November 2, 2018
"Location is not the litmus test for determining the expectation of privacy." R v Patrick, 2009 SCC 17, para 6 Introduction
In Canada, our home is our castle, at least in legal terms. We enjoy the greatest constitutional protection of privacy in our homes. What happens when our private personal information from our homes is set outside as trash? We expect it will go straight to the waste disposal system. Are we entitled to privacy for our garbaged personal information? In 2009, the Supreme Court of Canada answered this question in R v Patrick.
In 2003 Russell Patrick was in his late twenties, a university graduate in physics and a former champion swimmer. He had represented Canada at the 1994 Commonwealth Games and held the Canadian men's 100-metre breaststroke record from 1995 until 2001. Patrick was also successful in the narcotics industry, at the top of a sophisticated criminal organization targeting young people. He operated an ecstasy lab in his house.
Picking through abandoned garbage is a common police practice in criminal investigations. Six times in December 2003, without a warrant, Calgary police went to the lane behind Patrick's house in the early morning, reached into the airspace across the fence line into Patrick's garbage cans, pulled out the garbage bags, and seized many items that they found inside, including receipts for the purchase of chemicals, torn-up chemical recipes and instructions, gloves, used duct tape and packaging for a scale. They put the bags back in the cans. The police officers did not step foot onto his property.
These garbaged items were used to obtain a warrant to search his house and garage, which in turn yielded further evidence. Patrick was charged for unlawfully producing, possessing and trafficking in an illegal drug.
Unreasonable Search and Seizure?
Section 8 of the Canadian Charter of Rights and Freedoms guarantees freedom from unreasonable search and seizure by government agents. At his 2005 trial, Patrick argued that by taking his garbage bags from his property, the police had breached this right. He argued that all evidence obtained from his garbage should be inadmissible in any trial against him.
Supreme Court of Canada Analysis
The Supreme Court unanimously found no Charter violation. Section 8 protection is limited to a reasonable expectation of privacy. Did Patrick have a reasonable expectation of privacy in his discarded garbage bags and their contents?