Turning Garbage into Gold: Physical Property vs. Abandoned Information - Shelly Neal

In the year 2021, personal data collection and privacy infringements seem to be the norm. Individual information is relinquished with the click of a button. Courts are now filled with novel cases exploring the limitations of privacy rights online. However, in the physical world, these rights appear quite established.

The leading Canadian case on privacy protections, Hunter v. Southam,[1]was a landmark decision by the Supreme Court addressing the parameters of Section 8 of the Charter of Rights and Freedoms.[2] Section 8 states that “[e]veryone has the right to be secure against unreasonable search or seizure.”[3] The question in Hunter was: what is the standard of evidence needed for a warrant to search a physical space, and how much privacy protection was extended to an average citizen by the Constitution?[4] In the decision, Chief Justice Dickson determined that reasonable and probable grounds was the minimum standard needed by the police to execute a search warrant.[5] The protections of Section 8 allow for a reasonable assumption of privacy and must be balanced against law enforcement’s interests,[6] but how is this “reasonable expectation” determined?

The Threshold Test was established and outlined in R. v. Tessling[7] and R. v. Edwards[8] to determine where privacy protections cease. The two major factors to establish when conducting this test are, “(1) the existence of a subjective expectation of privacy; and (2) the objective reasonableness of the expectation.”[9] In 2008, the Supreme Court created a modified version of this test in R. v. Kang-Brown[10] to outline the expectations of police when entering physical spaces. The test also determines our personal privacy protections in regard to personal belongings. However, the test does have an interesting facet when discussing these belongings and when they cease to have applicable extended privacy rights, noting, “(c) where the subject matter has been abandoned.”[11] This leads to the topic being explored in this paper: when is personal property considered abandoned? More specifically, when does garbage cease to be considered property and instead become information accessible to the police?

Trash: Personal property or abandoned information?

The most important case exploring this issue is R. v. Patrick.[12]In Patrick, the defendant placed his garbage in transparent plastic bags outside of his home, within the fenced limits of his property. Inside the household trash was evidence of a drug manufacturing operation. The police, in hopes of securing a warrant for the home, reached over the fence and removed the garbage from the yard.[13] The issue of when the garbage had become accessible to police was centered around the garbage’s abandonment in the backyard. The judge stated:

As the garbage had been left out, it was considered no longer the property of Patrick, and his privacy protections ceased to exist. The fact that the police officer trespassing on private property was not found to be of issue enforces the idea that Section 8 protections are for people and not things.

This idea continues to persist throughout the case law. In the 1992 case R. v. Kennedy,[15] the defendant argued against the admissibility of evidence located through searching household garbage without a warrant. Rather than arguing a Section 8 violation via abandonment, the defendant instead advanced an argument based on a reasonable expectation of privacy in his garbage.[16] The court did not agree with this stance on either a subjective or objective basis, stating, “There is, therefore, no evidence of his subjective expectation of privacy in his own garbage. In applying secondly, the objectively reasonable analysis to the expectation of privacy, I cannot accept as being objectively reasonable, that Canadian society expects there would be a right to privacy in one's garbage.”[17] A clear message is put forward in this decision: expecting personal privacy rights to extend to trash is not a reasonable expectation, and trash has no owner once abandoned outside.

In R. v. Krist,[18] the British Columbia Court of Appeal reinforced that:

Once property is discarded in the trash, privacy rights no longer apply. The object has been abandoned. The limits surrounding the abandonment of trash in criminal courts are quite clear. However, this is not followed in private law, as abandonment is not as easily defined.

The difference of property rights in civil law

Alternatively, in civil law, the concept of abandonment has been debated in regard to personal property. The Ontario case Wicks Estate v. Harnett[20] examined abandonment and ownership of trash. The defendant, upon moving into a new house, discovered bags of garbage abandoned by the home’s previous owner in the garage. One of the bags contained maggots, while the contents of another were described as kitchen waste; among the waste included drawings by the famous cartoonist Ben Wicks. The defendant claims not to have known they were drawn by Ben Wicks, but brought them out of the garbage and kept them.[21] Years later, the previous homeowner, Wick’s son, became aware of the existence of these drawings and, as Ben Wicks had died, took the defendant to court to have them returned to his estate. According to the courts, “Abandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property.”[22] Despite this similar explanation of when an object is to be considered abandoned, in this case, the property was found to never have been abandoned at all.

The court found the intention of the plaintiff to be the essential factor in determining when property can be considered abandoned, stating, “Intention should be inferred because people generally finding material in the garbage would determine that it had been abandoned. This misses the point. It is the intention of Ben Wicks which lies at the core of this determination. It is his actions and the actions of the other members of his family from which that intention is to be inferred.”[23] As his family attempted to have the drawings returned, their claim to the property was stronger than the defendant homeowner who had the drawings in his possession for years. Intent and conduct seem to be the major aspects of determining whether garbage has been abandoned or not in civil cases. How, then, does this fit alongside criminal precedent?

The importance of intent

The difference between civil and criminal law in the Wicks Estate case regarding the concept of abandonment is oppositional and difficult to reconcile. Although not a binding decision, abandoning garbage at a home no longer owned by the plaintiff did not break their claim due to intention. This “intent” concept makes it hard not to question the rationale of privacy protections in criminal courts. Would the intent of a suspected criminal in disposing his trash still be to not have it searched by law enforcement?

What is certain is that our privacy rights are limited to the discretion of law enforcement. Although the importance of this organization is obvious, it seems unreasonable that personal property ceases to have privacy protections simply because it was placed outside; even worse, while still within property lines. Would these protections not still be applicable if the trash were searched by an identity thief? Would it not be reasonable to expect privacy protections from a criminal with the intent of stealing your identity? In the text Privacy in Peril, authors Richard Jochelson and David Ireland muse that criminal proceedings “demonstrate the court’s willingness to construct material property as a bag of information when the informational component of the search begins to take primacy in the totality-of-circumstances calculi.”[24] The transformation of physical property to abandoned information seems to occur at the blink of an eye; Intention for privacy, a non-factor.

Ultimately, the difference in criminal and civil proceedings as to what is considered “abandoned” in relation to garbage should be a cause for pause. Personal privacy rights are slowly being handed over to police powers. The real possibility of a continued relinquishing of individual rights to law enforcement is a terrifying thought. The issue of privacy in relation to garbage has already been determined through criminal case law, though clearly not for the benefit of your average citizen.

 [1] Hunter v Southam, [1984] 2 SCR 145.
 [2] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 8.
 [3] Ibid.
 [4] Hunter, supra note 1 at 154 para 2.
 [5] Richard Jochelson & David Ireland, Privacy in Peril (Vancouver: UBC Press, 2019) at 17.
 [6] Hunter, supra note 1 at 159 para 3.
 [7] R v Tessling, [2004] SCC 67.
 [8] R v Edwards, [1996] 1 SCR 128.
 [9] Tessling, supra note 7 at 443 para 19.
 [10] R v Kang-Brown, [2008] 1 SCR 456.
 [11] Ibid at 525 para 140 section (II)(c).
 [12] R v Patrick, [2009] SCC 17.
 [13] Ibid at 579 para 1.
 [14] Ibid at 607 para 55.
 [15] R v Kennedy, 1992 CarswellOnt 2544.
 [16] Ibid at 3.
 [17] Ibid at 12.
 [18] R v Krist, 1995 CarswellBC 650.
 [19] Ibid at 14 para 28.
 [20] Wicks Estate v Harnett, (2007) 48 CCLT (3d) 155.
 [21] Ibid at 3 para 12.
 [22] Simpson v Gowers (1981), 32 OR (2d) 385 (Ont. C.A.); quoting from R. A. Brown, The Law of Property, 2nd ed (1955) at 9.
 [23] Wicks, supra note 20 at 6 para 31.
 [24] Jochelson & Ireland, supra note 5 at 62.