Even when it's sitting on your property awaiting collection, garbage - and the private information it contains - may be vulnerable to police and public scrutiny

R. v. Patrick

Supreme Court of Canada, 2009 SCC 17 (April 9, 2009)

This Supreme Court of Canada ruling, which arose in the context of a criminal drug prosecution, underscores the importance of careful disposal of documents containing confidential information or other information that could potentially be embarrassing or damaging to your company's interests. The essence of the Court's ruling is that waste left for disposal "at the curb" - and the information it contains - is fair game for police search and seizure, and arguably for perusal by reporters or members of the general public as well. Even where trash is left for pick up on your own private property, it can be vulnerable if it can easily be reached from public property. The lesson is never to dispose of sensitive material by leaving it for pick-up on the periphery of one's property. Lockable bins, fencing, signage and other indicia of an intention to maintain control of refuse until it can be securely transferred into disposal vehicles are key to keeping your trash out of the hands of those who would recycle it into a gold mine of information about your business.

Background

The appellant had been charged with drug offences after the Calgary police, in the course of an investigation, opened garbage bags he had left for collection in an uncovered curbside bin and examined their contents. These allegedly included residue of illegal drugs as well as other items that were obviously related to the ecstasy lab that the appellant was subsequently convicted of running from his house. Throughout the proceedings in the lower courts, the appellant's counsel focused on the constitutionality of the warrantless search and seizure of the garbage bags, which were on the appellant's property when the police reached over the lot line and took them. The Alberta Court of Appeal held, over a strong dissent by Madam Justice Conrad, that the appellant had relinquished control over the items in the bags and, by implication, had no expectation that they would remain private. It also held that the items were not the sort of thing to which s. 8 privacy rights extend (this aspect of the ruling was rejected by the Supreme Court, which recognized the potential informational value of almost any form of waste and stated that the fact that material has been used in an illegal activity does not affect the degree of protection afforded to its owner.)

Privacy under the Charter of Rights: protecting people, not places

The Supreme Court unanimously upheld the constitutionality of the police's power to seize and search the appellant's trash bags in this context. Interestingly, while the majority opinion, authored by Mr. Justice Binnie, paid rhetorical homage to the "man's home is his castle" concept, it did not focus on the fact that the bags had physically stood in the appellant's back yard, if only barely inside the lot line, at the time they were seized. The majority allowed that there was an "element of trespass involved" even though the police officers' intrusion had been limited to reaching through the appellant's "airspace" to grab the bags while keeping their feet in the public alleyway. However, while the police would not have been justified if, e.g., they had used a cherry-picker to pluck items off the appellant's front porch, the court was satisfied that the "physical intrusion" under the circumstances that obtained here was "relatively peripheral" and preferred to look at the case as concerning the constitutional protection of reasonable privacy expectations. This reflected the majority's acceptance of U.S. constitutional jurisprudence to the effect that the Fourth Amendment protects "people, not places."

Abandonment

As a general guideline, the assertion of a privacy interest will be "reasonable" where the person asserting it had a subjective expectation of privacy that was objectively reasonable, having regard to (i) whether the material was obtained as the result of trespass, (ii) whether it was in public view, (iii) whether its informational content had been abandoned, (iv) whether it was already in the hands of third parties, (v) whether the evidence-gathering technique was itself objectively unreasonable and (vi) whether the information included intimate biographic or lifestyle details.

While there was little doubt that the appellant had satisfied some elements of the test for a reasonable expectation of privacy, the key concept in the judgment was "abandonment". The issue was whether, having expressed the intention of abandoning his property interest in his trash, the appellant had also abandoned his privacy interest. The majority considered but generally rejected the possibility that the privacy interest survives the property interest in these circumstances, e.g. (as the dissenting judge at the Alberta Court of Appeal had argued) until it is "anonymized" through mixture with garbage from many other sources. The test of privacy abandonment adopted by the majority does not appear to differ, in essence, from a test of abandonment of property:

The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.

In the view of the majority, the appellant had manifested an intention - applying the required "objective" standard - to abandon his privacy interest in the contents of the bags when he left them by the alley for pick-up. Had the bags been located away from the lot line (e.g. alongside the house or in a garage) or if the trash containers had been locked, there would likely have been no unequivocal abandonment. But in the circumstances of this case, where he had taken every action required to ensure that his trash bags would leave his property and his control, the totality of the evidence suggested otherwise.

Once the privacy interest had been abandoned, the police were not precluded by s. 8 of the Charter from rooting through the appellant's trash - there is no "search and seizure" and no "reasonable expectation of privacy" where what is seized has been abandoned.

Application of the ruling

While the case turned on a constitutional law issue involving police search and seizure powers, the Supreme Court's decision to base it on the property law concept of "abandonment" raises the question - as noted above - whether regulatory authorities (and even non-governmental actors such as news reporters, competitors or members of the general public) would also be free to root through a company's trash if it is left waiting for pick-up in a place that is easily accessible to them. While civic bylaws against "dumpster diving" may discourage such activity to a limited extent, the better solution is always to keep control of your trash until the moment of pick-up.