Friday, May 15, 2009

Refuse Profiling? The Supreme Court of Canada decision in R. v. Patrick

In 2003, Calgary police suspected Russell Stephen Patrick of operating an ecstasy lab in his home. They conducted six warrantless searches of garbage bags Patrick left on his property for garbage collection. The seized bags were opaque and situated in cans positioned on top of a garbage receptacle built into his fence. Officers had to reach across the property line to take the garbage. On the basis of the items seized, a search warrant for his home was obtained and upon its execution he was charged with unlawfully producing, possessing, and trafficking a controlled substance in contravention of the Controlled Drugs and Substances Act.

The trial judge held that Patrick did not have a reasonable expectation of privacy in the items seized from his garbage. The validity of the ensuing warrant was therefore upheld. This judgment was affirmed by the Alberta Court of Appeal which agreed that Patrick abandoned any privacy interest he had in the items by leaving them out for collection; and any trespass on his property was of a de minimis nature and did not violate his right to be free from unreasonable search and seizure under s.8 of the Canadian Charter of Rights and Freedoms.

In R. v. Patrick, the Supreme Court of Canada upheld his conviction and dismissed the appeal. Justice Binnie, with concurring reasons from Justice Abella, held that Patrick had no expectation of privacy in the garbage, having abandoned it.

The court asked whether the actions of the accused, objectively viewed, would lead to a conclusion that Patrick continued his privacy interest(s) in the garbage. To answer this, the court adopted ‘The Totality of Circumstances Test’, which asks two primary questions:

(1) was there a subjective expectation of privacy; and
(2) was this expectation objectively reasonable.

Even though Patrick may have had a subjective expectation of privacy, the court relied on the issue of abandonment to answer the second question in the negative, finding no objective expectation of privacy in the garbage. Abandonment had occurred when Patrick placed the garbage out for collection in an unlocked receptacle on the boundary line of his property. As such, the court found that no violation of section 8 had occurred.

Justice Abella, in a concurring opinion (which does appear to dissent in part at times), did take issue with the State’s intrusion into one’s garbage issue. She indicates that:

“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.”

She noted that there must be a “reasonable suspicion that a crime has been or is likely to be committed” before police should be allowed to search through ones garbage. Finding that such a suspicion existed in the present case, Justice Abella also found no violation of section 8.

The implications of this decision are particularly disturbing. It permits the authorities to profile problem neighbourhoods or problem buildings. In fact, Justice Binnie expressly noted that:

“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.” (emphasis added)

There are many “problem” buildings in large urban cities like Toronto, Calgary and Vancouver. The decision in R. v. Patrick expressly permits the targeting and profiling of low income apartment buildings. “Reasonable suspicion” is an amorphous term that grants considerable power and discretion to the authorities. The decision effectively ignores the reality of how most Canadians dispose of their garbage. It implicitly privileges the living conditions of the middle class and upper class who enjoy a higher threshold of “reasonable suspicion” for criminal activity. The poor, marginalized and economically disadvantaged have always ‘enjoyed’ a lower threshold of “reasonable suspicion” for criminal activity.

Patrick may have been a producer of ecstasy, but the decision is far from bliss.

Professor Emir Aly Crowne Mohammed, and
Michael Barbero (Law II) University of Windsor, Faculty of Law

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