James Morton, National Post
Published: Tuesday, April 14, 2009
Last Thursday's Supreme Court of Canada decision upholding a search of a drug dealer's garbage bags is sensible and reflects a genuine concern for a balance between liberty and law enforcement.
Russell Stephen Patrick, a former national swimming star, was operating an Ecstasy lab in his Calgary home. On several occasions, police officers conducted a search of Patrick's garbage, which involved seizing garbage bags located inside garbage cans in a receptacle at the back of his house. The bags had been put out for trash collection and were readily accessible to the public. Nonetheless, the officers did have to reach on to Patrick's property to get the garbage bags. The police found items in at least four bags that were suggestive of an Ecstasy lab operation.
These items were used to obtain a search warrant for Patrick's residence and, unsurprisingly, the Ecstasy lab was discovered.
At trial in 2006, the court dealt with the admissibility of the evidence obtained from the police search. The trial judge held that Patrick did not have a reasonable expectation of privacy over the items seized from his garbage, and that the search of his home was lawful. Patrick was convicted of unlawfully producing, possessing and trafficking Ecstasy. Patrick was sentenced to four years in prison. On Thursday, the Supreme Court ruled that the garbage search was reasonable and, as a result, Patrick's conviction should be upheld.
The Supreme Court's decisions on privacy are not always easy to reconcile. In one case, the court held sniffer dogs cannot properly be used at bus stations to find contraband, while in another case the court allowed the use of heat-detecting aircraft for peering into people's homes to find grow operations. Thursday's decision laboured to distinguish when privacy rights trump society's right to be free from crime.
The court held that the issue of privacy cannot turn on what is being kept private. A criminal has the same privacy rights as a law-abiding citizen. The question is not whether there was proof of illegal activity in the garbage bags, as opposed to embarrassing but legal materials, but rather whether there is some entitlement to privacy in trash.
As a purely legal matter, until actually disposed of, Patrick's garbage was still his property -- and as the English proverb notes, one man's garbage is another's treasure. Certainly, as the court found, there can be a privacy interest in garbage. Clues to people's most private traits and affairs can be found in their garbage. Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public. The court recognized this, saying "a garbage bag may more accurately be described as a bag of 'information' whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder's activities and lifestyle."
On the other hand, Patrick planned to dispose of the garbage. Once it was thrown away and off the property, how could Patrick complain about it being taken by anyone, including the police? This is the critical point that underpinned the court's decision. Patrick had put his trash out for collection; as soon as he did so, he abandoned the right to privacy for the information in the garbage.
The majority of the Supreme Court judges found that since the garbage had been "abandoned" there was no need for the court to consider the privacy issue more closely. Nevertheless, the court made it very clear that, absent the abandonment, there was a legitimate privacy interest which would have merited protection. The court took a position that protects privacy rights but allows for law enforcement: If you throw away information, you run the risk of it becoming public; if you want to keep something private, don't put it in the garbage.
When the rights of accused are at stake extreme positions are common. Some argue that police efficiency ought to trump rights -- if you have nothing to hide why should a search bother you -- while others make extravagant claims for privacy rights ignoring the fact that crime itself limits freedom in society. The court took a middle ground and protected privacy while allowing for law enforcement.
- James Morton is a Toronto lawyer who teaches evidence at Osgoode Hall Law School. He is a past president of the Ontario Bar Association.
Published: Tuesday, April 14, 2009
Last Thursday's Supreme Court of Canada decision upholding a search of a drug dealer's garbage bags is sensible and reflects a genuine concern for a balance between liberty and law enforcement.
Russell Stephen Patrick, a former national swimming star, was operating an Ecstasy lab in his Calgary home. On several occasions, police officers conducted a search of Patrick's garbage, which involved seizing garbage bags located inside garbage cans in a receptacle at the back of his house. The bags had been put out for trash collection and were readily accessible to the public. Nonetheless, the officers did have to reach on to Patrick's property to get the garbage bags. The police found items in at least four bags that were suggestive of an Ecstasy lab operation.
These items were used to obtain a search warrant for Patrick's residence and, unsurprisingly, the Ecstasy lab was discovered.
At trial in 2006, the court dealt with the admissibility of the evidence obtained from the police search. The trial judge held that Patrick did not have a reasonable expectation of privacy over the items seized from his garbage, and that the search of his home was lawful. Patrick was convicted of unlawfully producing, possessing and trafficking Ecstasy. Patrick was sentenced to four years in prison. On Thursday, the Supreme Court ruled that the garbage search was reasonable and, as a result, Patrick's conviction should be upheld.
The Supreme Court's decisions on privacy are not always easy to reconcile. In one case, the court held sniffer dogs cannot properly be used at bus stations to find contraband, while in another case the court allowed the use of heat-detecting aircraft for peering into people's homes to find grow operations. Thursday's decision laboured to distinguish when privacy rights trump society's right to be free from crime.
The court held that the issue of privacy cannot turn on what is being kept private. A criminal has the same privacy rights as a law-abiding citizen. The question is not whether there was proof of illegal activity in the garbage bags, as opposed to embarrassing but legal materials, but rather whether there is some entitlement to privacy in trash.
As a purely legal matter, until actually disposed of, Patrick's garbage was still his property -- and as the English proverb notes, one man's garbage is another's treasure. Certainly, as the court found, there can be a privacy interest in garbage. Clues to people's most private traits and affairs can be found in their garbage. Personal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public. The court recognized this, saying "a garbage bag may more accurately be described as a bag of 'information' whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder's activities and lifestyle."
On the other hand, Patrick planned to dispose of the garbage. Once it was thrown away and off the property, how could Patrick complain about it being taken by anyone, including the police? This is the critical point that underpinned the court's decision. Patrick had put his trash out for collection; as soon as he did so, he abandoned the right to privacy for the information in the garbage.
The majority of the Supreme Court judges found that since the garbage had been "abandoned" there was no need for the court to consider the privacy issue more closely. Nevertheless, the court made it very clear that, absent the abandonment, there was a legitimate privacy interest which would have merited protection. The court took a position that protects privacy rights but allows for law enforcement: If you throw away information, you run the risk of it becoming public; if you want to keep something private, don't put it in the garbage.
When the rights of accused are at stake extreme positions are common. Some argue that police efficiency ought to trump rights -- if you have nothing to hide why should a search bother you -- while others make extravagant claims for privacy rights ignoring the fact that crime itself limits freedom in society. The court took a middle ground and protected privacy while allowing for law enforcement.
- James Morton is a Toronto lawyer who teaches evidence at Osgoode Hall Law School. He is a past president of the Ontario Bar Association.
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