DOES THE STATE HAVE ANY BUSINESS IN THE GARBAGE BAGS OF CANADIANS?

The Supreme Court Says Yes

Instead of garbage, it might be more accurate to call them "bags of
information," the Supreme Court of Canada said yesterday,
acknowledging that residential trash reveals an enormous amount about
"what is going on in our homes."

It can include personal records such as love letters and overdue bills
or "hidden vices" such as sexual paraphernalia and syringes, the court
said. Not to mention tissues with DNA.

The real question, said Justice Ian Binnie, is when does household
waste stop being private.

Writing for a six-judge majority in a case that pitted law enforcement
interests against privacy rights, Binnie said police did nothing wrong
in digging through garbage left for trash collectors at the edge of a
property.

The case involved Calgary swim star Russell Stephen Patrick and the
actions of drug squad officers who reached into his yard on six
separate occasions to remove bags that contained the makings of a
home-based ecstasy lab.

Patrick, a former member of Canada's national swim team, had placed
the sealed, opaque bags for collection in an open receptacle behind
his house.

Convicted in 2003 of producing and trafficking in a controlled
substance, he argued that taking his trash amounted to an unreasonable
search and seizure.

In its decision yesterday, the court agreed with Jonathan Lisus and
Alexi Wood, lawyers for the Canadian Civil Liberties Association, that
curbside waste paints a full picture of a householder's lifestyle.

Until garbage is placed "at or within the reach of a lot line,"
residents maintain some control over their trash, which can't
automatically be regarded as abandoned, particularly if it is on a
porch, in a garage or within the "immediate vicinity" of a home, the
majority said.

But like an apartment dweller throwing trash down a chute or a rural
resident dropping it off at a dump, once Patrick set bags at the edge
of his yard for collection, he had no reasonable expectation of
privacy, Binnie concluded.

"The bags were unprotected and within easy reach of anyone walking by
in a public alleyway, including street people, bottle pickers, urban
foragers, nosey neighbours and mischievous children, not to mention
dogs and assorted wildlife, as well as garbage collectors and the
police," he wrote yesterday.

Not all members of the court were on board. Justice Rosalie Abella
took issue with the notion that householders, after setting trash out
for collection, have abandoned any expectation the contents will stay
private.

Instead of treating it as ripe for picking, Abella said police should
be required to have a "reasonable suspicion" a crime has been
committed before rummaging through what remains within a homeowner's
"ultimate zone of privacy."

"What we inelegantly call 'garbage' may contain the most intensely
personal and private information about ourselves," she said.

"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."

In Patrick's case, police had ample reason to suspect him of a crime,
said Abella, who sided with the majority in dismissing his appeal.

Lisus said there are, from a civil liberties perspective, good things
about the judgment.

"The big issue for us was dispensing with the notion that a bag of
household trash is just 'garbage,' as asserted by the Crown," Lisus
said.

Now, under the ruling, the right of police to search garbage depends
on the facts of each case, he said.

When Patrick's case reached the Alberta Court of Appeal in 2007, one
judge suggested garbage is not private until it is mixed with other
waste at a landfill site and becomes anonymous.

But Binnie said the idea it remains private "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."