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Taking out garbage trashed privacy protections: top court

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OTTAWA - One man's garbage is another man's evidence.

A former national team swimmer kicked his privacy rights to the curb when he put out trash bags containing evidence of a home-based ecstasy lab, says the Supreme Court of Canada.

The high court ruled 7-0 Thursday that Russell Patrick abandoned such legal protections when he put the four bags out for collection alongside a public alleyway in Calgary.

"The police did not breach (Patrick's) right to be free from unreasonable search and seizure," Justice Ian Binnie wrote on behalf of the court.

"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. ... His conduct was incompatible with any reasonable expectation of confidentiality."

The police did not have to step onto Patrick's property to retrieve the bags, Binnie noted. But "they did have to reach through the airspace over his property line."

The case was considered a key test of whether garbage is constitutionally protected, like homes and telephone conversations.

Patrick had argued police violated his rights against unreasonable search and seizure when they rummaged six times through garbage bags in an open receptacle at the back of his property. Officers gathered enough evidence in the dead of night to obtain a warrant, comb through Patrick's home and charge him with trafficking ecstasy.

The top court said neither the garbage search nor the subsequent search of Patrick's home breached his Charter rights, and ruled the evidence admissible.

Once a world record-holder, the former competitive swimmer was convicted of unlawfully producing, possessing and trafficking in a controlled substance.

He was sentenced to four years in prison in 2006 and must now turn himself in, said his lawyer, Michael Bates. Patrick had been out on bail pending Thursday's result and is also appealing his sentence.

A majority in the Alberta appeals court had upheld his conviction. One of the three judges disagreed, however, saying police conduct in the case amounted to a "warrantless search." It then moved on to the high court to clarify that point in law.

Garbage seized by police included ecstasy-making recipes, rubber gloves packaging and a box for a digital scale.

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

"However, until garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition," he stressed.

"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 (Patrick's) intention."

Bates says the judgment on one hand recognizes that so-called garbage often contains "an enormous amount of personal information ... including a lot of DNA on household tissues, highly personal records ... and hidden vices" that must be protected from the prying eyes of the state.

But it then goes on to set out that the mere act of taking out the trash can negate such fundamental safeguards, Bates says.

"What else are you going to do with it?" he wondered. "Do we all have to have incinerators?"

In concurring reasons, Justice Rosalie Abella agreed with the judgment but stressed that personal information that becomes household waste "is entitled to protection from indiscriminate state intrusion."

Police "should have at least a reasonable suspicion that a criminal offence has been or is likely to be committed before conducting a search," she wrote. "In this case, the evidence amply supported such a suspicion."

Frank Addario of the Criminal Lawyers' Association says the ruling offers a practical framework for similar cases in future.

"And the Supreme Court made a very important point: the public's expectation of privacy can't go down as the police become more intrusive - otherwise it would reward them for continually invading privacy. (Binnie) said there's going to be an objective test and it's not going to be degraded by constant police behaviour intended to degrade it."

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