Two violent sexual assaults occurred in Calgary in September 2003 and March 2004. The police considered the appellant, Wajid Delaa, a strong suspect. While the police hoped to prevent another rape and believed they had sufficient grounds to obtain a warrant for his DNA, they also had information suggesting the appellant was planning to leave Alberta in the immediate future and so did not want to alert him to the investigation.

An undercover operation was therefore devised to obtain castoff evidence that would contain the appellant’s DNA. A police officer posed as a potential purchaser of the appellant’s truck, which he had put up for sale. During a test drive, the two of them stopped at a gas station to check the truck’s fluids. There, another undercover officer solicited participation in a chewing gum survey, to which the appellant agreed. Delaa sampled and then spat out four pieces of gum into Dixie cups provided by this undercover officer, ostensibly to avoid littering. The DNA from the gum ultimately proved to be match that obtained from the two rapes, and the appellant was arrested.

The accused argued at trial that the obtaining of the gum samples constituted an unreasonable search and seizure contrary to sections 7 and 8 of the Charter of Rights and Freedoms. Regarding the section 7 claim (which section “provides a broad prohibition against the limitation of legal rights”), the trial judge held that the castoff operation was properly dealt with under section 8 (“an enumerated section set out for the express purpose of dealing with unreasonable search and seizure”). This contrasts with cases of confession or entrapment, which are typically dealt with under section 7. The trial judge did hold, however, that the principles from the Supreme Court of Canada (i.e. R. v. Collins, [1987] 1 S.C.R. 265) regarding the collection of confessions were applicable to the degree that trickery or deceit are involved. The Alberta Court of Appeal, summing up the trial court’s conclusion on the issue of trickery:

[W]hile the operation was a trick, it was passive and not an unfair or dirty trick and not a trick that would shock the community. To the contrary, given the circumstances, the trial judge felt the community would have been shocked had the police not resorted to such a tactic to include or exclude the appellant as a suspect.

With this I personally agree, as a ‘member of the community’. The deceitful nature of the police’s undercover operation is readily and enticingly palpable, but it is not so duplicitous as to unnerve and to place itself beyond the confines of what the community would consider to be the usual course of police activity and undertakings. While certainly ‘trickery’, the police’s undercover operation to gather castoff DNA evidence is, if anything, admirable and inspiring. An operation such as this is demonstrative of police ingenuity and may be held as an example of the necessary deceit that the police must engage in under certain pressures such as urgency to guard women against the spectre of rape.

That being said, the issue on appeal was whether the trial judge erred in his section 8 analysis, which concluded that there was no violation of the appellant’s section 8 Charter rights in the seizure of his DNA. The appellant disputed the finding that he had no reasonable expectation of privacy in the seized gum based on abandonment. He argued that the gum was not abandoned, but collected by the undercover police officer.  The Alberta Court of Appeal, “conclud[ing] that the trial judge made no reversible error” and thus upholding his decision, relied in its reasons on the Supreme Court case of R. v. Patrick, [2009] 1 S.C.R. 579, decided but a month prior. Patrick was covered upon its release at the TheCourt.ca, where it was described as “canonical case in section 8 Charter jurisprudence”. The Court of Appeal outlined the relevant findings of Patrick.

Abandonment is an issue of fact and a finding of abandonment is generally fatal to a claim of reasonable expectation of privacy … . Abandonment is a conclusion inferred from the conduct of the person claiming the s. 8 right, thus consideration of reasonableness (of a claimed expectation of privacy) must relate to the conduct of that person and not to anything done or not done by the police or anyone else involved in the subsequent collection and treatment of the items discarded … . Thus, the focus must be on the conduct of the appellant and whether a reasonable and objective person, considering the totality of the circumstances, would think spitting out the gum into the cup was abandonment.

The appellant argued that there exists a distinction between merely dropping the onto the ground or into a garbage can and the deceit that the police engaged in here.

[The appellant] submits that there was no abandonment here because the action of the undercover officer in holding out a Dixie cup for the gum (i.e. suggesting where the appellant should put the gum when he was finished with it) amounted to state intervention or compulsion. In other words, by disposing of the gum in a Dixie cup held by someone (in this case a police officer) he did not abandon it.

The Court found this distinction to be without merit.

[S]pitting out the gum in the circumstances was, on an objectively reasonable assessment, behaviour entirely consistent with abandonment. This is so regardless of where he spit it out – the ground, the garbage can, an empty ashtray or a Dixie cup. It is the act of spitting it out that evidenced what can only be seen as an unequivocal intention to dispose of it. He was clearly finished with it and had no intention of preserving it. He abandoned it.

… [T]o suggest that the appellant was compelled by state intervention to dispose of his gum is in error. The act of the officer holding out the Dixie cup did not cause the appellant to discard the gum; it merely provided an opportunity for the police to collect it. The actions of the appellant were voluntary. He was free to choose to participate in the gum survey, free to choose whether to discard the gum and where to dispose of it. He was not compelled to put his gum into the cup, although it was suggested that he do so. We agree with the trial judge’s conclusion that the appellant voluntarily discarded the gum as garbage, in a public setting and not in custody. The appellant abandoned his privacy interest.

I agree with the court’s reasoning that this distinction was one of practical urgency, and not such that it would amount to intervention on the part of the state so as to vitiate a finding of abandonment. Further, I have come to realize that the unease regarding this undercover operation that I felt upon my first reading of this decision really goes to the fundamental issues of abandonment decided in Patrick: I tend to prefer Justice Abella’s opinion that, subject to a countervailing state interest, an abandonment of a privacy interest is not incidental to an abandonment of a property interest. This opinion was in the minority; further, considering the reasonable and probable grounds to believe that the accused was a suspect, such a state interest existed here anyway (as Justice Abella found one existed in Patrick.) And so, I find nothing to detract from a belief that the Supreme Court of Canada was correct in its decision to deny leave to appeal in R. v. Delaa.

Twenty years removed from California v. Greenwood, the probative value of warrantless garbage searches has increased exponentially.  Scientific and technological developments have laid siege on the conceptual space where individuals can operate undetected.  A host of new technologies, chief among them DNA profiling, have allowed agents of the state to wrest previously unimaginable amounts of information from seemingly mundane sources: strands of hair, discarded gum and the like.  Accordingly, searching through garbage has become an increasingly effective investigative tool employed by the police.  From a law enforcement perspective, garbage searches make a lot of sense.  They tend to be low risk, are easily undertaken, not particularly disruptive and can be extremely fruitful.

In R. v. Patrick, 2009 SCC 17 the Supreme Court of Canada was charged with balancing two competing policy concerns, the preservation of privacy interests on the one hand, and effective law enforcement on the other.  The facts in Patrick have been ably canvassed on this website by TheCourt.ca’s Kevin Tilley.  For the purposes of this post, however, what is important to know is that on six occasions the police searched opaque garbage bags located outside Mr. Patrick’s home, but — significantly — the bags were located just inside the property line.  A majority of the Alberta Court of Appeal found that Mr. Patrick had no reasonable expectation of privacy in said garbage bags.  Writing in dissent, Conrad J.A. found that Mr. Patrick had both a territorial and an informational privacy interest in his garbage, (for analysis of the ABCA decision, see my previous post, here which unabashedly favoured Conrad J.A.’s dissent).

In many respects, Patrick is a canonical case in section 8 Charter jurisprudence: it arguably represents the triumph of risk analysis over the normative approach; many are also likely to view it as a substantial watering down of the privacy-centred approach to search and seizure first articulated in Hunter v. Southam [1984] 2 S.C.R. 145. The subject of this post, however, is the issue of abandonment — the central topic on which Binnie J. (writing for the majority), and Abella J., (who concurred in result) differed.  Although Binnie and Abella JJ. arrive at the same verdict, the different manner in which each judge conceptualizes abandonment bespeaks fundamental differences about the organizing principles of s. 8 of the Charter.

Binnie J. on Abandonment

Binnie J, identified the litmus test for abandonment as “whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.”  In applying this test to the facts in Patrick, Binnie J. was clearly alive to the distinction between abandonment of property interests and abandonment of privacy interests:

Clearly, the appellant intended to abandon his proprietary interest in the physical objects themselves.  The question is whether he had a reasonable continuing privacy interest in the information which the contents revealed to the police.

However, the manner in which Binnie J. distinguishes between abandonment of property and abandonment of privacy is more academic then it is substantive.  He balks at the notion that s. 8 would protect “an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable.”  Instead, what Binnie J. proposes, is “a reasonable cut-off point,” which he proceeds to identify as a product of the “conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information”.”  As it turns out, the impugned conduct that caused Mr. Patrick to forfeit his privacy interests in his garbage occurred at the very moment when he forfeited his property interests:

Here, I believe, abandonment occurred when the appellant placed his garbage bags for collection in the open container at the back of his property adjacent to the lot line.  He had done everything required of him to commit his rubbish to the municipal collection system.  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.

Significantly, the factors that Binnie J. relies on to discern the presence of abandonment correspond with the bundle of rights commonly associated with property: the right to control, exclude and transfer.  In forfeiting these rights to inter alia garbage collectors, “street people”, “bottle pickers” and ”urban foragers”, Mr. Patrick also forfeited privacy interests.  Moreover, this curious correlation between property interests and privacy interests is not limited to the circumstances that characterize Mr. Patrick’s dwelling, as Binnie J. explains:

Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal.  To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.

The relationship between property and privacy that emerges is an epiphenomenal one: they are distinct concepts, but the former informs the latter.  Binnie J.’s account of abandonment, then, underscores the fact that, despite Dickson C.J.’s proclamation in Hunter v. Southam that s. 8 of the Charter “protects people, not places,” property, not privacy is often the fundamental determinant of the s. 8 Charter protection against search and seizure.

Abella J.’s Approach

Abella J. begins her decision with a reference to the informational richness of garbage: “What we inelegantly call ‘garbage’ may contain the most intensely personal and private information about ourselves.”  In her view, the main privacy interest at stake in Patrick is informational in character.  Bearing this in mind, Abella J. suggests that Binnie J. over-emphasized the importance of abandonment in his assessment of whether or not a reasonable expectation of privacy attached to Mr. Patrick’s garbage:

Abandonment is merely one factor under the Tessling analysis.  In my view, other factors, including whether the search exposed intimate details of an individual’s life  and the location of the search at or in close proximity to the property line, militate in favour of finding a reasonable expectation of privacy in such information.  Abandonment can be seen more as relating to the objects contained in the waste, rather than to the information they reveal or to one’s  privacy interest in that information.  It seems to me to be reasonable to infer that most individuals do not intend that that personal information will ever be disclosed without a countervailing legitimate state interest.

Far from Binnie J.’s approach, where abandonment of privacy interests is largely incidental to abandonment of property interests, Abella J.`s account views informational privacy as closely guarded, irrespective of the retention of a property interest.  Further along in her judgment, she applies this conception of abandonment specifically to garbage:

Individuals who put out their household waste as “garbage” expect that it will reach the waste disposal system: nothing more, nothing less.  No one would reasonably expect the personal information contained in their household waste to be publicly available for random scrutiny by anyone, let alone the state, before it reaches its intended destination.  Household waste, it is true, is composed of abandoned items that the occupant of the household may no longer wish to keep in his or her home.  In my view, however, it is a further and unwarranted step to conclude that these individuals have abandoned the expectation, reasonable in my view, that the personal information emanating from their home will remain private.

The use of the word “emanating” is most probably a reference to the Supreme Court’s decision, also authored by Binnie J., in R. v. Tessling [2004] 3 S.C.R. 432, which overturned an Ontario Court of Appeal decision penned by Abella J.  Tessling, broadly speaking, stands for the proposition that no reasonable expectation of privacy existed in heat emanations from a home as gleaned by a Forward Looking Infra Red (FLIR) camera.  It would therefore seem to militate against finding a reasonable expectation of privacy gleaned from Mr. Patrick’s garbage.  However, Binnie J. qualified his finding by suggesting that if FLIR imaging were to become more informationaly rich, then it would implicate informational privacy.  From this, Abella J. reasoned that warrantless garbage searches, which, unlike FLIR imaging are informationaly rich, ought to attract a reasonable expectation of privacy:

The heat emanations at issue in Tessling provide a useful comparator to the information conveyed through an individual’s household waste.   These  emanations were only involuntary to the extent that they reflected undesired by-products of activities voluntarily undertaken within the home.  Yet, even  though he found that there was no search in the police’s use of FLIR technology because the information it revealed was too vague, Binnie J. acknowledged that, with the benefit of more advanced technology to decipher the informational content of the emanations, the conclusion with respect to the existence of a privacy interest could change (para. 55).  In my view, this observation captures the case before us to a significant degree.  Even without the benefit of advanced technology,  rummaging through household waste allows the police to scrutinize private activities within the home.

In other words, the very logic that Binnie J. used to negate a reasonable expectation of privacy in Tessling is what Abella J. uses to justify its existence in Patrick.

The Difference

Underlying Abella and Binnie JJ.’s competing findings on abandonment are radically different views about the interplay between property and privacy.  Binnie J.’s approach – which appears to have carried the day – conflates an abandonment of property interests with an abandonment of privacy.  Abella J. on the other hand, believes that privacy interests often long outlast the abandonment of property.