Case information

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Criminal law - Whether the trial judge erred in failing to consider, and failing to find, the Appellant had a reasonable expectation of territorial privacy with respect to his dwelling house, its perimeter and the garbage bags stored thereon - Whether the trial judge erred in failing to find the Appellant had a reasonable expectation of informational privacy with respect to the garbage bags and the information stored therein.

Police investigators suspected that Appellant, Russell Stephen Patrick, was operating an ecstasy lab in his home located in Southeast Calgary. On six separate occasions, police officers conducted a search of Patrick’s garbage, which involved seizing garbage bags located inside garbage cans that were placed in the receptacle at the back of Patrick’s property. The bags were readily accessible to the public, since the garbage cans had no lids and the receptacle did not have any doors to cover the opening into the alleyway. Nonetheless, the officers did have to reach over the property line in order to retrieve the garbage bags. The police identified items within at least four of the bags that were indicative of an ecstasy lab operation. These items, along with other information garnered from the police investigation were used to obtain a search warrant for Patrick’s residence. The search warrant was executed on December 23, 2003. The police officer in possession of the warrant remained outside until he was advised that the home was secure and that it was safe to enter and did not show the warrant to Patrick at any time.

The trial consisted of a voir dire to determine the admissibility of the evidence obtained from the police search. The trial judge held that Patrick did not have a reasonable expectation of privacy over the items seized from his garbage, and that the search of Patrick’s home was lawful. The Appellant was convicted of unlawfully producing, possessing and trafficking in a controlled substance (ecstasy) contrary to ss.7, 5(2), and 5(1) of the Controlled Drugs and Substances Act.

On appeal, the majority of the Court of Appeal dismissed the appeal. Conrad J.A. dissenting found that the trial judge erred when he did not consider whether the Appellant had a reasonable expectation of territorial privacy and when he found the Appellant did not have a reasonable expectation of privacy with respect to his garbage and the information about him that it contained. She was satisfied the Appellant had a reasonable expectation of privacy with respect to his home and yard, and that his rights under section 8 of the Charter were breached when the police crossed over onto his property and seized his garbage. The evidence obtained, therefore, could not be used to support the warrant to search the house, nor could it be used to support his convictions.