On April 9, 2009, the Supreme Court of Canada issued its decision in R. v. Patrick (2009 SCC 17), a case that asked the court to determine the extent of privacy rights with regard to household waste. The court ruled that there is indeed a privacy interest in household waste, but that the actions of the owner of that waste can amount to abandonment, which defeats this interest.

The facts of the case were relatively straightforward. Police in Calgary suspected that Mr. Patrick was involved in manufacturing illegal drugs. In an attempt to gather useable evidence, they took garbage bags (on numerous occasions) from his garbage bins, which were located in an open alcove set into his fence. After they discovered, on the seventh attempt, evidence of the manufacture of narcotics, they obtained a search warrant and Mr. Patrick was charged with various narcotics-related offences. The trial judge ruled that Mr. Patrick did not have a reasonable expectation of privacy in the items seized from his garbage, and Mr. Patrick was convicted. The conviction was upheld by the Alberta Court of Appeal and the Supreme Court.

Justice Binnie, for the majority,1 recognized the personal and intimate nature of household waste, describing it, in the words of the Canadian Civil Liberties Association (represented by McCarthy Tétrault LLP lawyers) as a "bag of information." He stated that those bags, when "viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle" that many of us would not wish disclosed to the public or police. (See paragraph 30.)

The court therefore determined that the starting point for the analysis was the recognition of a privacy interest in household information, but that there exists a cut-off point where an individual is determined to have abandoned the items and relinquished this privacy interest. According to Justice Binnie, in this case, the abandonment occurred when Mr. Patrick "placed his garbage bags for collection in the open container at the back of his property adjacent to the lot line… The bags were unprotected and within easy reach of anyone walking by in a public alleyway, including street people, bottle pickers, urban foragers, nosy neighbours and mischievous children, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police." (See paragraph 55.)

McCarthy Tétrault Notes

The question then arises: how can an average homeowner know if they have, in the eyes of the police, abandoned their "bags of information"? According to Justice Binnie, the householder retains control, and therefore a privacy interest, in their household garbage until they have placed them at or within reach of the lot line. Once they have placed their household waste for collection, then the "householder has sufficiently abandoned his interest and control" and therefore loses the expectation of privacy. (See paragraph 63.)

The court declined to engage in an "essay" on what behaviour would qualify as abandonment, but did provide some examples, including dumping garbage in a rural dump, down a chute in an apartment building, or in a neighbour’s garbage bin. (See paragraph 64.)