Monday, April 27, 2009

Do we have a Privacy Interest in our Garbage?

Residents of Toronto are familiar with the debate that can be generated by garbage, but not necessarily this kind of debate. In a case recently decided, the Supreme Court of Canada held that it was lawful for the police to use evidence of criminal activity taken from the contents of a person's garbage to obtain a warrant to seize the person's house and garage. As a result of the search, the police uncovered evidence that the defendant was operating an ecstasy lab in his home. He was subsequently convicted of several criminal offences.

The defendant appealed his conviction on the basis that by taking the garbage bags from his property, the police breached his right, guaranteed by section 8 of the Canadian Charter of Rights and Freedoms, to be free from unreasonable search and seizure. The Supreme Court of Canada dismissed the defendant's appeal and upheld his conviction. The Court's reasoning was as follows.

Mr. Justice Ian Binnie, writing for the majority of the Court, commented that labels are sometimes misleading. To describe something as "garbage" tends to presuppose the point in issue, namely whether the homeowner had any continuing privacy interest in what he had thrown out. The Court concluded that it is possible that the homeowner might have no further interest in physical possession of the garbage but a very strong interest in keeping private the information contained in the garbage. The question was whether he dealt with the garbage in such a way as to forfeit any reasonable expectation of keeping its contents confidential.

The Court concluded that this is an objective test to be determined considering the following factors:

1. The subject matter of the alleged search - Justice Binnie held that the subject matter is not simply garbage. He observed that residential waste includes an enormous amount of personal information about what is going on in our homes. The Court agreed with counsel for the Canadian Civil Liberties Association that a garbage bag may more accurately be described as a bag of "information" whose contents paint a fairly accurate and complete picture of a householder's activities and lifestyle. According to the Supreme Court, many of us may not wish to disclose those things to the public generally or to the police in particular. As a result, it concluded that the defendant had a continuing direct interest in the "information" that was in his garbage.

2. Concealing illegal objects - The Court held that the issue ought to be framed in terms of privacy of the area or thing being searched and the potential impact of the search on the person being searched, and not in terms of the nature or the identity of the concealed items. The seized garbage bags contained a lot of personal items other than drug making paraphernalia. Accordingly, the physical search was not confined to evidence of criminal activity, but to other activity as well.

3. Subjective expectation of privacy - The Court held that this is not a high hurdle - obviously, subjectively the defendant expected that the contents of the garbage bags would remain private.

4. Objective expectation of privacy - The Court held that the defendant had no objective expectation of privacy because the garbage was put out for collection in a customary location, it was at or near the property line, there was no manifestation of any continuing assertion of privacy or control (such as a locked receptacle) and the police took the bags to search for information as part of a continuing criminal investigation. However, it held that apart from the key issue of abandonment, the circumstances favoured the defendant.

5. The place where the search occurred - The essence of the defendant's complaint was the intrusion by the police into activities taking place inside his home rather than the fact that the police invaded the air space at the foot of his garden by reaching across the lot line for the bags. Accordingly, the Court concluded that the implication of focusing privacy protection is on people not places. But because the garbage at the property line was accessible to passers by, the Court found that the physical intrusion by the police was relatively peripheral.

6. Whether the subject matter of the search was in public view - The garbage bags were in plain view, but their contents were not.

7. Whether the subject matter of the search had been abandoned - Clearly the defendant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable and continuing privacy interest in the information which the contents revealed to the police.

8. Whether the information was already in the hands of third parties - The Court held that it was not necessary to defer a finding of abandonment until the garbage had been picked up by garbage collectors because this step did not depend on any act of the defendant and would add little in the way of protection.

9. Was the police conduct intrusive in relation to the privacy interest - Given that the act of abandonment occurred prior to the police gathering the garbage bags there was no privacy interest in existence at the time of the police intervention which therefore did not constitute an intrusion into an existing privacy interest.

The Court found that having regard to all of these factors, that the defendant had abandoned his privacy interest in the contents of the garbage bag when he placed them at his property line for collection. The taking of the bags did not constitute a search and seizure within the scope of section 8 of the Charter and the evidence found by the police was admissible.



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