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Trash’ case tests privacy rights
Top court examines who can go through garbage
Aug 02, 2008 04:30 AM
Tracey Tyler
LEGAL AFFAIRS REPORTER
It may be garbage, but a single bag can tell the story of our lives.
Those banana peels, letters, pill bottles and razors can reveal intimate details about the occupants of a home, from their medical and financial health to political or religious affiliations – not to mention fingerprints and DNA.
How would you feel if a neighbour rifled through your refuse to better understand your habits? What if those rummaging were police?
That’s happening already in Canada, with some officers even masquerading as garbage collectors. But not everyone is convinced the practice should continue.
The issue is headed for the Supreme Court of Canada, with federal and provincial prosecutors, criminal lawyers and civil libertarians now preparing for a crucial legal battle this fall over the question of whether our garbage is private.
Is our trash – like our phone conversations and homes – constitutionally protected from the prying eyes, ears and hands of the state?
“When Canadians give their household trash over to the municipality for waste management and recycling, they believe that’s what the municipality is going to do with it,” said Jonathan Lisus, a lawyer representing the Canadian Civil Liberties Association.
“They don’t expect and would be offended to learn that the police – or other law enforcement agencies – can intercept our trash and mine our personal information to investigate us,” Lisus said.
The association is intervening in the case of Russell Stephen Patrick, a former member of Canada’s national swim team, who was charged in 2003 with producing and trafficking in ecstasy after Calgary police, on six occasions, seized garbage bags from the back of his house that contained, among other things, gloves and what appeared to be a torn-up drug recipe.
There’s no denying Patrick is a convicted drug dealer. But it is often difficult cases like his that force us “to make the call about core human rights that affect everyone,” said Lisa Campbell, senior counsel to the Office of the Privacy Commissioner of Canada, which isn’t involved in the case, but is watching closely.
From the civil liberties association’s perspective, looking through the contents of a garbage receptacle is the “functional equivalent” of being inside a home and police should have to obtain a warrant to do so. In Patrick’s case, police violated his Charter right to be free from unreasonable search and seizure, it says.
Without constraints or supervision, law enforcement officials are free to build a database of our most personal biological information – and even collect waste in “bad neighbourhoods” to construct profiles of residents, information it would never otherwise have, Lisus and co-counsel Alexi Wood argue in their brief to the court.
But federal and provincial prosecutors say going through people’s garbage is an important investigative technique that’s turned up everything from murder weapons to DNA and, since household waste is material that’s been “abandoned,” it isn’t reasonable for Canadians to expect it will remain private.
But Campbell says the boundaries of personal privacy are being tested.
“What we’re seeing more and more is that people think they (have) privacy in their homes, but there’s more emanation out of our homes, like garbage or information that goes out on your computer, that is the subject of search and seizure by state authorities,” she said. “Those kinds of things are of concern to us.”
She adds people “can’t help but give off information. … (B)ut does that mean the state always has a right to collect it?”
There’s no reason to believe people abandon the information in their garbage given communities prevent citizens from burying, burning or recycling trash themselves, argues the civil liberties association. Most municipalities, including Toronto and Calgary, also have bylaws that prohibit scavenging or picking over garbage.
In fact, an expectation that material in trash in private is what drives prosecutions for identity theft, Patrick’s lawyer, Jennifer Ruttan, says in her brief to the court.
In Toronto, police occasionally go through garbage.
“It’s not an everyday thing,” said Const. Tony Vella, a police spokesperson, who suggests where the trash is stored can have a bearing on how far officers can go.
“I think if you store your garbage in your garage and (police) receive information about the garbage relevant to their investigation, they would need a warrant. That would make sense,” he said. Garbage at the curb may be a different story.
Vella said he doesn’t know of any Toronto officers who’ve posed as garbage collectors. “I haven’t heard of that. That’s something new.”
But not in Calgary, where an officer involved in Patrick’s case testified it’s an accepted practice.
Calgary drug squad officers became interested in Patrick after spotting his car at the home of a suspect they’d had under surveillance. But they admitted they didn’t have enough evidence to get a warrant to search through Patrick’s garbage.
Based on what they’d found in his trash, officers eventually got a warrant to search his home, where they found chemicals, thousands of pills, a pill press, drug recipes and scales.
In 2006 Patrick was convicted and sentenced to four years in prison.
In their brief to the Supreme Court, federal prosecutors Ronald Reimer and Jolaine Antonio say Patrick made an “unwise choice” to leave clues in the trash about his criminal activities and any notion his privacy rights were infringed is a “hollow legalism.”
The Charter and its protections against unreasonable search and seizure haven’t transformed the act of putting out garbage into a form of protected communication, like solicitor-client privilege, they argue.
But the Alberta Court of Appeal was divided over the issue. While Patrick’s garbage was technically on his property, he gave up control over it by putting it out for collection, in an open receptacle no less, said Justice Keith Ritter, who wrote the majority judgment upholding Patrick’s conviction last year.
“Anyone living in a major metropolitan area knows that once garbage is left for pickup, it may be subject to disturbance by bottle collectors and others looking for discarded treasures, as well as birds, dogs and vermin,” he said.
But in a dissenting opinion, Justice Carole Conrad said it was reasonable for Russell to think the material he placed in sealed, bags on his property would not be searched by officers without a warrant.
The only people with an “implied licence” to take away the trash were municipal garbage collectors, who were expected to mix it with other refuse, which has the effect of protecting a citizen’s privacy, she said.
Conrad is not the only judge who’s spoken out against the practice.
Although the U.S. Supreme Court ruled in 1988 the Fourth Amendment doesn’t prevent police from seizing garbage at the curb without a warrant, it wasn’t a unanimous decision. In a strongly worded dissent, Justice William Brennan compared the process to intercepting calls or rifling through drawers.
Several state courts have also ruled that warrantless searches of garbage violate state constitutions.
But if Canada’s Supreme Court adopts a similar view when it hears the Patrick case Oct. 10 it would mean trash discarded by people like Michael Briere, convicted of killing 10-year-old Holly Jones in 2003, would be constitutionally protected, a lawyer for Ontario’s attorney general argues in her factum.
“That cannot be right,” says Crown counsel Michal Fairburn.
Briere said he placed Jones’ legs and feet in garbage bags and took them to the street for pickup. They were never recovered. Briere was arrested after officers retrieved from a fast food garbage pail a pop can and straw used by Briere and developed a DNA profile.
But the civil liberties association says it isn’t true that police wouldn’t be able to go through garbage, said Lisus.
“We simply say, ‘Get a warrant.’”
