CITATION: R. v. Merritt, 2017 ONSC 81
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Eric Taylor, for the Crown
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
David Berg and Joel Hechter, for Melissa Merritt
Peter Zaduk and Daisy McCabe-Lokos, for Christopher Fattore
Applicants
HEARD: November 29, 2016 at Kitchener
RULING No. 5: Application to Exclude Garbage and Resulting DNA Analysis (Pyramid II)
RESTRICTION ON PUBLICATION Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
F. DAWSON J.
I
[1] On August 29, 2013 Cst. Joseph Calabrese joined the crew of a Region of Peel garbage truck that collected garbage from the residence of the accused at 8568 Mississauga Road. At approximately 11:30 a.m. the truck stopped in front of the Merritt and Fattore residence and Cst. Calabrese and a garbage collector, Alvin Thorpe, placed six opaque garbage bags into the hopper of the garbage truck. The hopper had been cleaned out by cycling the compressing mechanism on the truck shortly before arriving in front of the residence.
[2] The garbage truck then drove to a location where the garbage bags were transferred to a police vehicle. No other garbage had been placed into the hopper in the intervening time.
[3] The garbage was subsequently examined by the police. A new pair of size 12 Athletic Works brand running shoes with hairs and fibres on them was located, as well as a pair of black rubber gloves. Both the shoes and the gloves are of evidential value.
[4] The gloves were submitted for DNA analysis. DNA which almost certainly came from the deceased, Caleb Harrison, was found on the inside of the gloves. DNA which almost certainly came from Christopher Fattore, was found on the outside of the gloves. It is the prosecution theory that the gloves were turned inside out when they were removed after Christopher Fattore murdered Caleb Harrison.
[5] The police did not obtain a warrant to seize or to examine the garbage or to submit the gloves for DNA analysis.
II
[6] The accused apply to exclude the evidence found in the garbage pursuant to ss. 8 and 24(2) of the Charter. Their submissions are twofold. First, they submit that they had a reasonable expectation of privacy in the contents of the garbage on the basis that the factual circumstances surrounding the garbage pick-up demonstrate that they did not abandon the garbage. Second, if they are found to have abandoned the garbage they submit they had not abandoned their privacy interest in their DNA that might be found on any of the items, and in particular on the gloves.
[7] The applicants recognize that in order to succeed they must distinguish the decision of the Supreme Court of Canada in R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579. Mr. Zaduk also acknowledged that the majority judgment in R. v. Marakah, 2016 ONCA 542, [2016] O.J. No. 3738 is "problematic".
[8] The respondent submits that there is nothing in the factual circumstances which distinguishes this case from Patrick, which is a complete answer to the application. It is the Crown's position that if the same analysis that was undertaken in Patrick is undertaken here the same conclusion results: the accused abandoned not only their garbage but also any privacy interest they had in any information revealed by the contents of the garbage. It is submitted this follows not only from Patrick but from Patrick considered in combination with R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, at para. 62.
[9] In addition, the respondent points out that the applicants' alternative argument was expressly rejected in R. v. Usereau, 2010 QCCA 894, 256 C.C.C. (3d) 499.
III
[10] In Patrick Justice Binnie utilized the "totality of the circumstances" test developed in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 and R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, modified to fit the circumstances he was dealing with. I must take the same approach.
[11] As in Patrick, there are a number of features of this case that favour the applicants' position. Their garbage was put out in opaque bags. It was what was on the inside of those bags, which the applicants had not exposed to public view, that the police were interested in. Viewing what was inside the garbage bags would reveal information about what was going on inside the most private of places, the applicants' home. As in Patrick, there is no evidence that any of the information was already in the hands of third parties. See Patrick, at para. 40.
[12] I infer from these and other circumstances that the applicants had a subjective expectation of privacy in their garbage. However, as set out in Patrick at para. 20, the important issue is whether there was abandonment as that would be inconsistent with the essential conclusion that such subjective expectation of privacy was also reasonable. As explained in Patrick, at para. 20:
The concept of abandonment is about whether a presumed subjective privacy interest of the householder in trash put out for collection is one that an independent and informed observer, viewing the matter objectively, would consider reasonable in the totality of the circumstances (Edwards, at para. 45, and Tessling, at para. 19) having regard firstly to the need to balance "societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement" (R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, at p. 293); secondly, whether an accused has conducted himself in a manner that is inconsistent with the reasonable continued assertion of a privacy interest and, thirdly, the long-term consequences for the due protection of privacy interests in our society.
[Emphasis in original]
[13] After referring to R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417 as authority for the proposition that abandonment is fatal to a reasonable expectation of privacy, and to Stillman for the proposition that the purpose of s. 8 of the Charter is not engaged in respect of abandoned items, Binnie J. described the issue of abandonment in succinct terms, at para. 25 of Patrick:
Abandonment is therefore an issue of fact. The question is whether the claimant to s. 8 protection has acted in relation to the subject matter of his privacy claim in such a manner as to lead a reasonable and independent observer to conclude that his continued assertion of a privacy interest is unreasonable in the totality of the circumstances.
[14] In the case at bar the garbage bags were placed at or near the gravel shoulder of the roadway in a semi-rural area. The driver of the garbage truck described it as being on municipal property. The garbage does not appear to have been inside the property line, as was the case in Patrick.
[15] The police did a drive-by of the property at 7:51 a.m. The garbage was not yet out. The evidence indicates, however, that garbage collection from the west side of Mississauga Road customarily took place later, around the time when the garbage was actually picked up.
[16] On behalf of the applicants, Mr. Zaduk asks me to infer that the garbage had only been out for about one-half hour before it was collected and submits this is some evidence that the applicants had not abandoned their garbage in the same manner the appellant had in Patrick. In Patrick the garbage was left out all night in uncovered cans in a trash stand just inside the lot line adjacent to a public alleyway behind the home.
[17] Mr. Zaduk also relies on the fact that there is evidence that Mr. Fattore was outside with his children watching as the garbage was collected. Mr. Zaduk submits this evidence shows that Mr. Fattore intended to maintain control over the garbage until it was destroyed by being intermingled with other garbage in the truck to the point of "anonymity".
[18] In my respectful view these submissions do not assist the applicants. First of all, even if the garbage was only out for one-half hour before collection the garbage was nonetheless put out by the regular collection time and the garbage bags had been placed in a location which demonstrated an intent to relinquish control over the contents of the bags to the garbage collectors. As Justice Binnie pointed out in Patrick, the nature of the relationship between a resident and their garbage collector is not one in which there is any reasonable expectation of confidentiality.
[19] In addition, once the garbage was turned over to the collectors the applicants had no control over whether it would be mixed together with other garbage to the point where it would become unidentifiable. Once their control of the garbage was relinquished their reasonable, if not subjective, expectation of privacy ended: Marakah, at paras. 78, 85.
[20] I also note that the driver of the garbage truck testified that Mr. Fattore and the children always came out to watch the garbage pick-up. As one of the lawyers commented when this evidence came out during his cross-examination of the driver at the preliminary inquiry, he remembered that his own children liked to watch the garbage being picked-up.
[21] I am not prepared to infer in the circumstances that Mr. Fattore was standing by for the purpose of exercising control over the garbage. Even if he was trying to ensure that it went into the garbage truck, that would not leave him with a reasonable expectation of privacy thereafter. As expressed in Patrick, at para. 55: "He had done everything required of him to commit his rubbish to the municipal collection system". Consequently, I find there was abandonment of the contents of the garbage.
IV
[22] Turning to the applicants' submission that even if they had abandoned the garbage they had not abandoned their expectation of privacy in the information in their DNA, I note that in Patrick, Binnie J. was clear that abandonment of what was put out in the garbage also constituted abandonment of "whatever private information was embedded therein" (para. 2). I also observe that as the issues were framed at para. 12 of Patrick, the distinction between the garbage and the information the garbage contained was central to the appeal. At para. 13 Justice Binnie recognized that it was possible that a person may have no further interest in the garbage but "a very strong interest in keeping private the information embedded in its contents." Nonetheless, he found that abandonment of the garbage terminated all such interests.
[23] Given these features of Patrick I can only conclude that in the circumstances of this very similar case abandonment of the garbage effectively constituted abandonment of all private information embedded in the garbage.
[24] Mr. Zaduk submits that Patrick should be distinguished in relation to his alternative argument because it did not deal with DNA. He submits that DNA analysis can reveal the most intimate details about a person and submits that DNA analysis should be treated differently. He supports his submission by analogy to cases such as R. v. Vu, 2012 SCC 40, [2012] 2 S.C.R. 411 and R. v. Fearon 2014 SCC 77, [2014] 3 S.C.R. 621. Mr. Zaduk submits that the police might be permitted to look for evidence in the garbage but submits they should be required to get a warrant before undertaking DNA analysis.
[25] While there is a certain superficial appeal to this submission there are two related problems with it in my respectful view. The first is that in both Vu and Fearon there was no issue of abandonment. In both cases the court found that there was a reasonable expectation of privacy in the data stored on computers or cell phones.
[26] Second, DNA analysis was a central feature of the Stillman case. The police took a tissue discarded by the accused while in custody and subjected it to DNA analysis. Writing for the majority, Cory J. held that there had been no abandonment in that case because the accused was in custody and was unable to prevent the police from gaining access to samples of his bodily substances. In reaching that conclusion Cory J. contrasted the circumstances of someone who is in custody, in which case he held the police would require an accused's consent to seize a bodily sample, with the circumstances of someone who is out of custody. At para. 62 he made the following statement:
Thus, where an accused who is not in custody discards a kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent.
I find this statement to be directly on point and at odds with the applicants' submission.
[27] I also note that in Usereau the appellant submitted that the police should have obtained a warrant before submitting a glass and a straw which he had used in a restaurant to DNA analysis. The appellant submitted that everyone "has a permanent expectation of privacy on the informational content of his or her DNA". At para. 35 of its judgment the Quebec Court of Appeal characterized this as a submission "that the majority reasoning in Stillman should not be followed". The court rejected the argument, relying on Patrick.
[28] I also observe that in the case I am dealing with no extraordinary steps were taken to protect privacy interests in the discarded items. Without suggesting that it would necessarily affect the result, I note that this situation is not akin to one where someone has shredded documents, for example, before putting the resulting scraps out in the garbage. Such circumstances were referred to in R. v. Marini, [2005] O.J. No. 6197 (S.C.J.), at para. 30.
V
[29] A consideration of the totality of the circumstances leads me to the conclusion that the applicants abandoned the garbage seized by the police on August 29, 2013. That abandonment is inconsistent with the applicants having any reasonable expectation of privacy in any information embedded in the garbage.
[30] For this reason there was no s. 8 violation involved in seizing the garbage or in submitting any of its contents for further analysis.
F. Dawson J.
Released: January 5, 2017
CITATION: R. v. Merritt, 2017 ONSC 81
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 5: Application to Exclude Garbage and Resulting DNA Analysis
(Pyramid II)
F. Dawson J.
Released: January 5, 2017