Canadian Supreme Court Considers Right to Privacy

R v Patrick, 2009 SCC 17 (CanLII) (9 April 2009) The Supreme Court of Canada has held that no privacy interest exists in the contents of garbage bags placed out for collection.  Police had seized garbage bags from an individual's property, and used their contents to justify obtaining a warrant to search his home.  The individual was subsequently convicted of possessing, producing and trafficking ecstasy.  He unsuccessfully argued in the Supreme Court that the police's actions breached the Canadian Charter of Rights and Freedoms.

Facts

The police accessed Russell Patrick's garbage by reaching into his property from a publicly accessible back alleyway and taking bags of garbage that had been placed out for collection.  Patrick argued that this was unreasonable within the meaning of s 8 of the Canadian Charter, which protects against unreasonable search or seizure.

Upon searching Patrick's garbage, the police found a number of objects which could have been used to make drugs, some of which were contaminated with ecstasy.  This was the primary basis on which they sought and obtained a search warrant for Patrick's home.  Patrick was ultimately convicted of possessing, producing and trafficking ecstasy.

Patrick argued that without the unreasonable seizure of his garbage the police would not have been able to obtain the search warrant.  Consequently, this evidence should have been excluded pursuant to s 24(2) of the Canadian Charter, on the basis that it would bring the administration of justice into disrepute.

The trial judge held that Patrick had no reasonable expectation of privacy in his garbage and that the search warrant was therefore valid.  Patrick appealed to the Court of Appeal for Alberta, and then to the Supreme Court of Canada.

Decision

The majority of the Supreme Court of Canada found that the police did not breach the appellant's right to be free from unreasonable search and seizure, protected under s 8 of the Canadian Charter.  The majority judgment assessed Patrick's conduct objectively and decided that he abandoned any privacy interest in his garbage when he placed it at the rear of his property for collection.  At this point he had done everything necessary to dispose of the items in his garbage and they were accessible to any member of the public, including the police.

The majority decided that these actions were inconsistent with a subsisting privacy interest in the garbage, and emphasised that the relevant question was not whether Patrick subjectively believed that his garbage would remain private, but whether he had forfeited any reasonable expectation (assessed objectively) that it would remain so.  The majority stated that this would depend on the totality of the circumstances, including the nature of the interest in question, the circumstances in which the breach of privacy took place, and the rationale for the breach.

In this case, Patrick placed his garbage out for disposal in the customary way near the edge of his property.  The physical intrusion by the police reaching into his property to take the garbage was incidental.  However, if the garbage had been placed on the porch and he retained a greater degree of control over it, the issue would have been more difficult to determine.

When examining the totality of the circumstances, the majority held that a relevant consideration was the balance between 'the public's interest in being left alone by government' and 'the government's interest in intruding on an individual's privacy in order to advance its goals, notably those of law enforcement.'

Justice Abella concurred with the majority, but characterised the issues in this case differently.  Abella J reasoned that household garbage is abandoned for the specific purpose of being removed and dealt with by the waste disposal system.  Therefore, an individual should not be assumed to have abandoned their privacy interest in items in their garbage.

Where the state wishes to interfere with such a privacy interest, her Honour held that 'there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed'.  In this case, the evidence supported such a reasonable suspicion and therefore the interference was valid.  Abella J stated that 'most individuals do not intend that their personal information will ever be disclosed without a countervailing legitimate state interest.'

Relevance to the Victorian Charter

The Victorian Charter does not expressly provide for a right against unreasonable search and seizure.  However, the reasoning in this case may be applicable to interpreting s 13 of the Victorian Charter, which protects the right of persons not to have their privacy, family, home or correspondence arbitrarily interfered with.  This case may also be relevant when Courts are considering s 20 of the Charter, which prevents a public authority from depriving Victorians of their property other than in accordance with law.

The decision is available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc17/2009scc17.html. 

Meg O'Brien, Human Rights Law Group, Mallesons Stephen Jaques