R v Patrick and the Lingering Significance of Property in Section Eight Charter Jurisprudence

Almost twenty-five years ago, Chief Justice Dickson famously proclaimed in Hunter v Southam, [1984] 2 SCR 145 [Hunter], that s. 8 of the Charter “protects people not places.” In so doing, Dickson CJ dislodged property as the primary safeguard against unlawful search and seizure, supplanting it with a vaguely defined notion of a “reasonable expectation of privacy.” The gravity of Dickson CJ’s words in Hunter have not been lost on the legal community. To this day, it is a common, almost obligatory refrain for judges of all stripes to preface any consideration of a section 8 Charter issue with a reference to the shift from a property-based approach to a privacy-based account of search and seizure that was occasioned by Hunter.

Nevertheless, contemporary section 8 Charter jurisprudence is punctuated by the stealth use of property to constitute a ‘reasonable expectation of privacy.’ Such was the case in the majority opinion of the Alberta Court of Appeal in R v Patrick, 2007 ABCA 308 [Patrick], a case which the Supreme Court of Canada heard last week. TheCourt.ca’s Kevin Tilley canvassed the facts in Patrick a few days ago. Briefly however, the issue in the case was whether the warrantless search of Mr. Patrick’s garbage cans, (located on his property) constituted a violation of his section 8 Charter rights. For a majority of the court, Ritter J.A. concluded that it did not.

Informational v Territorial Privacy

The Alberta court’s decision in Patrick hinged in large part on the characterization of Mr. Patrick’s privacy interest in his garbage as “informational” as opposed to “territorial.” Ritter J.A. upheld the trial judge’s finding that he had not erred in the fundamental determination that “Patrick maintained no expectation of privacy in the contents of the garbage, regardless of whether the alleged privacy interest was territorial or institutional.”

However, in a dissenting opinion, Conrad J.A. suggested that both the decision of the trial judge and that of the majority of the Alberta Court of Appeal implicitly cast Mr. Patrick’s privacy interests as purely informational, and thereby facilitated the dismissal of Mr. Patrick’s s. 8 Charter claim. In Conrad J.A.’s opinion, a territorial privacy claim could withstand the argument that Mr. Patrick had abandoned his garbage:

It is apparent, therefore, that the appellant had the right to allege a reasonable expectation of privacy with respect to his home and yard – and any items found therein – independent of many other privacy interests he might have been able to allege, such as his reasonable expectation of his garbage and any information about him that it contained.

The fact that Ritter J.A.’s decision to characterize Mr. Patrick’s privacy interests as informational and not territorial, (at least in Conrad J.A.’s opinion), effectively operated to negate Mr. Patrick’s s. 8 claim is evidence of the lingering significance of property in s. 8 jurisprudence. Courts frequently place a premium on private property when assessing the existence of a reasonable expectation of privacy.

Conflating the Abandonment of Property with Abandonment of Privacy

In Patrick, however, the impugned search of Mr. Patrick’s garbage took place on the outskirts of his private property, (outside of his house, but within the property line). However, the majority relied on the property law concept of abandonment to negate Mr. Patrick’s reasonable expectation of privacy. By abandoning his property interest in garbage, the court reasoned, Mr. Patrick also abandoned his reasonable expectation of privacy therein. This conflating of the abandonment of property interests with the abandonment of privacy is endemic to s. 8 jurisprudence. That Canadian courts frequently infer from the abandonment of property interests a similar abandonment of privacy interests is further evidence of the important role that property still plays in s. 8 jurisprudence. Indeed, it is through abandonment that section 8 claims alleging improper search or seizure of garbage are most commonly defeated.

In R v Krist, [1995] 100 CCC (3d) 58 (BCCA) [Krist], for example, the British Columbia Court of Appeal considered the constitutionality of a seizure by the police of opaque garbage bags placed at the curb (i.e. on public property) for pickup. Writing for a unanimous court, Rowles J.A. identified the issue in Krist as whether “there is a reasonable expectation of privacy in relation to information that may be gleaned from trash which has been abandoned by a householder to the vagaries of municipal garbage disposal.” In other words, once property interests were abandoned, so to was a reasonable expectation of privacy.

Similarly, in R v Joyce, [1996] 95 OAC 321 (ONCA), the Ontario Court of Appeal held that garbage located outside the apartment building where the appellant’s resided had also been abandoned, and accordingly that no reasonable expectation of privacy attached.

The Dissent in Patrick

In light of the increased probative capabilities of law enforcement (especially after the emergence of DNA-profiling technology) it is increasingly difficult dispose of waste in a purely confidential manner. Although it may still be possible to shred a personal document in a way that preserves its confidentiality, it is less feasible to eliminate all traces of one’s DNA. Informational privacy, in other words, is increasingly subject to invasive law enforcement technologies.

Conrad J.A.’s dissent in Patrick is one of the few examples in section 8 jurisprudence on garbage where informational privacy interests were actually acknowledged. For example, Conrad J.A. suggested that the fact that Mr. Patrick had placed his trash in opaque garbage bags militated towards recognizing a reasonable expectation of informational privacy in his garbage.

Therefore, to hold that only garbage that is disposed of in a secure way carries with it a reasonable expectation of privacy is to prima facie negate privacy interests in a variety of informationally rich sources of garbage that simply defy secure disposal. The present approach to abandonment, then, attests to the significant role played by property in colouring section 8 jurisprudence with respect to all garbage that cannot be disposed of in a confidential manner.

Patrick and the Supreme Court of Canada 

Conrad J.A.’s dissent in Patrick, and in particular her willingness to recognize Mr. Patrick’s informational privacy interests, has effectively provided the SCC with a basis for choosing to reject the highly property-influenced decisions on garbage searches that continues to dominate s. 8 Charter jurisprudence. It seems likely, however, that the approach taken by the majority of the Alberta Court of Appeal will carry the day. Almost a quarter century after Dickson J.’s famous proclamation in Hunter, property continues to loom large in s. 8 Charter jurisprudence.