Editorial: Garbage in, evidence out


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The Supreme Court of Canada has embraced the old adage, “One man’s trash is another man’s treasure.” Or in this case, one drug dealer’s garbage put out for collection is fair game for the cops to give it a good rummage.

The ruling arises from R. v. Patrick, a case that explores the question: When does household rubbish stop being private? In a 7-0 decision the top court said that when we put our garbage out to the curb for pickup, any expectation of privacy with respect to what’s inside, is scrapped.

Thus, Russell Stephen Patrick, a former national swim team member, remains convicted of running an ecstasy lab out of his home. The court found the police weren’t wrong to sift, without a warrant, through the waste he left at the edge of his property in Calgary.

According to the judgment, police suspected Patrick was operating an ecstasy lab in his home and on several occasions they seized bags of garbage that he put out for collection at the back of his place, adjacent to a public alley. The court notes the officers didn’t have to step onto the property but they did have to reach through “airspace” over the line.

The police then used evidence of criminal activity gathered from the contents of the garbage to obtain a warrant to search Patrick’s house and garage where more evidence was seized.

At his trial Patrick asserted that the taking of the garbage bags was a Charter breach of his right to be free from unreasonable search and seizure. But the trial judge found he didn’t have a reasonable expectation of privacy and therefore the warrant and search were lawful. The Alberta Court of Appeal upheld the lower court’s decision.

“He abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public,” wrote Justice Ian Binnie.

“The bags were unprotected and within easy reach of anyone walking by in the 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.”

But Justice Rosalie Abella, while concurring with the decision, went further disagreeing with the characterization of the privacy issues at stake: “Personal information emanating from the home that has been transformed into household waste is entitled to protection from indiscriminate state intrusion.

Household waste left for garbage disposal is ‘abandoned’ for a specific purpose - so that garbage will reach the waste disposal system. What has not been abandoned is the homeowner’s privacy interest attaching to personal information.

Individuals do not intend that this information, such as medical or financial information will be generally accessible to public scrutiny, let alone to the state.”

She said the “fact that what is at issue is waste left out for collection, however, argues for a diminished expectation of privacy. But the state should have at least a reasonable suspicion that a criminal offence has been or is likely to be committed before conducting a search.

In this case, the evidence amply supported such a decision.”
Abella’s right. But will the raccoons let us know if searches are conducted when there isn’t such suspicion?

- Gretchen Drummie

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