The recent case of R. v. Patrick in the Supreme Court of Canada was decided within the context of suspected criminal activity and police investigation, but its impact may not be so contained, and may have implications in commerce and business.
The Basic Facts of the Case
On several occasions, police took bags located inside garbage cans placed on a stand (without lids) just inside Russell Patrick’s property line. And while the stand did not have any doors, the police investigators did have to reach through the airspace over the property line in order to get the bags.
The items seized by the police included torn-up papers containing chemical recipes and instructions, gloves, used duct tape, paper towel sheets, packaging for rubber gloves, packaging for a digital scale, a product card for a vacuum pump, a balloon, a receipt for muriatic acid and an empty clear plastic bag with residue inside.
Police suspected Patrick was manufacturing Ecstasy, an illegal recreational substance, and they used what they learned from the contents of his garbage to obtain a warrant to search inside his home.
Expectation of Territorial and Informational Privacy At issue was whether the police breached Patrick’s s. 8 Charter-protected right to be free from unreasonable search and seizure, specifically: (a) whether he had a reasonable expectation of territorial privacy with respect to his dwelling-house, its perimeter and the garbage bags stored on it; and (b) whether he had a reasonable expectation of informational privacy with respect to the garbage bags and the information stored in them.
The Tattletale Aspects of Garbage
The Attorney General characterized the subject matter as “garbage,” but residential waste includes an enormous amount of personal information about what is going on in one’s home and personal life, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.).
As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle.
The More Critical Facts of This Case
Four factual elements were found of prime importance in this appeal: (i) the garbage was put out by Patrick for collection in the customary location for removal, (ii) that location was at or near the property line, (iii) there was no manifestation (such as a locked receptacle) of any continuing assertion of privacy or control, and (iv) the police took the bags to search for information about activities within the home as part of a continuing criminal investigation.
Abandoning One’s Interest and Control
Binnie J., for the majority, found that:
Clearly, [Patrick] intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable continuing privacy interest in the information which the contents revealed to the police.
There was some discussion at the bar that a privacy interest does not cease until garbage becomes “anonymous,” but...much garbage never becomes anonymous, e.g., addressed envelopes, personal letters and so on. In this case, the garbage included invoices for the purchase of chemicals used in the preparation of the drug Ecstasy.
The idea that s. 8 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.
Yet if there is to be a reasonable cut-off point, where is it to be located? The line must be easily intelligible to both police and homeowners.
Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, the reasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information.”
It was the majority view in this case that the householder had sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest when he placed his garbage bags for collection in the open container at the back of his property adjacent to the lot line. Patrick had done everything required of him to commit his rubbish to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in a public alleyway, including street people, bottle pickers, urban foragers, nosey neighbours and mischievous children, as well as the garbage collectors and the police.
Some Final Words
While we may believe that we live in an electronic world, so much of what business and commerce does is committed to paper and so much of it is discarded without being shredded. And discarded paper is not the only tell-tale sign of what the business is doing or has done, and with whom it has been associating or partnering. Indeed, if household garbage can tell us so much about an individual, imagine what commercial waste can tell us about the enterprise.
But could it be that the principles enunciated in this case by the highest court in the land will be restricted to households and/or police investigations, and not find their way into corporate espionage? Or will that kind of activity just not have to be as clandestine anymore?
Garbage suggests the end of a cycle, but this case may mark the beginning of a new set of privacy struggles and garbage wars, and a brand new batch of litigation to sort it all out.