Patrick: Protecting Canadians' Privacy Interest in Garbage; 'A Step Too Far' for the Supreme Court
Document Type
Response or Comment
Publication Date
2009
Keywords
R v Patrick, Supreme Court of Canada, Privacy Protection, Abandonment, Garbage, Household Waste, Reasonable Expectation of Privacy, Search and Seizure
Abstract
In Patrick, the Supreme Court of Canada had an opportunity to provide additional protections for Canadians against the prying eyes of the state. Instead of making a conscientious choice among several limitative options, the Court has preferred an outcome which will embolden the investigative ardour of the police. While emphasizing their concern "about the long-term consequences of government action for the protection of privacy," the case has actually reduced its residuum. This is all the more troubling as Binnie J., writing for six justices, and Abella J., concurring in the result, both acknowledged that, in the main, "the circumstances in this case favour the appellant. " In the former instance, the intrusion is justified based upon "the key issue of abandonment, while the latter judgment upholds the search and seizure based upon "ample evidence on which to base a reasonable suspicion." Neither of these underpinnings is thoroughly analyzed despite the need to address such issues in the first decision by the Supreme Court to canvas the justifiability of state agents "rummaging through household waste" in a country where "It]he protection of privacy is a central feature. "
In this comment, the modern social and juridical nature of garbage will first be explored, arguing that the nation disposes of its trash in a highly regulated environment where the apparently free rein given to police by Patrick seems contradictory. The bases for recognizing a reasonable expectation of privacy in what the decision portrays as mere cast-offs will be presented. The majority's lynchpin notion of abandonment in Patrick will be scrutinized, with the contention being that the Court ignored factors which downplay its suitability in this context. The unwillingness of the Court to impose restrictions on police encroachments on citizens' privacy interests in garbage will be lamented as the long-term effect of Patrick. The decision marks a further stage in the creation of what seems to be emerging as "the new dimension of search and seizure” in Canada, which many will rightfully deplore as corrosive of our basic values.
Recommended Citation
H Archibald Kaiser, "Patrick: Protecting Canadians' Privacy Interest in Garbage; 'A Step Too Far' for the Supreme Court" (2009) 64 CR (6th) 30.
