First Reference Talks

Who’s looking at your garbage, and why should you care?

Author: Adam Gorley

Posted on Thursday, March 11th, 2010 at 17:18

You know what happens when you dump your garbage in the bin, right? The garbage collectors pick it up and take it away, and you don’t worry about it any more. But should you worry about it? A 2009 Supreme Court of Canada decision suggests you might want to.

In R. v. Patrick, the Court decided that once someone deposits waste outside for collection, police or other government officials, and perhaps other private parties, might have the right to snag the trash for evidence before the garbage man stops by.

Maybe this sounds meaningless to you, and maybe it is meaningless to most, but the point is that in the wake of this decision, organizations should reconsider their waste disposal practices to ensure that they are not tossing out valuable—or incriminating—information that might be used against them.

In Patrick, Calgary police examined the garbage of a man they suspected of producing ecstasy in his home. Eventually, they collected enough evidence from the garbage to get a search warrant, which led them to the man’s home ecstasy operations and criminal charges.

The man appealed the police searches of his garbage, citing section 8 of the Canadian Charter of Rights and Freedoms, which guarantees freedom from unreasonable search or seizure. But every court, right to the top, rejected the argument, and found the searches reasonable, indicating that the man had a “diminished expectation of privacy” with respect to the garbage he left out for collection. Calgary even has a by-law—as presumably most municipalities do—that prohibits “scaveng[ing] waste from a commercial bin, waste container or plastic garbage bag“, and the police officers had to trespass onto the man’s property to get at the garbage.

If that sounds frightening, even to you, our law-abiding reader, it should be. But the Supreme Court offered two caveats to the decision, which should allow you to breathe easier:

1. In this case, “there was no manifestation of a continuing assertion of privacy or control” over the garbage. In other words, the man made no attempt to restrict access to the garbage once he put it out, and thus he implicitly reduced his expectation of privacy.
2. The Court stated, “Before the state can rummage through the personal information from [waste], there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.

While still vague, these clarifications allow individuals and organizations to protect themselves from garbage searches. For example, organizations can secure their waste, or keep it indoors until collection day; one might also argue that video surveillance of waste bins amounts to a “continuing assertion of privacy or control” over the trash. I can’t say how to avoid raising reasonable suspicion, but you can’t lose by maintaining good governance and operating policies and procedures (and avoiding committing crimes).

The key is: a responsible organization might not be able to simply toss its waste and forget about it any more. You might not think your organization’s garbage contains any useful or valuable information in it—it is garbage after all—and you might think that your organization is above suspicion, but do you want to take that chance?

Does your organization have a waste disposal policy? Will you be updating it to take into account R. V. Patrick?

Adam Gorley
First Reference, ICL Editor

Tags: canadian charter of rights and freedoms, garbage search, policies and procedures, privacy, R. v. Patrick, supreme court, waste search

This entry was posted on Thursday, March 11th, 2010 at 17:18 and is filed under Internal Controls, IT, Privacy and Security. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.