It is not a crime to go through garbage so long as it is not on someone else's private property.
It is not a crime to dumpster dive in Canada so long as the garbage that someone is going into is situated off of someone's private property.
The Supreme Court of Canada decided in R v Patrick, 2009 SCC 17 that individuals do not have a reasonable expectation of privacy in their garbage.
The Supreme Court found that "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, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police." .
In this case the police had searched Patrick's garbage that was outside of his home.
During this search the police retrieved drug making paraphernalia. This paraphernalia allowed the police to obtain a warrant to search Patrick's residence.
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In his defence Patrick brought a section 8 Charter challenge claiming that the search and seizure of his garbage was unreasonable.
With Patrick's Charter challenge the defence argued that section 8 of the Charter had been breached by the police. That the police had breached Patrick's right to a reasonable expectation of privacy by searching his garbage.
Ultimately Patrick's appeal was dismissed by the Supreme Court of Canada.The Court determined that Patrick's throwing out of illegal items into the garbage was considered sufficient to abandon the property. Therefore, Patrick surrendered any privacy rights that he once had and the police were within their purview to search the garbage without any warrant or other grounds.
The Crown successfully argued that the garbage had been abandoned and therefore the police search and seizure of Patrick's garbage was reasonable, and the evidence from the subsequent search of his residence as well as the garbage, was admitted into evidence at trial.
It is possible for someone to be criminally charged if they enter the property of another person at night near a dwelling house.
It follows that someone could be charged with a criminal offence for trespassing at night, if they were to dumpster dive on someone else's property during the night.
Trespassing at Night is found in section 177 of the Criminal Code
177. Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 173.
In order for someone to be convicted of Trespassing at Night the Crown would have to prove not only the essential elements of time, jurisdiction and identity of the accused, the crown should also prove:
the accused loitered or prowled
it was night at the time
the accused was on private property at the time
a private dwelling-house is situated on that property
there was no lawful excuse for the conduct
If you have been charged with trespassing at night, break and enter or any other criminal offence contact Pyzer Criminal Lawyers today for the sound legal advice!
Written By:
Jonathan Pyzer
Criminal Defence Lawyer (B.A., L.L.B.)
Jonathan is a highly skilled and sought after criminal defence lawyer who represents clients charged with criminal offences all over the Province of Ontario. He is a member in good-standing with the Law Society of Upper Canada, Criminal Lawyers’ Association and Toronto Lawyers Association.
