme Court of Canada all rejected the appellant’s argument that he had a reasonable expectation of privacy regarding the items taken from his garbage. They concluded that neither the search of the garbage nor the subsequent warranted search of the appellant’s home breached section 8 of the Charter.
The majority for the Supreme Court of Canada found that the appellant had abandoned his privacy interest when he placed his garbage for collection at the rear of his property near or at the property line without showing any manifest intention to assert a continuing expectation of privacy or control over the waste. At this location, the waste was accessible to any passing member of the public. Although the police seized the bags by arguably trespassing across the appellant’s private property line, the Court concluded that this intrusion was “relatively peripheral” or trivial. Moreover, the Court concluded that the applicable City of Calgary waste bylaw afforded no protection to the appellant in the circumstances, in spite of its specific prohibition against “scaveng[ing] waste from a commercial bin, waste container or plastic garbage bag.”
In writing minority reasons in this case, Justice Abella stressed that information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. That said, the fact that waste is left out for collection indicates a diminished expectation of privacy regarding that waste. Justice Abella concluded that, in these circumstances, the investigating body requires at least a reasonable suspicion that a crime has been or is likely to be committed. The majority of the Court declined to impose a “reasonable suspicion” requirement.
Ownership in Waste
The Supreme Court’s decision in this case does not directly address the issue of who actually has an ownership or proprietary interest in waste once it is deemed “abandoned.” The Court conducted a rather narrow analysis, simply holding that the appellant intended to abandon his proprietary interest in the garbage bags and their contents. The Court focussed its attention on the privacy interest, not the proprietary interest, in the criminal law context.
While the notion that a person abandons any ownership interest in his/her waste once that person manifests an intention to abandon the waste and then actually discards it is consistent with prior case law, this decision leaves a void where property law is concerned. Once trash is abandoned, who owns it? If the trash is discarded at the property lot line, is it owned by the Municipality? This is an important issue in the waste and recyclables industry and becomes even more relevant when dealing with urban foragers, police and private investigators. If the Municipality or a private collection agency owns the waste once it is left at the curb, then these urban foragers, police and private investigators are technically stealing someone else’s property. But, if the waste is simply abandoned in a “no-man’s land,” there may be limited recourse against the actions of urban foragers and private investigators.
Moreover, if waste is abandoned and the relinquishment of control is a factor in that abandonment, who is responsible for that waste? Who has the continuing care and control for the purposes of government clean-up orders or other regulatory action? The Supreme Court’s failure to consider these potential property issues is an indication that this decision should have little application outside the privacy law and criminal or quasi-criminal context.
Extension of Decision to Non-Governmental Investigative Context
There appears to be little doubt that the Charter’s protection against unreasonable search and seizure, and the privacy debate in this decision, apply with equal force to the actions of government investigators under the Environmental Protection Act and other public welfare statutes. Therefore, if the police can pick through your garbage to search for evidence of a criminal offence (absent a manifest intention to assert a continuing expectation of privacy or control over your waste), presumably other government investigators may similarly search for evidence of quasi-criminal offences.
It is somewhat unclear to what extent the privacy debate in this case extends to private action in the non-governmental context. Generally, different rules apply to private parties than to government parties. In particular, the Charter does not apply to the actions of private parties. Without this Charter protection, while non-governmental parties may face various criminal and common law penalties for searching through a corporation's or an individual's garbage, the information obtained through such illegal searches may still be admissible evidence in a court of law. On occasion, courts have found that investigative evidence obtained in breach of a statute may be adduced if it is relevant and if its probative value exceeds its prejudicial effect. (See, for instance, the decisions in Ferenczy v. MCI Medical Clinics and Bell ExpressVu Limited Partnership v. Rodgers. Arguably, permitting illegally obtained evidence to be admissible is contrary to public policy, regardless of whether the evidence was obtained by public or private parties.
Duties of Waste Collectors
The majority of the Supreme Court recognized in this case that waste collectors would be put in an impossible position if a business' or person's expectation of privacy in waste continued beyond the point of deemed abandonment. The Court held that once a person or business does "everything required of him to commit his rubbish to the municipal collection system," waste collectors cannot be subjected to a duty to ensure privacy interests are protected in the course of carrying out their mandate. To impose such a duty "would require the entire municipal [or a private] disposal system to be regarded as an extension, in terms of privacy, of the dwelling house.
Waste Disposal Procedures
The onus is always on individuals or businesses to prove that their conduct reasonably demonstrates an intention to maintain their privacy interest in their garbage i.e., possibly by maintaining garbage under lock and key or in a controlled area before it is picked up by an authorized collector, or taking some action to render the contents unreadable or unusable prior to disposal, such as shredding the contents of the sensitive material before discarding it.
Nonetheless, it is unclear whether shredding the contents of one’s waste would be considered sufficient. The appellant’s trash in this case contained “numerous pieces of torn paper” that “when pieced together” by the police, showed a chemical drug recipe. The deliberate tearing by the appellant to further conceal and protect the papers’ contents was not sufficient to protect his privacy.
In light of the decision in this case, businesses and (in particular) law firms and in-house legal departments need to carefully consider their waste disposal processes and take steps to ensure the preservation of their confidential, private (and often privileged) information. If information protected by solicitor-client privilege is discarded without proper protective measures, the use of that information by third parties could lead to uncertainty about whether the privilege had been waived under all circumstances.