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Editorial: Trash talking at the Supreme Court

When you put out your garbage, do you believe it to be private? For most of us, in a criminal sense, it doesn’t really matter if the local constabulary decides to snap on the Latex gloves for a rummage around in our trash because all they’re going to find is . . . garbage, right?

If the police want to wallow in our waste, well then, many would say: “Fill your boots, boys.”

And aren’t the few who may be criminally inclined smart enough these days not to dispose of incriminating evidence right outside their homes?

After all, if it’s not the cops raiding the refuse, then raccoons and their ilk have been known to penetrate un-bungee-corded, city-issued garbage bins and leave the contents spread out on public display. Or is that “plain view?”

If you’ve got nothing to hide, does it matter then if the authorities root around in your rubbish as long as they clean up the eggshells on the sidewalk? Is the real worry just a creepy, intrusive feeling the activity may inspire in some?

(We left our tinfoil hat at home and so have decided concerns about DNA and fingerprint collection for databanks if police are given free-wheeling access to trash, would be problematic in that it would be hard to prove who deposited the samples on the orange peels behind closed doors.)

Well, rest easy. The Supreme Court is deciding just how private is trash.

The question arises from a case involving Alberta’s Russell Patrick.

Police reached over Patrick’s property line and snagged garbage bags which their snooping revealed contained stuff one would normally associate with an ecstasy lab, thus scoring a warrant to search his house. Patrick was subsequently convicted of drug offences.

The SCC panel was asked at a recent hearing to overturn the conviction and exclude the evidence.

“Permitting police to harvest the contents of our garbage, our household waste, is the functional equivalent of looking through the house,” Canadian Civil Liberties Association lawyer Jonathan Lisus is quoted by Tracey Tyler in the Toronto Star. “At the very minimum it’s police looking through the window.”

But government lawyers argued there’s no privacy claim since the stuff is “abandoned” once it’s in the container, the Star reported.

It was also reported in the Star that Patrick’s lawyer, Jennifer Ruttan, suggested, as a starting point, the court could find his “territorial” right to privacy was shattered when the cops trespassed.

She’s right. This is all about the ‘reaching over.’

It is one thing to sift through the stuff when it’s already on public property for pick up on its way to a public dump; once it’s on a sidewalk it’s hard to argue privacy.

But it’s quite another thing when the police tippy-toe over the property line like cartoon characters to make off with what we think is ill-gotten booty.

 It doesn’t matter if it is junk destined for public disposal - as long as it’s on the other side of the line it’s still on private property. We should have the right to edit our garbage before final disposal while it’s still in transit, close but not quite public yet.

But if the court disagrees, can we at least get an order that the cops drag the bin back to the doorstep?

­- Gretchen Drummie
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