R. v. Patrick

R. v. Patrick
Collection
Supreme Court Judgments
Date
2009-04-09
Neutral citation
2009 SCC 17
Report
[2009] 1 SCR 579
Case number
32354
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 32354
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579
Date: 20090409
Docket: 32354
Between:
Russell Stephen Patrick
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of British Columbia,
Attorney General of Alberta, Canadian Civil Liberties Association
and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 75)
Concurring Reasons :
(paras. 76 to 92)
Binnie J. (McLachlin C.J. and LeBel, Fish, Charron and Rothstein JJ. concurring)
Abella J.
______________________________
R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579
Russell Stephen Patrick Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of
British Columbia, Attorney General of Alberta, Canadian
Civil Liberties Association and Criminal Lawyers’
Association (Ontario) Interveners
Indexed as: R. v. Patrick
Neutral citation: 2009 SCC 17.
File No.: 32354.
2008: October 10; 2009: April 9.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Search and seizure — Privacy interest — Abandonment — Police taking garbage bags placed for collection at edge of accused’s property without warrant — Whether police breached accused’s right to be free from unreasonable search and seizure — Whether accused abandoned his privacy interest in contents of garbage bags when he placed them at edge of his property for collection — Canadian Charter of Rights and Freedoms, s. 8 .
The police suspected that P was operating an ecstasy lab in his home. On several occasions, they seized bags of garbage that P had placed for collection at the rear of his property adjacent to a public alleyway. The police did not have to step onto P’s property to retrieve the bags but they did have to reach through the airspace over his property line. The police used evidence of criminal activity taken from the contents of P’s garbage to obtain a warrant to search P’s house and garage. More evidence was seized during the search. At his trial, P argued that the taking of his garbage bags by the police constituted a breach of his right guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure. The trial judge held that P did not have a reasonable expectation of privacy in the items taken from his garbage and, therefore, the seizure of the garbage bags, the search warrant and the search of P’s dwelling were lawful. He admitted the evidence and convicted P of unlawfully producing, possessing and trafficking in a controlled substance. A majority of the Court of Appeal upheld the convictions.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Binnie, LeBel, Fish, Charron and Rothstein JJ.: The police did not breach P’s right to be free from unreasonable search and seizure. When P’s conduct is assessed objectively, he abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public. P did everything required to rid himself of the items taken as evidence. His conduct was incompatible with any reasonable expectation of confidentiality. Neither the search of the contents of P’s garbage nor the subsequent search of P’s dwelling breached s. 8 of the Charter . The evidence seized in both searches was admissible at P’s trial. [2] [12‑13] [73]
To describe something as “garbage” tends to presuppose the point in issue, namely whether P had any continuing privacy interest in it. It seems that while he had no further interest in physical possession, he had a continuing interest (viewed subjectively) in keeping private the information embedded in the contents. In such a case, however, the question becomes whether he so dealt with the items put out for collection in such a way as to forfeit any reasonable expectation (objectively speaking) of keeping the contents confidential, i.e. whether there had been abandonment. [13]
Expectation of privacy is a normative standard. 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. [14]
In assessing the reasonableness of a claimed privacy interest, the Court is to look at the “totality of the circumstances”, and this is so whether the claim involves aspects of personal privacy, territorial privacy, or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context and first involves an analysis of the nature or subject matter of the evidence in issue. Here both P and the police rightly regarded the subject matter to be information about what was going on inside his home. The court must then consider whether the claimant had a direct interest in the evidence and a subjective expectation of privacy in its informational content. The “reasonableness” of that belief in the totality of the circumstances of a particular case is to be tested only at the second objective branch of the privacy analysis. [26-27] [36-37]
Abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right that he or she had ceased to have a reasonable expectation of privacy with regard to it at the time it was taken by the police or other state authority. Being an inference from the claimant’s own conduct, a finding of abandonment must relate to something done or not done by 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”. [22] [54]
The reasonableness of an expectation of privacy varies with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion. In this case, P’s garbage was put out for collection in the customary location for removal at or near his property line and there was no manifestation of a continuing assertion of privacy or control. Territorial privacy is implicated in this case because the police reached across P’s property line to seize the bags; however, the physical intrusion by the police was relatively peripheral and, viewed in context, is better seen as pertaining to a claim of informational privacy. P’s concern was with the concealed contents of the garbage bags which, unlike the bags, were clearly not in public view. [38‑41] [45] [53]
Objectively speaking, P abandoned his privacy interest in the information when he placed the garbage bags for collection at the back of his property adjacent to the lot line. He had done everything required of him to commit the bags to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in the 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. However, until garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition. It could not be said to have been unequivocally abandoned if it is placed on a porch or in a garage or within the immediate vicinity of a dwelling. Abandonment in this case is a function both of location and P’s intention. [55] [62]
Since P had abandoned his garbage before it was seized by the police, he had no subsisting privacy interest at the time it was seized. The police conduct was objectively reasonable. P’s lifestyle and biographical information was exposed, but the effective cause of the exposure was the act of abandonment by P, not an intrusion by the police into a subsisting privacy interest. [69-71]
Per Abella J.: Concurring in the conclusion that no Charter violation occurred, but disagreeing with the characterization of the privacy issues at stake. The home is the most private of places. Personal information emanating from the home that has been transformed into household waste is entitled to protection from indiscriminate state intrusion. Household waste left for garbage disposal is “abandoned” for a specific purpose — so that garbage will reach the waste disposal system. What has not been abandoned is the homeowner’s privacy interest attaching to personal information. Individuals do not intend that this information, such as medical or financial information, will be generally accessible to public scrutiny, let alone to the state. [77] [79] [85] [89]
The fact that what is at issue is waste left out for collection, however, argues for a diminished expectation of privacy. But the state should have at least a reasonable suspicion that a criminal offence has been or is likely to be committed before conducting a search. In this case, the evidence amply supported such a suspicion. [77] [90‑91]
Cases Cited
By Binnie J.
Applied: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; explained: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Edwards, [1996] 1 S.C.R. 128; distinguished: R. v. Plant, [1993] 3 S.C.R. 281; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Grant, [1993] 3 S.C.R. 223; R. v. Wiley, [1993] 3 S.C.R. 263; not followed: R. v. Andrews, [2005] J.Q. no 8595 (QL); referred to: R. v. Monney, [1999] 1 S.C.R. 652; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Kennedy, [1992] O.J. No. 1163 (QL), aff’d (1996), 95 O.A.C. 321 (sub nom. R. v. Joyce and Kennedy); R. v. Papadopoulos, [2006] O.J. No. 5407 (QL); R. v. Paul (2004), 117 C.R.R. (2d) 319; R. v. Briere, [2004] O.J. No. 5611 (QL); R. v. Marini, [2005] O.J. No. 6197 (QL); R. v. Rodney, [1990] 2 S.C.R. 687; R. v. Sherratt (1989), 49 C.C.C. (3d) 237, aff’d [1991] 1 S.C.R. 509; R. v. Kinkead, [1999] O.J. No. 1458 (QL), aff’d (2003), 67 O.R. (3d) 57; R. v. Love (1995), 102 C.C.C. (3d) 393; R. v. Leaney, [1989] 2 S.C.R. 393; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Kang-Brown, 2006 ABCA 199, 210 C.C.C. (3d) 317, rev’d 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; Lacroix v. The Queen, [1954] Ex. C.R. 69; Dahlberg v. Naydiuk (1969), 10 D.L.R. (3d) 319; Lewvest Ltd. v. Scotia Towers Ltd. (1981), 126 D.L.R. (3d) 239; Anchor Brewhouse Developments Ltd. v. Berkley House (Docklands Developments) Ltd., [1987] 2 E.G.L.R. 173; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Krist (1995), 100 C.C.C. (3d) 58; R. v. Taylor, [1984] B.C.J. No. 176 (QL); R. v. Tam, [1993] B.C.J. No. 781 (QL); R. v. Allard, 2006 QCCQ 3080, [2006] J.Q. no 3377 (QL); R. v. Barrelet, 2008 QCCS 3765, [2008] J.Q. no 7991 (QL); California v. Greenwood, 486 U.S. 35 (1988); People v. Krivda, 486 P.2d 1262 (1971); State v. Morris, 680 A.2d 90 (1996); R. v. Mills, [1999] 3 S.C.R. 668; R. v. Duarte, [1990] 1 S.C.R. 30.
By Abella J.
Applied: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; referred to: California v. Greenwood, 486 U.S. 35 (1988); R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Silveira, [1995] 2 S.C.R. 297; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney, [1999] 1 S.C.R. 652; Litchfield v. State, 824 N.E.2d 356 (2005).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
City of Calgary, Bylaw No. 20M2001, Waste Bylaw, ss. 4, 19 [am. 38M2003].
Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 5(1) , (2) , 7 .
Authors Cited
Ziff, Bruce. Principles of Property Law, 2nd ed. Toronto: Thomson/Carswell, 1996.
APPEAL from a judgment of the Alberta Court of Appeal (Conrad, Ritter and Watson JJ.A.), 2007 ABCA 308, 417 A.R. 276, 81 Alta. L.R. (4th) 212, [2008] 1 W.W.R. 600, 227 C.C.C. (3d) 525, 410 W.A.C. 276, 161 C.R.R. (2d) 159, [2007] A.J. No. 1130 (QL), 2007 CarswellAlta 1374, affirming the accused’s convictions entered by Wilkins Prov. Ct. J., 2005 ABPC 242, 388 A.R. 202, [2005] A.J. No. 1527 (QL), 2005 CarswellAlta 1632. Appeal dismissed.
Jennifer Ruttan and Michael Bates, for the appellant.
Ronald C. Reimer, Paul Riley and Monique Dion, for the respondent.
Michal Fairburn, for the intervener the Attorney General of Ontario.
Mary T. Ainslie, for the intervener the Attorney General of British Columbia.
Goran Tomljanovic, Q.C., for the intervener the Attorney General of Alberta.
Jonathan C. Lisus and Alexi N. Wood, for the intervener the Canadian Civil Liberties Association.
Constance Baran‑Gerez, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Binnie, LeBel, Fish, Charron and Rothstein JJ. was delivered by
[1] Binnie J. — The appellant was convicted of unlawfully producing, possessing and trafficking in a controlled substance (Ecstasy) based in part on evidence gathered by the police from the appellant’s garbage. The items of interest to the police, including drug-making paraphernalia, provided the primary basis for a search warrant of his dwelling. The appellant contends that the police inspection of his garbage amounted to a search and seizure and was unreasonable within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms . Further, he says the evidence taken from the garbage, and other evidence obtained under the subsequent search warrant, should be excluded on the basis that its admission would bring the administration of justice into disrepute.
[2] In my view, the appellant’s initial privacy interest in the evidence was abandoned when he placed the bags for collection as garbage from a stand indented in the back fence of his Calgary home adjacent to a public alleyway, to which any passing member of the public had ready access. The police had no greater access in this regard than the public, but their access was no less. At that point, the appellant had done everything required to rid himself of the contents, including whatever private information was embedded therein, and this conduct, I believe, was inconsistent with the continued assertion of a constitutionally protected privacy interest. I would therefore dismiss the appeal.
I. Facts
[3] Police investigators suspected that the appellant was operating an ecstasy lab in his home located in southeast Calgary. On several occasions, they grabbed bags located inside garbage cans placed on a stand (without lids) just inside his property line. The fence was located approximately 17 metres to the rear of his house, parallel to and contiguous to a back alleyway. It was constructed so that the garbage was visible from the alley but shielded from the sight of persons in the appellant’s house or back garden. The stand did not have any doors. Nonetheless, the officers did have to reach through the airspace over the property line in order to retrieve the bags. The items seized by the police included torn-up papers containing chemical recipes and instructions, gloves, used duct tape, paper towel sheets, packaging for rubber gloves, packaging for a digital scale, a product card for a vacuum pump, a balloon, a receipt for muriatic acid and an empty clear plastic bag with residue inside. Some of the items bore a detectable odour of sassafras oil and some were found to be contaminated with ecstasy.
[4] The trial, which proceeded on the basis of an agreed Statement of Facts, consisted essentially of a voir dire to determine the admissibility of the evidence obtained from the garbage. The appellant contended that without the garbage the police would not have been able to obtain the warrant to search his home. The result, he says, is that the evidence was gathered in breach of his s. 8 rights. Given the seriousness of the breach, the admission of such evidence, he says, would bring the administration of justice into disrepute and it ought to have been excluded. As there then remained insufficient evidence upon which a properly instructed jury could convict, the appellant argued that he should be acquitted of all charges.
[5] The trial judge held that the appellant did not have a reasonable expectation of privacy in the items seized from his garbage, and that the search warrant issued subsequently was therefore valid and the search of the appellant’s home was lawful. The evidence was thus admitted. The appellant was convicted of offences in ss. 7 , 5(2) and 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 . The convictions were affirmed by the Alberta Court of Appeal, Conrad J.A. dissenting.
II. Judicial History
A. Provincial Court of Alberta, 2005 ABPC 242, 388 A.R. 202
[6] Wilkins Prov. Ct. J. identified the critical issue in this case as whether the accused had a reasonable expectation of privacy in the contents of the garbage bags. Although the accused did testify during the voir dire, he provided no direct evidence of a subjective expectation of privacy. Such an expectation could be presumed in the circumstances: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432. However, “at some point he has clearly waived that expectation by placing the garbage where he did and abandoning it” (para. 39). Even though the garbage was on private property, “location is not the litmus test for determining the expectation of privacy” (para. 36). Otherwise this could lead to absurd exercises in line-drawing such as the situation of a curbside pile of garbage bags, some of which fall outside the property line while others fall within it, and still others might straddle the line in various proportions (para. 37). His point, as I understand it, is that it would make no sense to give different constitutional treatment to different bags in the same pile based on such legal formalism.
[7] As a result, in his view, the accused had not proven on a balance of probabilities that there was a search and seizure in violation of s. 8 of the Charter . The evidence was therefore admitted and the accused was convicted on all three counts.
B. Alberta Court of Appeal, 2007 ABCA 308, 417 A.R. 276
(1) Ritter J.A. for the Majority
[8] Ritter J.A. held that the items found by the police and afterwards used to obtain the search warrant “reveal[ed] that Patrick was involved in criminal activity and little else”. As such, the items “cannot constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended” (para. 35). In any event, he agreed with the trial judge that the appellant relinquished control over these items, in a practical sense, by placing them in a garbage receptacle to be picked up by the garbage collectors (para. 16). Ritter J.A. observed:
In some cases (Edmonton for example), all household garbage goes to a sorting facility where all bags are opened and sorted so that compostables go to a composting facility, recyclable items are taken to a recycling facility, and the remaining garbage ends up in a landfill. This sorting process, which is carried out by individuals who can see what is in every garbage bag, demonstrates that any expectation of privacy is eliminated in the disposal of garbage. In other cases, much of the household garbage generated by an entire city is transported to disposal sites across great distances. . . . One need only follow a garbage truck a short distance to realize that not all of its contents remain in the truck. Persons to whom garbage is entrusted have neither the obligation nor the means to protect the privacy of its don[or]. [para. 26]
Accordingly, “[a] reasonable perso[n] would not expect that garbage is secure and private, and would conclude that garbage is not obviously private in nature” (para. 41). Ritter and Watson JJ.A. dismissed the appeal.
(2) Conrad J.A. (Dissenting)
[9] Conrad J.A. stated that the contents of the garbage bags disclosed personal and biographical information about the appellant’s lifestyle and personal choices which enabled the police to draw conclusions about what the appellant was doing inside his house. By focussing solely on the objects seized and not on the place where the searches and seizures were carried out, the trial judge failed to take into account a right of territorial privacy with respect to the places where people live and work. While location is only one of the factors to consider with respect to a claim for informational privacy, as the trial judge stated, it is the central focus of the inquiry when the privacy interest claimed is the home and its perimeter. There was no evidence to indicate that the appellant had abandoned his right of privacy with respect to his home and yard and any articles contained therein. The “totality of the circumstances” test is not designed to diminish an owner-occupier’s territorial claim to privacy, but to create the possibility of extending a territorial claim to objects found on property owned by another. Such an extension was intended to enhance, rather than detract from, a citizen’s right to privacy in the home.
[10] As to informational privacy, the accused had not relinquished his privacy interest since the articles were still on his property in opaque sealed bags and subject to his power of retrieval at the time when they were collected by the police. Homeowners reasonably believe that information contained in their garbage will be mixed in with other garbage collected by the municipality and thereby become anonymous. Even where a piece of garbage identifies the homeowner, the vast pile of collected rubbish will make it almost impossible to find.
[11] The appellant therefore had a reasonable expectation of privacy, and his s. 8 rights were breached by the warrantless searches. The evidence thus obtained should have been excluded, the search warrant set aside and the charges dismissed.
III. Issues
[12] At issue is whether the police breached the appellant’s s. 8 Charter protected right to be free from unreasonable search and seizure, specifically:
(a) whether the appellant had a reasonable expectation of territorial privacy with respect to his dwelling-house, its perimeter and the garbage bags stored thereon; and
(b) whether the appellant had a reasonable expectation of informational privacy with respect to the garbage bags and the information stored therein.
(c) If the police breached the appellant’s s. 8 Charter right, whether the evidence seized by the police from the search of the appellant’s dwelling-house and garage, and a second dwelling-house should be excluded pursuant to s. 24(2) of the Charter on the basis that its admission would bring the administration of justice into disrepute.
IV. Analysis
[13] Labels are sometimes misleading. To describe something as “garbage” tends to presuppose the point in issue, namely whether the homeowner had any continuing privacy interest in it. It is possible that the homeowner might have no further interest in physical possession but a very strong interest in keeping private the information embedded in the contents. In that case, the question is whether he or she has so dealt with the items put out for collection in such a way as to forfeit any reasonable expectation (objectively speaking) of keeping the contents confidential.
[14] “Expectation of privacy is a normative rather than a descriptive standard” (Tessling, at para. 42). A government that increases its snooping on the lives of citizens, and thereby makes them suspicious and reduces their expectation of privacy, will not thereby succeed in unilaterally reducing their constitutional entitlement to privacy protection. Equally, however, while a disembarking passenger at the Toronto airport might feel entitled to privacy when emptying his bowels after an intercontinental flight, the obligation to make use of a “drug loo facility” under the supervision of the authorities was upheld in the context of border formalities in R. v. Monney, [1999] 1 S.C.R. 652. 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. This is inherent in the “assessment” called for by Dickson J. (as he then was) in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 159-60:
This limitation on the right guaranteed by s. 8 , whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
Dickson J.’s analysis paid tribute to Katz v. United States, 389 U.S. 347 (1967), and quoted its foundational privacy principle that “the Fourth Amendment protects people, not places” (Stewart J., at p. 351). This was elaborated upon by Harlan J. in Katz in a concurring opinion which gave rise to the twin subjective/objective enquiries into privacy expectations (p. 361).
[15] Thus in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, a majority concluded that a regulatory order to produce business records did not require the prior judicial approval envisaged in Hunter v. Southam, and did not violate s. 8 . Lamer and Wilson JJ. disagreed. Much of the debate turned on whether reasonable people in the position of the accused would or would not expect privacy in the contents of business records in a regulatory environment. See also British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3.
[16] In R. v. Wong, [1990] 3 S.C.R. 36, a majority of the Court found a s. 8 breach in circumstances where the police, without prior judicial authorization, had installed a video surveillance camera in a hotel room whose occupants were suspected of participating in a “floating” gambling operation. In a concurring opinion, Lamer C.J. and McLachlin J. (as she then was) held that s. 8 had not been breached because while “[i]n most cases, a hotel room is a location in which one has a reasonable expectation of privacy” (p. 63), the “room . . . had been effectively converted into a public gaming house” (p. 62) where the accused could “no longer expect that strangers, including the police, will not be present in the room” (p. 63). In substance, they said that the accused had conducted himself in a manner that was inconsistent with the continued (and customary) expectation of privacy that an independent and informed observer would reasonably expect in a closed hotel room.
[17] In R. v. Edwards, [1996] 1 S.C.R. 128, a majority held that an accused “demonstrated” no privacy interest in his girlfriend’s apartment, and police were held entitled to take the drugs found inside during what La Forest J. described as their “constructive break-in” (para. 69). In the view of La Forest J., it was “important for everyone, not only an accused, that police . . . do not break into private premises without [a] warrant” (para. 59). The division squarely reflected the notion, in my opinion, that the asserted expectation of privacy in things located on someone else’s property must be one that an independent and informed observer is prepared to recognize as “reasonable”.
[18] In R. v. M. (M.R.), [1998] 3 S.C.R. 393, the majority concluded that a warrantless frisking of a student for drugs by a high school vice-principal did not violate s. 8 despite the criminal law consequences. The dissent took a broader view of a student’s reasonable expectation in the circumstances, an issue that also recently divided the Court in R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569.
[19] In Tessling, the Court concluded that “it may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private” (para. 38 (emphasis deleted)), without need of testimony from the accused. That, too, reflects what the independent and informed observer would consider reasonable, having regard to the long-term consequences of state action on privacy interests that Canadians have and are constitutionally entitled to have in their homes.
[20] The concept of abandonment is about whether a presumed subjective privacy interest of the householder in trash put out for collection is one that an independent and informed observer, viewing the matter objectively, would consider reasonable in the totality of the circumstances (Edwards, at para. 45, and Tessling, at para. 19) having regard firstly to the need to balance “societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement” (R. v. Plant, [1993] 3 S.C.R. 281, at p. 293); secondly, whether an accused has conducted himself in a manner that is inconsistent with the reasonable continued assertion of a privacy interest and, thirdly, the long-term consequences for the due protection of privacy interests in our society.
[21] As emphasized by the Attorney General of Ontario, the police practice of looking through garbage has in the past been an important source of probative evidence for the courts in the search for truth, including documents related to a murder found in garbage bags left out front of an apartment building and commingled with other residents’ bags (R. v. Kennedy, [1992] O.J. No. 1163 (QL) (Gen. Div.), aff’d (1996), 95 O.A.C. 321 (sub nom. R. v. Joyce and Kennedy)); a burned baseball bat used to beat a person to death found in a dumpster located on a residential property (R. v. Papadopoulos, [2006] O.J. No. 5407 (QL) (S.C.J.), at paras. 4 and 62-63); cans, cups and straws tossed into garbage bins and onto the ground in the public domain from which DNA has been extracted (R. v. Paul (2004), 117 C.R.R. (2d) 319 (Ont. S.C.J.), at p. 323; R. v. Briere, [2004] O.J. No. 5611 (QL) (S.C.J.), at paras. 179-97, and R. v. Marini, [2005] O.J. No. 6197 (QL) (S.C.J.)); a deceased’s gloves found in garbage behind a residential address (R. v. Rodney, [1990] 2 S.C.R. 687); a body placed in a commercial dumpster and later located in a landfill site (R. v. Sherratt (1989), 49 C.C.C. (3d) 237 (Man. C.A.), at p. 245, aff’d [1991] 1 S.C.R. 509, at pp. 513-14); a sweatshirt found in the garbage close to the scenes of a murder and sexual assaults that contained important DNA evidence (R. v. Kinkead, [1999] O.J. No. 1458 (QL) (S.C.J.), at para. 32, aff’d (2003), 67 O.R. (3d) 57 (C.A.)); a tissue left in a garbage pail in a motel room that the accused had checked out of (R. v. Love (1995), 102 C.C.C. (3d) 393 (Alta. C.A.), at p. 409); and boxes found in a garbage pail in a common laundry room adjacent to an accused’s suite that connected the accused to a robbery (R. v. Leaney, [1989] 2 S.C.R. 393, at p. 401).
A. The Issue of Abandonment
[22] In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it” (p. 435).
[23] In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded” (para. 223). (To the same effect see Cory J. for the majority at para. 62, and Major J., concurring in part, at para. 274.)
[24] This may be contrasted with the situation in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, where a locked safe containing confidential documents had been stolen (not discarded) and the accused had never acted in a manner inconsistent with the continued assertion of a privacy interest in the information contained therein. When the police, after recovering the stolen safe, decided to scrutinize the documents inside (and the accused subsequently was charged with tax offences), they infringed the s. 8 reasonableness line.
[25] Abandonment is therefore an issue of fact. 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.
B. The Totality of the Circumstances
[26] It was established in Edwards (para. 45), and affirmed in Tessling (para. 19), that in assessing the reasonableness of a claimed privacy interest, the Court is to look at the “totality of the circumstances”, and this is so whether the claim involves aspects of personal privacy, territorial privacy or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context. Nevertheless, some analytical framework is helpful. The trial judge organized his analysis around the Tessling (para. 32) factors and, for ease of reference, I set them out (adapted to the circumstances) here.
(1) Did the Appellant Have a Reasonable Expectation of Privacy?
[27] On the facts of this case, we need to address:
1. What was the nature or subject matter of the evidence gathered by the police?
2. Did the appellant have a direct interest in the contents?
3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage?
4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:
a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis?
b. whether the informational content of the subject matter was in public view;
c. whether the informational content of the subject matter had been abandoned;
d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
e. whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of this evidence gathering technique was itself objectively unreasonable;
g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
(2) If There Was a Reasonable Expectation of Privacy in This Case, Was It Violated by the Police Conduct?
[28] The second question is only reached if the first question is answered in the affirmative.
C. Did the Appellant Have a Reasonable Expectation of Privacy in This Case?
(1) The Subject Matter of the Alleged “Search”
[29] It is essential at the outset to identify the subject matter of the alleged search: Tessling (at paras. 34 and 58). In R. v. Kang-Brown, 2006 ABCA 199, 210 C.C.C. (3d) 317, the Alberta Court of Appeal accepted the Crown’s argument that the subject matter of the sniffer-dog search was the public airspace surrounding a traveller’s bag. In this Court, the subject matter was found to be the contents within, and specifically the existence of narcotics (2008 SCC 18, [2008] 1 S.C.R. 456). The differing perspectives made a major contribution to a different result.
[30] The Attorneys General characterize the subject matter here as “garbage” but, without more, this oversimplification misses (or assumes away) the point in issue. Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, 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. Many of us may not wish to disclose these things to the public generally or to the police in particular.
[31] The appellant had a direct interest not only in the garbage itself but, in particular, its informational content.
(2) Concealing Illegal Objects
[32] The majority in the Alberta Court of Appeal seems to state, in para. 35, that because the items of interest located by the police revealed involvement in criminal activity they cannot “constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended”. I would have thought, with respect, that the criminal “lifestyle” of the appellant was at the epicentre of what the police wanted to know and what the appellant wished to conceal. The question is not whether the appellant had a lifestyle which society values, but whether and at what point in the disposal process innocent citizens cease to have a reasonable expectation that the contents of their garbage will remain private. The issue ought to be framed in terms of the privacy of the area or thing being searched and the potential impact of the search on the person being searched, not the nature or identity of the concealed items (A.M., at para. 72). In Kang-Brown, we held that a traveller had a privacy interest in his carry-on bag despite the fact that the bag turned out to contain drugs. In A.M., we held that a student did not forfeit his privacy interest in a backpack despite the fact that it was left unattended in a school gymnasium and that its contents included marijuana. In Wong, as stated, the Court held that people who “retire to a hotel room and close the door behind them have a reasonable expectation of privacy” (p. 50), despite engaging in illegal activity once inside. The issue is not whether the appellant had a legitimate privacy interest in the concealment of drug paraphernalia, but whether people generally have a privacy interest in the concealed contents of an opaque and sealed “bag of information”. I believe that they do. The focus is on “the person, place or thing searched and the purpose for which the search is undertaken” (A.M., at para. 72). A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.
[33] In the cases of searches and seizures that come before the courts, the warrantless search has almost always produced useful evidence (otherwise the matter is unlikely to be before the courts), but our concern has to take into account the spectre of random and warrantless searches which produce nothing except embarrassment and perhaps humiliation for the innocent persons who happen to be searched.
[34] A physical search (unlike the sniffer-dog searches in K