R. v. Patrick: The Supreme Court Kicks Informational Privacy to the Curb

More than twenty years ago, the late Justice William J. Brennan of the U.S. Supreme Court penned an impassioned dissent in California v. Greenwood, 486 U.S. 35 (1988) to a majority opinion that denied the existence of a reasonable expectation of privacy in garbage.  “A single bag of trash” Justice Brennan wrote, “testifies eloquently to the eating, reading and recreational habits of the person who produced it.”  For Brennan J., the implication of the probative value of garbage was that, informationally speaking, warrentless searches of garbage engaged a reasonable expectation of privacy in a manner not unlike territorial searches: “Like riffling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships and romantic interests.”

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.

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