The Supreme Court of Canada made headlines earlier this year when they released their decision in R. v. Patrick (“Patrick”) which confirmed, for the first time ever, that the police can legally search a suspect’s garbage without a warrant.
Section 8 of the Charter guarantees that every Canadian is free from unreasonable search or seizure. This means that a government agency cannot search an individual’s personal property unless that search is “reasonable”. In most circumstances, before the police search an individual’s property (their home, car, office, or person) they will obtain a warrant. A warrant is like a permission slip that authorizes the search of a place or thing. Without a warrant, it is generally against Canadian law for the police to search any individual’s person (unless incidental to arrest) or property.
However, in Patrick, the Supreme Court of Canada (“SCC”) ruled that the police may legally search an individual’s garbage without a warrant if source of the garbage puts it out to await collection.
The Calgary Police Department suspected Mr. Patrick of producing the drug ecstasy in his home; however, they did not have enough evidence to secure a warrant to search Mr. Patrick’s property. Instead, the police rifled through his garbage on several occasions until they discovered enough incriminating pieces of evidence to obtain a search warrant. They then forcibly entered Mr. Patrick’s home where they found evidence of an ecstasy lab and over 2,500 pills of ecstasy.
At trial, Patrick argued that his constitutional right to be free from unreasonable search and seizure had been violated by the warrantless search of his garbage. The SCC unanimously agreed that his rights had not been violated. The majority stated that when Mr. Patrick placed his garbage by the curb to await collection he had effectively abandoned all reasonable expectation of privacy in the contents of his garbage.
There are several problems with the decision in Patrick.
The first is that the garbage awaiting collection was still situated on Mr. Patrick’s property. Ostensibly, Mr. Patrick has control over who enters and exits his private property. While garbage collectors may have Mr. Patrick’s implicit permission to reach over the property line and collect the garbage he had put out for them, it is safe to say that Mr. Patrick could not reasonably have expected police officers to trespass on his property to obtain the garbage. On the contrary, it seems much more reasonable for Mr. Patrick to assume that police officers would respect the law and refrain from trespassing on private property. In fact, in Calgary, where Mr. Patrick lived, it was against municipal by-laws to scavenge through another individual’s trash. However, the SCC were not convinced that this by-law was sufficient to create a reasonable expectation on the part of a home-owner that the police would not rifle through their garbage — or in other words, the fact that there was a by-law in place does not translate into a reasonable belief that the police would respect that by-law.
Most individuals would be shocked to think that nosy neighbors, reporters, private investigators, ex-spouses, and any other member of the public may legally rifle through an individual’s trash as it awaits collection. However, according to the SCC in Patrick garbage awaiting collection at the curb has been abandoned and an individual has no privacy interest in it. This means that any member of the public would be within their rights to snoop through your garbage. Most Canadians would likely be shocked to know that current Canadian law allows this type of behaviour. Though the average Canadian does not object to their trash being collected by garbage collectors or rifled through by bottle-collectors and the like, these activities are less objectionable because they tend to preserve the home-owner’s anonymity. It seems counterintuitive that police officers and private individuals can legally cross the property line to seize trash from an individual’s property in order obtain information about their private and personal habits against a homeowner’s wishes and without a warrant.
Another major problem with the SCC’s decision in Patrick is that it seems to directly contradict their earlier decision in Stillman. In Stillman, Mr. Stillman was accused of murdering a young girl and brought into RCMP headquarters for questioning. Mr. Stillman was seventeen years old and his lawyer provided the RCMP with a fax instructing them that Stillman was not, under any circumstances, to provide any bodily samples to the police. Nonetheless, the RCMP took several samples from him including bodily fluid samples taken from discarded Kleenex he threw out in the bathroom. On the abandonment argument, the SCC concluded that while in custody, providing bodily samples was “simply the inevitable consequence of the normal functioning of the human body”. They conclude that a person in custody cannot reasonably be said to have abandoned the bodily sample because the accused person has no choice other than to discard the samples in proximity of the police. It would be virtually impossible for an accused person in custody to “destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from ‘retrieving’ this ‘potentially useful waste’”. Thus, the SCC concluded that Mr. Stillman retained a privacy interest in his bodily samples even after the Kleenex was thrown out.
On that logic, individuals should retain a privacy interest in the biographical information contained in their garbage after the garbage itself is discarded. As was the case with Mr. Stillman, it would be virtually impossible for an individual out of custody to retain control over all trash to keep from providing possibly incriminating evidence to the police. Individuals living in the city of Toronto and the Greater Toronto Area are prohibited by law from burning their garbage. In Calgary (where Mr. Patrick lived), Toronto and the Greater Toronto Area, it is illegal to dispose of household garbage in any way other than by surrendering it to municipal trash collection. It seems that out-of-custody suspects are as powerless as in-custody suspects when it comes to trying to dispose of garbage in a private manner. According to the principle in Stillman, individuals who put garbage outside for collection should retain some sort of privacy interest in their garbage. However, Patrick tells us that this is not the case.
The major concern for both criminal defence lawyers and the general public post-Patrick is that police officers will be able to search through garbage as it awaits collection in order to obtain DNA, fingerprints, and other biographical information. The SCC in Patrick recognized the vast amount of personal information contained in an individual’s garbage. They acknowledge that “[r]esidential waste includes an enormous amount of personal information about what is going on in our homes, 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.)…a garbage bag may more accurately be described as a bag of “information”, and its contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle”. Yet, despite this observation, the SCC rejected the view that household garbage should be considered private until it becomes anonymous, saying it was “too extravagant to contemplate” that an individual should have a privacy interest in their garbage until “the last unpaid bill rots into dust”.
Is it really so far-fetched to suggest that an individual has a privacy interest in their garbage until it becomes anonymous? One of the reasons we throw things out is to have them mixed with other refuse until they become so mixed they can no longer reasonably be connected back to us. Many people go so far as to shred important documents before disposing of them so as to hasten the intermixing process and achieve anonymity. It seems that individuals at least believe that they have a privacy interest in their garbage as it awaits pick-up since this is one of the few occasions where the garbage can properly be identified as belonging to them.
The best course of action for those who are concerned about the decision in Patrick is to store garbage in a locked receptacle, far within the property line until pick-up to clearly indicate your intention to keep the contents of your garbage private. In Patrick the majority notes that “until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling”. Keep your garbage close to your home and only put it out at the time of collection and you may retain some form of privacy interest in any personal information contained therein.