Court decisions relating to privacy matters have been in the news quite a bit recently. On April 9th, the Supreme Court of Canada ruled that there is no reasonable expectation of privacy in garbage that has been left close to the edge of one’s property line. The case, R. v. Patrick, was unanimous at 7-0, and it affirmed both the Alberta trial and appellate rulings. It involved Russell Stephen Patrick, who was charged with operating an ecstasy lab in his residence. The police had suspected his illegal activities and had reached past the property perimeter multiple times without a warrant to find evidence in garbage bags that were placed in a receptacle in his backyard. This evidence was used to obtain a warrant to search the house, where the suspicions were confirmed. The main issue was whether or not the police conducted an unreasonable search, contrary to section 8 of the Charter, which would allow the possibility of the evidence being excluded as per section 24(2). This hinged on the determination of whether there existed a reasonable expectation of privacy in the garbage bags at the point when the police went through them.
The Court did find that garbage can disclose details of the lifestyle and personal choices of an individual, which is determinative of an existing informational privacy interest. Garbage can contain items related to health, sexual practices, and political affiliations, which can all be revealing of intimate details that one should have the right to keep private. But after the bags were placed by the edge of the yard for pick-up, this constituted abandonment so that the privacy interest was extinguished. Though Patrick also argued for a breach of territorial privacy due to fact that the police reached into his property, the Court deemed this intrusion to be “relatively peripheral”, so that the issue should be framed within the context of informational privacy.
As part of its reasoning for deciding that the garbage had no expected privacy interest, the Court considered whether Patrick’s subjective expectations of privacy were objectively reasonable. It stated that “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”. The Court may have taken into account the susceptibility of the information in the bags as too great a factor in the determination of the garbage’s privacy interest. This line of reasoning may be especially troubling if applied directly to the electronic realm, where I think it is safe to assume that many users believe that their online activities should be considered private despite the various ways and ease that this information can be accessed by others.
Sometimes individuals have no real choice regarding their actions and may be forced to do something that is not truly indicative of a particular intent. The Canadian Civil Liberties Association (CCLA), an intervener in the case, argued that Patrick had not “abandoned the information inherent in his household waste … [because] the production and regulated disposal of household waste is the inevitable consequence of life in modern society”. In a similar fashion, electronic information that is collected by third parties (e.g. cached websites, search engine history) can sometimes be impossible to eliminate in the modern world without major inconveniences to users who want or need to accomplish various functions on an electronic platform. A representative of CCLA said that the Patrick decision could even apply to computer text messages.
By arguably expanding the scope of what does not have a reasonable expectation of informational privacy, it can be said that this decision has essentially placed a greater burden on citizens to protect information that they may have traditionally considered private. As many of the comments in this article demonstrate, it is becoming more commonplace for households to have shredders for personal documents. Another IPilogue post comments on an opinion piece from wired.com here, which deals with lowered expectations of privacy and how decisions like these actually affect the social norms that they rely on. As mentioned, there exist methods that allow others to gain access to an individual’s online activities and information, so it will likely become more expected that one takes greater precautions regarding this information in the same way that it is now standard to obtain anti-virus software on a PC. The problem with technology, however, is that its constant evolution may amplify the toll of this greater burden of expected personal protection. As a practical matter, it may make sense for the state to take a more liberal stance in protecting traditional privacy interests with respect to electronic mediums.
In reality, however, the recent trend in Ontario seems to be going in the other direction. The cases of Warman v. Fournier, R. v. Wilson, and R. v. Vasic all seem to have the ultimate effect of raising the bar for classifying information as having a reasonable expectation of privacy. Though this interpretation allows the police to more effectively catch suspects and ultimately bring about justice in those specific situations, this same end can also be reached by modifying the scope of interpretation of section 24(2) of the Charter instead. Some additional articles related to this trend can be found here, here, and here.