Privacy and investigative dumpster diving: R v Patrick

The Supreme Court of Canada (“SCC”) will hear arguments this Friday on yet another major s. 8 Charter issue in the case of R v Patrick, [2009] 1 SCR 579 [Patrick]. Recent decisions of the top court on police search and seizure powers have been complicated by deep divisions within the court, as evidenced by the four-way split decisions in the twin cases of R v Kang-Brown, [2008] 1 SCR 456 and R v AM, [2008] 1 SCR 569. In Patrick, the court will have yet another opportunity to give guidance for trial judges presiding over s. 8 applications, and importantly, decide on the proper approach to defining reasonable expectations of privacy.

The facts of Patrick are not out of the ordinary. The police suspected that Patrick was operating a drug production lab in his home, but lacked the grounds to obtain a search warrant. On six occasions, they surreptitiously collected the garbage from Patrick’s home once it had been left out for collection in opaque plastic bags. From the evidence found in the garbage, the police were able to obtain a warrant to search the home, whereupon they discovered an ecstasy laboratory, and Patrick was charged accordingly.

An important issue in the case is the way that the privacy interest over Patrick’s garbage is characterized. The trial judge characterized the interest as informational in nature: the contents of one’s garbage may tend to reveal intimate details of one’s personal life choices. On appeal, however, the interest was characterized as territorial: Patrick has a privacy interest in objects left in opaque plastic bags, and within the boundaries of his private property. In both cases, the courts were not convinced and ruled that any privacy interest Patrick may have had was abandoned when he left his garbage for pickup. Essential to the reasoning endorsed by the Alberta Court of Appeal is the fact that garbage left at the edge of one’s property is exposed to and accessible by any member of the public. Dumpster divers, scavenging animals and garbage collectors may all have access to the contents of one’s garbage, so any privacy interest in its contents, the argument goes, is abandoned once left at the roadside.

This line of reasoning harkens to US jurisprudence which holds that no expectation of privacy can hold over anything which runs the risk of being exposed to the public. In California v Greenwood, 486 U.S. 35 (1988), the United States Supreme Court (“USSC”) considered a case with facts virtually identical to the present case and found that no reasonable expectation holds over garbage left outside one’s home. In its decision the USSC concluded with a broad statement of the US law of search and seizure: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of [constitutional] protection.”

Canadian jurisprudence has typically departed from the American approach, employing instead a ‘broad and principled approach.’ Indeed, in a series of early Charter cases, the SCC turned from the American risk analysis approach in favour of one that looks specifically to the nature of the police investigative techniques at issue. In R v Duarte, [1990] 1 SCR 30, for example, the SCC specifically rejected the American approach when considering the constitutionality of recording conversations via participants “wearing a wire.” In that case SCC ruled that that although we always run the risk that our private conversation could potentially be repeated to others later on, having one’s private conversations surreptitiously recorded by agents of the state is another matter all together.

The facts of Patrick lend themselves easily to a risk analysis approach. Intuitively, we tend to think that garbage is garbage – once you throw it out, you lose it. And given that the SCC has been notoriously divided on s. 8 cases in recent memory, we may well expect a majority endorsement of this reasoning simply for the sake of clarity.