Yesterday the Supreme Court of Canada issued its judgement in R. v. Patrick. It unanimously held that the police did not violate an accused person’s right to be from unreasonable search and seizure by seizing information:
- mixed in with garbage…
- in opaque garbage bags…
- inside garbage cans without lids…
- that were placed in an open receptacle…
- on the accused individual’s property.
The case is about the concept of abandoning one’s subjective expectation of privacy. In a memorandum written by Binnie J., the six-judge majority framed the test for abandonment as follows: ” The question is 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.” The majority held that this test was satisfied in the circumstances, taking special note of the identifying information that would be mixed-in with the accused individual’s household garbage long after the “bag of information” itself was no longer sitting outside of his home:
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. There was some discussion at the bar that a privacy interest does not cease until garbage becomes “anonymous”, but as Conrad J.A. noted, much garbage never becomes anonymous, e.g. addressed envelopes, personal letters and so on. In this case, the garbage included invoices for the purchase of chemicals used in the preparation of the drug Ecstasy. The idea that s. 8 protects an individuals’s [sic] privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house. Yet if there is to be a reasonable cut-off point, where is it to be located? The line must be easily intelligible to both police and homeowners. Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, the reasonableness line must relate to 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”.
This reasoning limits the impact of the majority judgement. It is about the reasonableness of asserting an expectation of privacy after disposing of household waste in a manner that leaves it identifiable. The outcome may have differed if the accused individual had shredded his bills and other identifying information.
At the same time, the majority did make some more principled comments about the right to be free from unreasonable search and seizure. Here are two other “quotables”:
- On the perspective from which section 8 disputes are assessed: “Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long‑term consequences of government action for the protection of privacy.”
- On whether one can have an interest in information that reveals criminal activity: “A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.”
Abella J. wrote a concurring opinion on her own. She held that the accused individual had a reduced expectation of privacy in the circumstances, but that this expectation was sufficient to warrant intrusion based on the “reasonable suspicion” standard. She stressed the sensitivity of the personal information contained in household waste and, unlike the majority, noted that the manner in which household waste is disposed is not entirely voluntary.
For more, see David Fraser’s comment here. David’s comment also raises the issue of voluntariness.
All About Information 
So, we’ve got some guidance on physical trash. What about e-trash? Deleted e-mails or other documents which may be retrievable through backup tapes and other methods? I suspect that work environments have this question better answered than private homes.
Thanks for the comment Wendy!
I might be accused of over-simplification, but I really do think the practical takeaway of this case is about secure disposal. And it applies equally to “e-trash.” Recall the test for abandonment is whether an individual’s continued assertion of a privacy interest is reasonable in the circumstances, those circumstances including how that person has disposed of or handled the information. If a person disposes of electronic media in a way that allows for recovery of information, the case says that the state may “have at” the information as may any other private actor.
There is likely room for argument about what standard for disposal for e-trash ought to be deemed to be reasonable. I’m no technical expert, but I have reason to believe that data can be recovered from a re-formatted hard drive. If a person takes pains to re-format a hard drive and drops his/her computer off at a local pawn shop, should the police be able to make a purchase and “have at” the data? Should pragmatism prevail against a stricter standard? Good questions.
Thanks again!