For the London Free Press – May 11, 2009

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In R. v. Patrick, released by the Supreme Court of Canada last month, the court considered whether one has a reasonable expectation of privacy over the contents of garbage once it’s put out at the curb.

The issue arose from the defendant’s contention that police breached his constitutional right to be free from unreasonable search and seizure when it took his garbage bags.

Police suspected the defendant was operating an ecstasy lab, so they seized bags of garbage he had placed at the rear of his property beside a public alley. It’s notable that police actually had to reach over the property line to obtain the garbage bags.

The Supreme Court ultimately held that the defendant had abandoned his privacy interest when he placed the garbage bags for collection where they were accessible to any passerby.

In assessing the reasonableness of a privacy interest, the court said it should look at the “totality of the circumstances” and indicated that its decision might have been different if the garbage had been on a porch or in a garage.

Indeed, in determining whether someone has “abandoned” property, the Supreme Court said courts should consider both the location of the discarded property and the intention of the privacy claimant.

Some privacy advocates prefer the dissenting but concurring opinion in the case, which said there should be a reasonable suspicion of criminal activity before somebody’s trash can be perused, but this dissent wasn’t the opinion of the court as a whole.

The dissenting opinion was that household waste left for disposal is only “abandoned” for the specific purpose of reaching the waste disposal system. Therefore, the homeowner’s privacy interest in regard to personal information was not abandoned when trash was put out at the curb.

In any event, the dissenting opinion held that there was evidence of reasonable suspicion before the police obtained the garbage bags.

It’s important to point out that R. v. Patrick is a criminal case, so strictly speaking it does not apply to civil matters. But until a court decides otherwise, it is reasonable to assume that the same logic would apply to civil matters.

In the criminal context, the decision puts restrictions on how police investigations should be conducted to ensure any evidence obtained will be admissible in court.

For the average person or business, Patrick simply reinforces the need to be careful what you throw out. Because, depending on where your garbage ends up, it could be used by anybody — and you could be left with no legal recourse.

If you’re disposing of sensitive information that’s to specific privacy obligations, privacy laws dictate that it must be destroyed first.

But the bottom line in Patrick is this: if you’re going to throw out any sensitive information, destroy it first.