THE STATE NOW HAS A PLACE IN THE GARBAGE CANS OF THE NATION

Privacy Rights End When Trash Hits The Curb, Top Court Says

The Supreme Court of Canada said yesterday that governments have the
right to sift through personal garbage once it reaches your property
line, concluding a classic contest over property rights.

In a 7-0 ruling, the court said the rubbish is fair game for police,
tax investigators or any other government scrutineer.

The decision means that Russell Patrick, a former record-holding
swimmer on the Canadian swim team, will spend four years in prison
for drug offences that came to light after police snatched garbage
bags from behind his Calgary home on Dec. 17, 2003.

The court conceded that garbage contains a broad spectrum of highly
private material, ranging from an individual's DNA to banking
documents and intimate communications, which individuals might well
want to keep confidential. But he noted that garbage is discarded for
a reason - because it is no longer wanted - which greatly reduces any
claim to privacy.

"Patrick did everything required to rid himself of the items taken as
evidence," Mr. Justice Ian Binnie said, writing on behalf of Chief
Justice Beverley McLachlin, Mr. Justice Louis LeBel, Mr. Justice
Morris Fish, Madam Justice Louise Charron and Mr. Justice Marshall
Rothstein. "His conduct was incompatible with any reasonable
expectation of confidentiality."

Madam Justice Rosalie Abella wrote a concurring judgment, stating
that police should have a reasonable suspicion that an offence has
been committed or will be committed before they seize garbage.

Officers, reaching over Mr. Patrick's property line, made off with
several bags of refuse, eliciting enough evidence of a potential
ecstasy-manufacturing operation to obtain a search warrant for his house.

"When Patrick'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," Judge Binnie concluded.

"I do not think constitutional protection should turn on whether the
bags were placed a few inches inside the property line or a few
inches outside it," he added. "The point is that the garbage was at
the property line, accessible to passersby."

Jonathan Lisus, a lawyer for the Canadian Civil Liberties
Association, said the ruling could potentially apply to computer text
messages, which the courts may interpret as a form of garbage. "The
focus is on the information, not the form of it," Mr. Lisus said.

However, he said that deleted e-mail "is unlikely to be considered
garbage because it resides on your server, which you control."

Judge Binnie said that to suggest that the Charter of Rights
"protects an individual's 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."

Michael Bates, a lawyer for Mr. Patrick, said the ruling is both
confusing and troubling. "I think that it's going to be difficult for
anybody to maintain their privacy interest while at the same time
using the municipal garbage system," he said. "Because if you're
using the municipal system, at some point, that garbage is going to
be in the hands of the garbage collector."

Citizens who do not want to run the risk of having government
investigators root through their garbage may want to consider
purchasing their own landfill sites or home incineration systems, he said.

"This case clearly says that any privacy interest you had is gone,"
Mr. Bates said. "The police, at the very least, will always be able
to simply walk along with the garbage collector and simply have that
person hand them the bag. I just don't see any other way a person can
use the municipal system and at the same time maintain that privacy interest."

Mr. Bates did, however, find something to cheer about in Judge
Abella's concurring judgment.

But Judge Binnie said that the degree of privacy accorded to garbage
is all about context. For example, he said that garbage placed on a
porch, in a garage or within the immediate vicinity of a dwelling
cannot be considered to have been "unequivocally abandoned."

"In this case, Patrick'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," he said.

"The bags were unprotected and within easy reach of anyone walking by
in the public alley way, 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."