The law of the curb

Garbage is, well, junk. But to some snoops it's pure gold.

Sometimes a man's trash is also his treasure. So it was for Mark Hill, who was thoroughly vexed when he learned that private investigators hired by Air Canada seized his garbage and recycling bins, and reconstructed the shredded documents contained within. Hill filed a $5-million countersuit against Air Canada for invasion of privacy last summer. And because he claims the garbage was placed inside his property line, he also alleges that the intruders trespassed on his land. Hill's lawsuit calls Air Canada's conduct “offensive and intolerable”–but the airline is unapologetic. IPSA International Inc., Air Canada's private investigation firm, denies trespassing.

The practice of sifting through trash for information is variously known as “trash trawling,” “Dumpster diving” and “waste archeology.” One American judge opined that “a single bag of trash testifies eloquently to the eating, reading and recreational habits of the person who produced it.” Waste can reveal someone's general health, personal hygiene, romantic interests, sexual practices, financial and professional status, political beliefs and a host of other private details, he observed. Such information could prove highly damaging in the hands of PIs, police officers, identity thieves, business competitors, potential litigants and others.

Is trash trawling legal? Hill's lawyer, Patrick Peacock of Peacock Linder & Halt LLP in Calgary, says, “The law of garbage doesn't seem to be very well developed,” and predicts that the Air Canada-WestJet lawsuits will raise “lots of issues about the status of garbage.”

Jim Phillips, a law professor at the University of Toronto who specializes in property law, says that stealing garbage on someone's property can qualify as both trespassing and theft. “Only the police can exempt themselves from this, and only if they have a search warrant,” he adds. “If it was off [Hill's] property, it's still theft–unless he can be considered to have abandoned his property rights in it. Abandonment is not easy to argue.”

Certain courts, however, have ruled the opposite. In 1988, the Supreme Court of the United States ruled that the U.S. Constitution's Fourth Amendment (which outlines personal rights against unreasonable searches and seizures) does not prohibit the taking of garbage left outside a home. That same reality faced John Krist, a marijuana grower in Pitt Meadows, B.C. Krist was arrested shortly after police found marijuana plants and growing paraphernalia in his garbage. Krist argued that the seizure violated Section 8 of Canada's Charter of Rights and Freedoms, which is similar to the Fourth Amendment. However, successive courts ruled that Krist's trash was fair game. “Putting material in the garbage signifies that the material is no longer something of value or importance to the person disposing of it,” wrote Justice Anne Rowles of the Court of Appeal for British Columbia in a 1995 decision. “When trash is abandoned, there is no longer a reasonable expectation of privacy in respect to it.”