In a recent Supreme Court of Canada ("SCC") decision, R v. Patrick, the Court considered whether a person has a right to privacy with respect to garbage put out for collection on private property. The decision established that police officers, without first obtaining a search warrant, may reach onto a person’s property to remove garbage and obtain the information embedded within it. Doing so was found not to be an unreasonable search and seizure under the Canadian Charter of Rights.
In Patrick, the police suspected that Russell Stephen Patrick was operating a drug lab in his home but they did not have enough evidence to obtain a search warrant. In the course of their investigation, officers removed garbage from Mr. Patrick’s property where it had been left for collection. Using the information gleaned from searching through the garbage, the police were able to gather enough evidence to obtain a search warrant. The police exercised the warrant and discovered an ecstasy lab in Mr. Patrick's residence. Mr. Patrick was charged and convicted with offences under the Controlled Drugs and Substances Act
The Court's Decision
The SCC determined that by abandoning the garbage, which includes placing it out for collection in the typical location for garbage removal, Mr. Patrick forfeited any reasonable expectation of privacy in the information embedded in the contents of the garbage. Even though there was a physical intrusion by the police into Mr. Patrick's property space, the intrusion was necessary to obtain the garbage, and the intrusion did not breach Mr. Patrick's privacy interests. The Court held that:
- There was no breach of territorial privacy because the intrusion by the police onto Mr. Patrick's property was relatively peripheral.
- There was no breach of informational privacy because the cause of the exposure of the private information was the act of abandonment by Mr. Patrick, and not the act of intrusion by the police.
Justice Abella concurred with the result but she held that garbage is typically abandoned in order to be disposed. However, if the personal information contained in the garbage is typically not intended to be exposed to the public, such as medical or financial information, a privacy interest in such information would not be abandoned by virtue of garbage being set our for collection and disposal.
The Patrick decision has important implications for legitimate business enterprises operating in Canada. In particular, the decision confirms that privacy rights are attached to business information contained in print or in other media that is placed in the garbage for collection and disposal. Although this may be of some comfort where such proprietary information falls into the hands of third parties, each business enterprise has obligations under applicable privacy legislation to protect private information collected by the business from individuals, including its own employees. No printed or other media containing such information should ever be put out at the curb for collection.
For strict liability statutory offences, and for purposes of mitigating damages where a person has suffered damages as a result of the conduct of another, a due diligence defence may be available if the defendant has demonstrated that systems and procedures were put in place by the business to ensure compliance with applicable statutory and common law.
Consequently, among other things, businesses should consider the following:
- Engage a document management service to ensure that all documents which may potentially contain information subject to privacy legislation are effectively disposed, for example, by being shredded.
- Take appropriate measures to destroy electronic versions of documents (such as CD’s and computer hard drives) which may contain private information
- Establish internal policies and procedures to protect all personal information covered by privacy legislation.