(delivered the judgment in which McLachlin C.J., and LeBel, Fish, Abella, Charron and Rothstein JJ joined)
The appellant was convicted of unlawfully producing, possessing and trafficking in a controlled substance (Ecstasy) based in part on evidence gathered by the police from the appellant’s garbage. The items of interest to the police, including drug- making paraphernalia, provided the primary basis for a search warrant of his dwelling. The appellant contends that the police inspection of his garbage amounted to a search and seizure and was unreasonable within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms. Further, he says the evidence taken from the garbage, and other evidence obtained under the subsequent search warrant, should be excluded on the basis that its admission would bring the administration of justice into disrepute.
In my view, the appellant’s initial privacy interest in the evidence was abandoned when he placed the bags for collection as garbage from a stand indented in the back fence of his Calgary home adjacent to a public alleyway, to which any passing member of the public had ready access. The police had no greater access in this regard than the public, but their access was no less. At that point, the appellant had done everything required to rid himself of the contents including whatever private information was embedded therein, and this conduct, I believe, was inconsistent with the continued assertion of a constitutionally protected privacy interest. I would therefore dismiss the appeal.
Police investigators suspected that the appellant was operating an ecstasy lab in his home located in southeast Calgary. On several occasions, they grabbed bags located inside garbage cans placed on a stand (without lids) just inside his property line. The fence was located approximately 17 metres to the rear of his house, parallel to and contiguous to a back alleyway. It was constructed so that the garbage was visible from the alley but shielded from the sight of persons in the appellant’s house or back garden. The stand did not have any doors. Nonetheless, the officers did have to reach through the airspace over the property line in order to retrieve the bags. The items seized by the police included torn‑up papers containing chemical recipes and instructions, gloves, used duct tape, paper towel sheets, packaging for rubber gloves, packaging for a digital scale, a product card for a vacuum pump, a balloon, a receipt for muriatic acid and an empty clear plastic bag with residue inside. Some of the items bore a detectable odour of sassafras oil and some were found to be contaminated with ecstasy.
The trial, which proceeded on the basis of an agreed Statement of Facts, consisted essentially of a voir dire to determine the admissibility of the evidence obtained from the garbage. The appellant contended that without the garbage the police would not have been able to obtain the warrant to search his home. The result, he says, is that the evidence was gathered in breach of his s. 8 rights. Given the seriousness of the breach, the admission of such evidence, he says, would bring the administration of justice into disrepute and it ought to have been excluded. As there then remained insufficient evidence upon which a properly instructed jury could convict, the appellant argued that he should be acquitted of all charges.
The trial judge held that the appellant did not have a reasonable expectation of privacy in the items seized from his garbage, and that the search warrant issued subsequently was therefore valid and the search of the appellant’s home was lawful. The evidence was thus admitted. The appellant was convicted of offences in ss. 7, 5(2) and 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The convictions were affirmed by the Alberta Court of Appeal, Conrad J.A. dissenting.
II. JUDICIAL HISTORY
A. Provincial Court of Alberta, 2005 ABPC 242, 388 A.R. 203
Wilkins Prov. Ct. J. identified the critical issue in this case as whether the accused had a reasonable expectation of privacy in the contents of the garbage bags. Although the accused did testify during the voir dire, he provided no direct evidence of a subjective expectation of privacy. Such an expectation could be presumed in the circumstances: R v Tessling, 2004 SCC 67,  3 S.C.R. 432. However, “at some point he has clearly waived that expectation by placing the garbage where he did and abandoning it” (para. 39). Even though the garbage was on private property, “location is not the litmus test for determining the expectation of privacy” (para. 36). Otherwise this could lead to absurd exercises in line-drawing such as the situation of a curbside pile of garbage bags, some of which fall outside the property line while others fall within it, and still others might straddle the line in various proportions (para. 37). His point, as I understand it, is that it would make no sense to give different constitutional treatment to different bags in the same pile based on such legal formalism.
As a result, in his view, the accused had not proven on a balance of probabilities that there was a search and seizure in violation of s. 8 of the Charter. The evidence was therefore admitted and the accused was convicted on all three counts.
B. Alberta Court of Appeal, 2007 ABCA 308, 417 A.R. 276
(1) Ritter J.A. for the Majority
Ritter J.A. held that the items found by the police and afterwards used to obtain the search warrant “reveal[ed] that Patrick was involved in criminal activity and little else”. As such, the items “cannot constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended” (para. 35). In any event, he agreed with the trial judge that the appellant relinquished control over these items, in a practical sense, by placing them in a garbage receptacle to be picked up by the garbage collectors (para. 16). Ritter J.A. observed [para. 26]:
In some cases (Edmonton for example), all household garbage goes to a sorting facility where all bags are opened and sorted so that compostables go to a composting facility, recyclable items are taken to a recycling facility, and the remaining garbage ends up in a landfill. This sorting process, which is carried out by individuals who can see what is in every garbage bag, demonstrates that any expectation of privacy is eliminated in the disposal of garbage. In other cases, much of the household garbage generated by an entire city is transported to disposal sites across great distances .... One need only follow a garbage truck a short distance to realize that not all of its contents remain in the truck. Persons to whom garbage is entrusted have neither the obligation nor the means to protect the privacy of its donor.
Accordingly, “[a] reasonable perso[n] would not expect that garbage is secure and private, and would conclude that garbage is not obviously private in nature” (para. 41). Ritter and Watson JJ.A. dismissed the appeal.
(2) Conrad J.A. (Dissenting)
Conrad J.A. stated that the contents of the garbage bags disclosed personal and biographical information about the appellant’s lifestyle and personal choices which enabled the police to draw conclusions about what the appellant was doing inside his house. By focussing solely on the objects seized and not on the place where the searches and seizures were carried out, the trial judge failed to take into account a right of territorial privacy with respect to the places where people live and work. While location is only one of the factors to consider with respect to a claim for informational privacy, as the trial judge stated, it is the central focus of the inquiry when the privacy interest claimed is the home and its perimeter. There was no evidence to indicate that the appellant had abandoned his right of privacy with respect to his home and yard and any articles contained therein. The “totality of the circumstances” test is not designed to diminish an owner-occupier’s territorial claim to privacy, but to create the possibility of extending a territorial claim to objects found on property owned by another. Such an extension was intended to enhance, rather than detract from, a citizen’s right to privacy in the home.
As to informational privacy, the accused had not relinquished his privacy interest since the articles were still on his property in opaque sealed bags and subject to his power of retrieval at the time when they were collected by the police. Homeowners reasonably believe that information contained in their garbage will be mixed in with other garbage collected by the municipality and thereby become anonymous. Even where a piece of garbage identifies the homeowner, the vast pile of collected rubbish will make it almost impossible to find.
The appellant therefore had a reasonable expectation of privacy, and his s. 8 rights were breached by the warrantless searches. The evidence thus obtained should have been excluded, the search warrant set aside and the charges dismissed.
At issue is whether the police breached the appellant’s s. 8 Charter protected right to be free from unreasonable search and seizure, specifically:
whether the appellant had a reasonable expectation of territorial privacy with respect to his dwelling-house, its perimeter and the garbage bags stored thereon; and
whether the appellant had a reasonable expectation of informational privacy with respect to the garbage bags and the information stored therein.
If the police breached the appellant’s s. 8 Charter right, whether the evidence seized by the police from the search of the appellant’s dwelling- house and garage, and a second dwelling-house should be excluded pursuant to s. 24(2) of the Charter on the basis that its admission would bring the administration of justice into disrepute.
Labels are sometimes misleading. To describe something as “garbage” tends to presuppose the point in issue, namely whether the homeowner had any continuing privacy interest in it. It is possible that the homeowner might have no further interest in physical possession but a very strong interest in keeping private the information embedded in the contents. In that case, the question is whether he or she has so dealt with the items put out for collection in such a way as to forfeit any reasonable expectation (objectively speaking) of keeping the contents confidential.
“Expectation of privacy is a normative rather than a descriptive standard” (Tessling, at para. 42). A government that increases its snooping on the lives of citizens, and thereby makes them suspicious and reduces their expectation of privacy, will not thereby succeed in unilaterally reducing their constitutional entitlement to privacy protection. Equally, however, while a disembarking passenger at the Toronto airport might feel entitled to privacy when emptying his bowels after an intercontinental flight, the obligation to make use of a “drug loo facility” under the supervision of the authorities was upheld in the context of border formalities in R v Monney,  1 S.C.R. 652. Privacy analysis is laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy. This is inherent in the “assessment” called for by Dickson J. (as he then was) in Hunter v Southam Inc.,  2 S.C.R. 145, at pp. 159-60:
This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
Dickson J.’s analysis paid tribute to Katz v United States, 389 U.S. 347 (1967), and quoted its foundational privacy principle that “the Fourth Amendment protects people, not places” (Stewart J., at p. 351). This was elaborated upon by Harlan J. in Katz in a concurring opinion which gave rise to the twin subjective/objective enquiries into privacy expectations (p. 361).
Thus in Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission),  1 S.C.R. 425, a majority concluded that a regulatory order to produce business records did not require the prior judicial approval envisaged in Hunter v Southam, and did not violate s. 8. Lamer and Wilson JJ. disagreed. Much of the debate turned on whether reasonable people in the position of the accused would or would not expect privacy in the contents of business records in a regulatory environment. See also British Columbia Securities Commission v Branch,  2 S.C.R. 3.
In R v Wong,  3 S.C.R. 36, a majority of the Court found a s. 8 breach in circumstances where the police, without prior judicial authorization, had installed a video surveillance camera in a hotel room whose occupants were suspected of participating in a “floating” gambling operation. In a concurring opinion, Lamer C.J. and McLachlin J. (as she then was) held that s. 8 had not been breached because while “[i]n most cases, a hotel room is a location in which one has a reasonable expectation of privacy” (p. 63), the “room .... had been effectively converted into a public gaming house” (p. 62) where the accused could “no longer expect that strangers, including the police, will not be present in the room” (p. 63). In substance, they said that the accused had conducted himself in a manner that was inconsistent with the continued (and customary) expectation of privacy that an independent and informed observer would reasonably expect in a closed hotel room.
In R v Edwards,  1 S.C.R. 128, a majority held that an accused “demonstrated” no privacy interest in his girlfriend’s apartment, and police were held entitled to take the drugs found inside during what La Forest J. described as their “constructive break-in” (para. 69). In the view of La Forest J., it was “important for everyone, not only an accused, that police . . . do not break into private premises without [a] warrant” (para. 59). The division squarely reflected the notion, in my opinion, that the asserted expectation of privacy in things located on someone else’s property must be one that an independent and informed observer is prepared to recognize as “reasonable”.
In R v M. (M.R.),  3 S.C.R. 393, the majority concluded that a warrantless frisking of a student for drugs by a high school vice-principal did not violate s. 8 despite the criminal law consequences. The dissent took a broader view of a student’s reasonable expectation in the circumstances, an issue that also recently divided the Court in R v A.M., 2008 SCC 19,  1 S.C.R. 569.
In Tessling, the Court concluded that “it may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private” (para. 38 (emphasis deleted)), without need of testimony from the accused. That, too, reflects what the independent and informed observer would consider reasonable, having regard to the long-term consequences of state action on privacy interests that Canadians have and are constitutionally entitled to have in their homes.
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,  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.
As emphasized by the Attorney General of Ontario, the police practice of looking through garbage has in the past been an important source of probative evidence for the courts in the search for truth, including documents related to a murder found in garbage bags left out front of an apartment building and commingled with other residents’ bags (R v Kennedy,  O.J. No. 1163 (QL) (Gen. Div.), aff’d (1996), 95 O.A.C. 321 (sub nom. R v Joyce and Kennedy)); a burned baseball bat used to beat a person to death found in a dumpster located on a residential property (R v Papadopoulos,  O.J. No. 5407 (QL) (S.C.J.), at paras. 4 and 62-63); cans, cups and straws tossed into garbage bins and onto the ground in the public domain from which DNA has been extracted (R v Paul (2004), 117 C.R.R. (2d) 319 (Ont. S.C.J.), at p. 323; R v Briere,  O.J. No. 5611 (QL) (S.C.J.), at paras. 179-97, and R v Marini,  O.J. No. 6197 (QL) (S.C.J.)); a deceased’s gloves found in garbage behind a residential address (R v Rodney,  2 S.C.R. 687); a body placed in a commercial dumpster and later located in a landfill site (R v Sherratt (1989), 49 C.C.C. (3d) 237 (Man. C.A.), at p. 245, aff’d  1 S.C.R. 509, at pp. 513-14); a sweatshirt found in the garbage close to the scenes of a murder and sexual assaults that contained important DNA evidence (R v Kinkead,  O.J. No. 1458 (QL) (S.C.J.), at para. 32, aff’d (2003), 67 O.R. (3d) 57 (C.A.); a tissue left in a garbage pail in a motel room that the accused had checked out of (R v Love (1995), 102 C.C.C. (3d) 393 (Alta. C.A.), at p. 409); and boxes found in a garbage pail in a common laundry room adjacent to an accused’s suite that connected the accused to a robbery (R v Leaney,  2 S.C.R. 393, at p. 401).
A. The Issue of Abandonment
In R v Dyment,  2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it” (p. 435).
In R v Stillman,  1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded” (para. 223). (To the same effect see Cory J. for the majority at para. 62, and Major J., concurring in part, at para. 274.)
This may be contrasted with the situation in R v Law, 2002 SCC 10,  1 S.C.R. 227, where a locked safe containing confidential documents had been stolen (not discarded) and the accused had never acted in a manner inconsistent with the continued assertion of a privacy interest in the information contained therein. When the police, after recovering the stolen safe, decided to scrutinize the documents inside (and the accused subsequently was charged with tax offences), they infringed the s. 8 reasonableness line.
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.
B. The Totality of the Circumstances
It was established in Edwards (para. 45), and affirmed in Tessling (para. 19), that in assessing the reasonableness of a claimed privacy interest, the Court is to look at the “totality of the circumstances”, and this is so whether the claim involves aspects of personal privacy, territorial privacy or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context. Nevertheless, some analytical framework is helpful. The trial judge organized his analysis around the Tessling (para. 32) factors and, for ease of reference, I set them out (adapted to the circumstances) here:
(1) Did the appellant have a reasonable expectation of privacy?
On the facts of this case, we need to address:
What was the nature or subject matter of the evidence gathered by the police?
Did the appellant have a direct interest in the contents?
Did the appellant have a subjective expectation of privacy in the informational content of the garbage?
If so, was the expectation objectively reasonable? In this respect, regard must be had to:
the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is the impact of such a finding on the privacy analysis?
whether the informational content of the subject matter was in public view;
whether the informational content of the subject matter had been abandoned;
whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
whether the police technique was intrusive in relation to the privacy interest;
whether the use of this evidence gathering technique was itself objectively unreasonable;
whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
(2) If there was a reasonable expectation of privacy in this case, was it violated by the police conduct?
The second question is only reached if the first question is answered in the affirmative.
C. Did the Appellant Have a Reasonable Expectation of Privacy in this Case?
(1) The Subject Matter of the Alleged “Search”
It is essential at the outset to identify the subject matter of the alleged search: Tessling (at paras. 34 and 58). In R v Kang-Brown, 2006 ABCA 199, 60 Alta. L.R. (4th) 223, the Alberta Court of Appeal accepted the Crown’s argument that the subject matter of the sniffer-dog search was the public airspace surrounding a traveller’s bag. In this Court, the subject matter was found to be the contents within, and specifically the existence of narcotics (2008 SCC 18,  1 S.C.R. 456). The differing perspectives made a major contribution to a different result.
The Attorneys General characterize the subject matter here as “garbage” but, without more, this oversimplification misses (or assumes away) the point in issue. Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
The appellant had a direct interest not only in the garbage itself but, in particular, its informational content.
(2) Concealing Illegal Objects
The majority in the Alberta Court of Appeal seems to state, in para. 35, that because the items of interest located by the police revealed involvement in criminal activity they cannot “constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended”. I would have thought, with respect, that the criminal “lifestyle” of the appellant was at the epicentre of what the police wanted to know and what the appellant wished to conceal. The question is not whether the appellant had a lifestyle which society values, but whether and at what point in the disposal process innocent citizens cease to have a reasonable expectation that the contents of their garbage will remain private. The issue ought to be framed in terms of the privacy of the area or thing being searched and the potential impact of the search on the person being searched, not the nature or identity of the concealed items (A.M., at para. 72). In Kang-Brown, we held that a traveller had a privacy interest in his carry-on bag despite the fact that the bag turned out to contain drugs. In A.M., we held that a student did not forfeit his privacy interest in a backpack despite the fact that it was left unattended in a school gymnasium and that its contents included marijuana. In Wong, as stated, the Court held that people who “retire to a hotel room and close the door behind them have a reasonable expectation of privacy” (p. 50), despite engaging in illegal activity once inside. The issue is not whether the appellant had a legitimate privacy interest in the concealment of drug paraphernalia, but whether people generally have a privacy interest in the concealed contents of an opaque and sealed “bag of information”. I believe that they do. The focus is on “the person, place or thing searched and the purpose for which the search is undertaken” (A.M., at para. 72). A warrantless search of a private place cannot be justified by the after-the-fact discovery of evidence of a crime.
In the cases of searches and seizures that come before the courts, the warrantless search has almost always produced useful evidence (otherwise the matter is unlikely to be before the courts), but our concern has to take into account the spectre of random and warrantless searches which produce nothing except embarrassment and perhaps humiliation for the innocent persons who happen to be searched.
A physical search (unlike the sniffer-dog searches in Kang-Brown and A.M.) is not confined to evidence of criminal activity. The seized garbage bags contained a lot of personal items other than drug-making paraphernalia. Here the police went through several bags of personal information to find what they wanted.
Unlike the FLIR technology at issue in Tessling, the police activity in this case provided very accurate and persuasive evidence of illegal activity in the house.
(3) A Subjective Expectation of Privacy
The trial judge stated that while “there [was] no direct evidence of a subjective expectation of privacy in the contents of the garbage” (para. 29), he was prepared to assume “that information about what happens inside the home is regarded by the occupants as private” (para. 27), subject to “the concept of abandonment and the applicable law” (para. 29). Ritter J.A. said that “[o]n any measure, the expectation of privacy respecting garbage is substantially less than what one would expect for items left but not abandoned in a yard and more so relative to items found in a home. Patrick did not have an expectation of privacy in the abandoned garbage” (para. 38).
At the subjective stage of the test, I do not think “reasonableness” is the issue. The question is whether the appellant had, or is presumed to have had, an expectation of privacy in the information content of the bags. This is not a high hurdle. As mentioned, in the case of information about activities taking place in the home, such an expectation is presumed in the appellant’s favour. It is possible that the appellant (who did not testify on this point) may never have ceased to have a subjective expectation, reasonable or not. The “reasonableness” of an individual’s belief in the totality of the circumstances of a particular case is to be tested at the second objective branch of the privacy analysis.
(4) Was the Appellant’s Expectation of Privacy Objectively Reasonable?
The reasonable expectation of privacy “can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion”: R v Colarusso,  1 S.C.R. 20, at p. 53; see also R v Buhay, 2003 SCC 30,  1 S.C.R. 631, at paras. 22, 23 and 24.
Four factual elements are of prime importance in the appeal:
the garbage was put out by the appellant for collection in the customary location for removal,
that location was at or near the property line,
there was no manifestation (such as a locked receptacle) of any continuing assertion of privacy or control, and
the police took the bags to search for information about activities within the home as part of a continuing criminal investigation.
I acknowledge, however, that apart from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). The contents of the opaque sealed bags were not in public view. There is no evidence that the information was already in the hands of third parties. The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
(5) The Place Where the Alleged “Search” Occurred
In this case, the long arm of the law reached across the property line and collected the bags. On the basis of their examination of the contents of four of the bags and other evidence, the police obtained a search warrant. Conrad J.A., noting that the prosecution was built on the initial garbage seizure, emphasized territorial privacy.
The distinctions between personal, territorial and informational privacy provide a useful analytical tool but, as noted, in many instances the categories overlap. I would not draw as strict a distinction as Conrad J.A. did between territorial privacy and informational privacy. I regard the gravamen of the appellant’s complaint as the intrusion by the police into activities taking place inside his home rather than the fact that the police invaded the airspace at the foot of his garden by reaching across the lot line for the bags. If, for example, the appellant had been unloading sealed bags from his truck in the back alley, temporarily placing them on public property, I do not think the police could grab the bags on the basis that the bags had not yet reached the sanctuary of a residential lot. That is the implication of focussing privacy protection on “people, not places”. In the circumstances of unloading a vehicle, there could be no suggestion of abandonment.
I also do not think constitutional protection should turn on whether the bags were placed a few inches inside the property line or a few inches outside it. The point is that the garbage was at the property line, accessible to passers-by.
At the same time, I do not accept the argument of the Crown that there is no element of trespass involved because the police “never set foot on the appellant’s land” (R.F., at para. 66). The maxim cujus est solum ejus est usque ad coelum et ad inferos (“whoever owns the soil, owns all the way up to the heavens and down to the depths of the earth”) may be “so permeated with qualifications that it is best regarded as a ‘colourful’ and ‘fanciful phrase’ of limited validity”: B. Ziff, Principles of Property Law (2nd ed. 1996), at pp. 82-83. Nevertheless, in Lacroix v The Queen,  Ex. C.R. 69, the court held that the owner of land has a right in the airspace over his property limited by what he can possess or occupy for the use and enjoyment of his land. In Dahlberg v Naydiuk (1969), 10 D.L.R. (3d) 319 (Man. C.A.), it was held that firing a gun over a farmer’s land was a trespass to the land. In Lewvest Ltd v Scotia Towers Ltd (1981), 126 D.L.R. (3d) 239 (Nfld. S.C.T.D.), a trespass was found to have occurred when the boom of a sky crane swung over the plaintiff’s land. See to the same effect Anchor Brewhouse Developments Ltd v Berkeley House (Docklands) Developments) Ltd,  2 E.G.L.R. 173 (Ch. D). Without reviewing these cases in any detail, it seems obvious that the police could not with impunity position a cherry picker in the laneway behind the appellant’s house and, without “setting foot” on the property, grab various objects off the appellant’s lawn and porch for inspection. As Conrad J.A. rightly emphasized, the courts have long put the home near the core of privacy concerns as the place where our most intimate and private activities are most likely to take place (R v Evans,  1 S.C.R. 8, at para. 42; Tessling, at para. 22; R v Silveira,  2 S.C.R. 297, at para. 140; R v Feeney,  2 S.C.R. 13, at para. 43; and Plant, at p. 302), as well as the perimeter space around the home (R v Kokesch,  3 S.C.R. 3; R v Grant,  3 S.C.R. 223, at pp. 237 and 241; R v Wiley,  3 S.C.R. 263, at p. 273).
The point here, I believe, is that while territorial privacy is implicated in this case, the physical intrusion by the police was relatively peripheral, and viewed in context, it is better considered as part of the totality of circumstances in a claim that is preferably framed in terms of information privacy.
(6) This was not a Perimeter Search
I agree with the Crown that the police activity here did not amount to a “perimeter search” as that expression is used in our jurisprudence.
Kokesch involved a “perimeter search” of a private dwelling, but the facts were very different from the present case, as appears from the extract from the trial judgment reproduced by Dickson C.J., at p. 9:
Quite clearly from that evidence, one can see that the officer went right up to this dwelling-house, and observed it closely, and it appears from questions and answers from the cross-examination by Mr. Rosenberg that he, in fact, attempted to peer into the window. He conceded in order to get to the house he had to go down a long driveway, some seventy-five (75) to a hundred (100) yards long.
Similarly, in Grant, the police went up to the dwelling to note “what they described as the sound of electric motors or fans emanating from inside the residence”. The evidence they collected “would have been impossible to have observed without entering onto the property” (p. 228). Sopinka J. acknowledged that “warrantless searches of private property have on occasion been upheld by Canadian courts, including this Court” (p. 240) but s. 10 of the Narcotic Control Act, R.S.C. 1985, c. N-1, being inapplicable in the circumstances, there was no lawful authority for the police to walk around the perimeter of the dwelling. (In the present case, on the contrary, the police were perfectly entitled to be in the public alley to the rear of the appellant’s house.)
In Wiley, the police officer’s “perimeter search” involved walking right up to exhaust vents in the dwelling-house so closely that he “felt condensation on them and noted the smell of fresh marihuana emanating from them” (p. 267).
In Evans, the police knocked on the door of a dwelling, identified themselves, detected the smell of marijuana wafting from inside, and immediately arrested the occupants. The majority held that the police had exceeded any “implied licence to knock” because one of their purposes in coming to the door was to get a “whiff or a smell” of the drug. This constituted a warrantless search. La Forest J., concurring, expressed the view that “[o]ur society simply cannot accept police wandering about or ‘sniffing’ around our homes” (p. 13).
In Plant, police officers walked across private property to a dwelling, knocked on the door, and received no answer. They then observed two basement windows covered with “something opaque” and “they sniffed at” a dryer exhaust vent. On detecting nothing of interest, they looked inside the vent and “discovered that it was plugged with a plastic bag”. The two officers were then “chased from the premises by a resident who returned home” (p. 286).
Nothing said in these reasons should throw any doubt on the rulings on perimeter searches in Kokesch; Grant; Wiley; Evans and Plant. I do not believe that what we have in this case amounts to a “perimeter search”. The prohibition laid down in those cases is simply inapplicable to the facts of this case.
(7) Whether the Subject Matter of the Alleged Search Was in Public View
Of course the garbage bags were in plain view but the appellant asserts no privacy interest in the outside surface of the bags. His concern, as was the concern of the police, was with the concealed contents of the bags, which were clearly not in public view.
(8) Whether the Subject Matter of the Alleged “Search” Had Been Abandoned
Clearly, the appellant intended to abandon his proprietary interest in the physical objects themselves. The question is whether he had a reasonable continuing privacy interest in the information which the contents revealed to the police. There was some discussion at the bar that a privacy interest does not cease until garbage becomes “anonymous”, but as Conrad J.A. noted, much garbage never becomes anonymous, e.g. addressed envelopes, personal letters and so on. In this case, the garbage included invoices for the purchase of chemicals used in the preparation of the drug Ecstasy. The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house. Yet if there is to be a reasonable cut-off point, where is it to be located? The line must be easily intelligible to both police and homeowners. Logically, because abandonment is a conclusion inferred from the conduct of the individual claiming the s. 8 right, the reasonableness line must relate to the conduct of that individual and not to anything done or not done by the garbage collectors, the police or anyone else involved in the subsequent collection and treatment of the “bag of information”.
Stillman (at para. 62) and Tessling (at paras. 40-41) identified garbage as a “classic” instance of abandonment. Here, I believe, abandonment occurred when the appellant placed his garbage bags for collection in the open container at the back of his property adjacent to the lot line. He had done everything required of him to commit his rubbish to the municipal collection system. The bags were unprotected and within easy reach of anyone walking by in a public alleyway, including street people, bottle pickers, urban foragers, nosey neighbours and mischievous children, not to mention dogs and assorted wildlife, as well as the garbage collectors and the police. This conclusion is in general accord with the jurisprudence.
In R v Krist (1995), 100 C.C.C. (3d) 58 (B.C.C.A.), three garbage bags were placed on the side of the road in front of the appellant’s home ready for garbage pickup. As the garbage truck approached, the police grabbed two of the bags. The Crown acknowledged that without the material found in the garbage search, the police would not have had the reasonable grounds to obtain a search warrant of the appellant’s house and van. The court observed [paras. 25 and 27]:
The question here is whether the important values which s. 8 protects in relation to privacy within the home reasonably extends to that which has been discarded from the home and put out for collection as garbage. I think not.
We are not concerned in this case with a search which invaded the sanctity of the home. What we are concerned with is whether there is a reasonable expectation of privacy in relation to information that may be gleaned from trash which has been abandoned by a householder to the vagaries of municipal garbage disposal.
In Kennedy, following a homicide, a police officer in the company of a city employee took all of the bags set out for collection by the apartment building where both appellants resided. The officer then went through the garbage and was able to tie some of the contents to the appellant Kennedy, including empty envelopes and handwritten notes which were linked to the robbery. No warrant was obtained. The trial judge found that the appellant Kennedy, having discarded the contents of the garbage, had no reasonable expectation of privacy. His admission of the evidence was upheld by the Ontario Court of Appeal.
In the earlier case of R v Taylor,  B.C.J. No. 176 (QL) (S.C.), police took garbage left for pickup by the accused at the rear of his property adjacent to the back alley. In concluding that the accused did not enjoy privacy rights over the garbage, Toy J. observed at para. 49: “I am unable to characterize the removal of garbage apparently abandoned for delivery to the garage disposal areas as an unreasonable seizure.”
In R v Tam,  B.C.J. No. 781 (QL) (S.C.), police took garbage bags left lying on the pavement for garbage collectors. To reach the bags, the police officer stepped across the property line. The trial judge considered this to be a trespass in only “the most technical, trivial and insignificant sense” (para. 3), and concluded that the contents were abandoned items that were left to garbage collectors to do with as they liked and there was no reasonable expectation of privacy in those contents.
In R v Allard, 2006 QCCQ 3080,  J.Q. no 3377 (QL), a police officer stood on public property and reached beside a receptacle on private property to retrieve garbage bags. Toupin J.C.Q. held that Allard had abandoned the garbage and his constitutional rights were not violated. See also R v Barrelet, 2008 QCCS 3765,  J.Q. no 7991 (QL). In R v Andrews,  J.Q. no 8595 (QL) (C.Q.), on the other hand, the court was persuaded by the testimony of the accused to reach a contrary result on the facts.
In California v Greenwood, 486 U.S. 35 (1988), the United States Supreme Court held that by placing the garbage in opaque bags at the curbside for pickup by a trash collector, residents of a house retained no reasonable expectation of privacy in the inculpatory items which they discarded. Some State courts have reached a contrary conclusion: People v Krivda, 486 P.2d 1262 (Cal. 1971), at p. 1268; State v Morris, 680 A.2d 90 (Vt. 1996).
Nevertheless, until the garbage is placed at or within reach of the lot line, the householder retains an element of control over its disposition and cannot be said to have unequivocally abandoned it, particularly if it is placed on a porch or in a garage or within the immediate vicinity of the dwelling where the principles set out in the “perimeter” cases such as Kokesch, Grant and Wiley apply.
In municipalities (if there are any left) where garbage collectors come to the garage or porch and carry the garbage to the street, they are operating under (at least) an implied licence from the householder to come onto the property. The licence does not extend to the police. However, when the garbage is placed at the lot line for collection, I believe the householder has sufficiently abandoned his interest and control to eliminate any objectively reasonable privacy interest.
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
(9) Whether the Information Was Already in the Hands of Third Parties; if so, Was it Subject to an Obligation of Confidentiality
It was contended that the appellant retained an objectively reasonable privacy interest in the contents of the garbage bags at least until the bags were actually collected by the municipal employees. In this case, the bags were taken by police before the garbage collectors arrived.
I do not believe it is necessary to defer a finding of abandonment until the further step of the taking of the bags by garbage collectors, as this further step does not depend on any act of the claimant. Further, it would add little in the way of protection as the garbage collector could be accompanied by a police officer and simply hand the bags to the police forthwith on collection, a type of co-operation evident in Krist.
The Criminal Lawyers’ Association seeks to bring garbage collection within the proposition that private information should remain confidential to the persons (i.e. the garbage collectors) to whom it was intended to be divulged, and for the purpose for which it was divulged, citing R v Mills,  3 S.C.R. 668, at para. 108, and Dyment, at pp. 431-32. One can readily accept this proposition in the context, for example, of the doctor/patient relationship. However, to extend it to the garbage collector/householder relationship, such as it is, is a step too far. Not only does the garbage collector not undertake to keep the trash confidential, any expectation by a householder of any such undertaking would be plainly unreasonable.
Reference was also made by the appellant and supporting interveners to the City of Calgary Bylaw No. 20M2001 (Waste bylaw) (am. October 6, 2003, 38M2003), which provides that: “No person shall scavenge waste from a commercial bin, waste container or plastic garbage bag” (s. 4), and “Except as provided in section 26, the owner of a residential dwelling must ensure that waste generated at his residential dwelling is set out for collection in a waste container or a plastic garbage bag” (s. 19). This is not a bylaw enforcement proceeding. The fact that a City of Calgary bylaw says that only garbage collectors may collect garbage has little bearing, in my view, on the proper characterization of the appellant’s conduct in discarding to the municipal garbage system articles that proved to be of interest to the police. His conduct was plainly inconsistent with the retention of a privacy interest as, in my view, an independent observer would not regard such an expectation of privacy as reasonable in the totality of the circumstances.
(10) Was the Police Conduct Intrusive in Relation to the Privacy Interest?
Given that the act of abandonment occurred prior to the police gathering the garbage bags, there was no privacy interest in existence at the time of the police intervention, which therefore did not constitute an intrusion into a subsisting privacy interest.
(11) Was the Policy Technique Objectively Unreasonable?
Much has been written in the privacy cases about police techniques that undermine privacy and have the potential to make social life in this country intolerable (e.g. the use of electronic recordings of private conversations in R v Duarte,  1 S.C.R. 30). This is not one of those cases. There is always, as Hunter v Southam established, a realistic balance that must be struck between privacy and the legitimate demands of law enforcement and criminal investigation. In this case, the appellant’s conduct was, in my view, inconsistent with preservation of the former and tipped the balance in favour of the latter.
(12) Whether the Gathering of this Evidence Exposed Intimate Details of the Appellant’s Lifestyle or Information of a Biographical Nature
Lifestyle and biographical information was exposed but the effective cause of the exposure was the act of abandonment by the appellant, not an intrusion by the police into a subsisting privacy interest.
D. If the Appellant had a Reasonable Expectation of Privacy in this Case, Was it Violated by the Police Conduct?
In the absence of a subsisting privacy interest at the time the police gathered the bags, there was no violation.
In summary, I agree with the trial judge and the Court of Appeal majority in this case that the appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
In the circumstances, there is no need to consider the admission of the evidence under s. 24(2).
The appeal is dismissed.
What we inelegantly call “garbage” may contain the most intensely personal and private information about ourselves. Brennan J., in his dissent in California v Greenwood, 486 U.S. 35 (1988), illuminated the issue as follows [p. 50]:
A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like rifling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests.
As Binnie J. emphasizes, the main question in this appeal is whether there exists an objectively reasonable expectation of privacy in household waste put out for collection near one’s home. While I agree with him that there is no Charter violation in this case, in my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.
The protection of privacy is a central feature of the Canadian constitutional system. In R v Dyment,  2 S.C.R. 417, La Forest J. wrote [pp. 427-28]:
Grounded in man’s physical and moral autonomy, privacy is essential for the well‑being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
This Court has consistently observed that the home is the most private of places. In R v Silveira,  2 S.C.R. 297, Cory J. wrote: “There is no place on earth where persons can have a greater expectation of privacy than within their ‘dwelling‑house’” (para. 140). And in R v Tessling, 2004 SCC 67,  3 S.C.R. 432, Binnie J. referred to the home as “being the place where our most intimate and private activities are most likely to take place” (para. 22).
Does the state have the right to appropriate what is otherwise intensely private information from the home when it is left out for collection and disposal? My concern with allowing such an invasion of privacy is that it permits unobstructed access to information most people would never expect to be publicly accessible.
The protection against unreasonable state privacy intrusion is determined contextually by examining the “totality of the circumstances”, as developed in R v Edwards,  1 S.C.R. 128, and, more recently, in Tessling. The advantage of the contextual Tessling test is that it allows us to closely tailor the objectively reasonable expectation of privacy to the circumstances of a particular situation.
In this case, the privacy interest is primarily informational. In R v Plant,  3 S.C.R. 281, at p. 293, Sopinka J. described an individual’s informational privacy interest as “a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”. Further, “[t]his would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual” (p. 293).
What, then, are the reasonable expectations of an individual regarding the information that emanates from the home? Do individuals knowingly and voluntarily choose to part with private information when it is left out for collection? I think that when one considers the kind of medical, financial or other personal information that is potentially exposed, the answer is that most people retain an intention that the information stay private.
But as Binnie J. notes, a key countervailing factor in this appeal is the fact that the subject matter of the search, household waste, was technically “abandoned”. Binnie J. acknowledges that except for this factor of the Tessling analysis, most indicators in this case point towards a reasonable expectation of privacy.
Abandonment is merely one factor under the Tessling analysis. In my view, other factors, including whether the search exposed intimate details of an individual’s life and the location of the search at or in close proximity to the property line, militate in favour of finding a reasonable expectation of privacy in such information. Abandonment can be seen more as relating to the objects contained in the waste, rather than to the information they reveal or to one’s privacy interest in that information. It seems to me to be reasonable to infer that most individuals do not intend that that personal information will ever be disclosed without a countervailing legitimate state interest.
The heat emanations at issue in Tessling provide a useful comparator to the information conveyed through an individual’s household waste. These emanations were only involuntary to the extent that they reflected undesired by-products of activities voluntarily undertaken within the home. Yet, even though he found that there was no search in the police’s use of FLIR technology because the information it revealed was too vague, Binnie J. acknowledged that, with the benefit of more advanced technology to decipher the informational content of the emanations, the conclusion with respect to the existence of a privacy interest could change (para. 55). In my view, this observation captures the case before us to a significant degree. Even without the benefit of advanced technology, rummaging through household waste allows the police to scrutinize private activities within the home.
The City of Calgary Waste bylaw, 20M2001, governs the disposal and collection of waste. Comparable bylaws exist in numerous Canadian cities. Among other things, this bylaw prohibits scavenging, dictates the location of the waste and controls what is to be placed in the receptacle.
The municipal bylaw anticipates a system designed for hygienic waste disposal and reflects an objectively reasonable expectation that household waste will be gathered by the garbage collection system once it is left at the pickup site. While it does not oblige individuals to put certain waste out for disposal, common sense and hygienic imperatives dictate that people have no choice but to dispose incrementally of the waste in their home. However, the fact that someone has chosen to “abandon” their household waste for the specific purpose of disposal does not thereby mean that they “abandon” their informational privacy.
Individuals who put out their household waste as “garbage” expect that it will reach the waste disposal system: nothing more, nothing less. No one would reasonably expect the personal information contained in their household waste to be publicly available for random scrutiny by anyone, let alone the state, before it reaches its intended destination. Household waste, it is true, is composed of abandoned items that the occupant of the household may no longer wish to keep in his or her home. In my view, however, it is a further and unwarranted step to conclude that these individuals have abandoned the expectation, reasonable in my view, that the personal information emanating from their home will remain private.
While personal information may be obtained by searching through household waste that is left at or in close proximity to the property line for collection, on the other hand the individual disposing of the waste has indicated an intention to part with the objects contained in it. From a balancing of the Tessling factors, this leads to a conclusion that we are dealing with a diminished expectation of privacy, not unlike the reduced expectation at border crossings (see, for example, R v Simmons,  2 S.C.R. 495, and R v Monney,  1 S.C.R. 652). This does not mean that the state can arbitrarily search through the information. Barring exigent circumstances, there should at least be a threshold of reasonable suspicion about the possibility of a criminal offence before household waste left for collection is searched. (See Litchfield v State, 824 N.E.2d 356 (Ind. 2005).)
In this case, the police had ample evidence on which to base a reasonable suspicion that a crime had been committed by Mr. Patrick. They were therefore entitled to search the household waste left for disposal.
I therefore agree with Binnie J. that there is no Charter violation and would, like him, dismiss the appeal.
R v Tessling, 2004 SCC 67,  3 S.C.R. 432; Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commissioner),  1 S.C.R. 425; British Columbia Securities Commission v Branch,  2 S.C.R. 3; R v Wong,  3 S.C.R. 36; R v Edwards,  1 S.C.R. 128; R v Plant,  3 S.C.R. 281; R v Evans,  1 S.C.R. 8; R v Kokesch,  3 S.C.R. 3; R v Grant,  3 S.C.R. 223; R v Wiley,  3 S.C.R. 263; R v Andrews,  J.Q. no 8595 (QL); R v Monney,  1 S.C.R. 652; Hunter v Southam Inc.,  2 S.C.R. 145; Katz v United States, 389 U.S. 347 (1967); R v M. (M.R.),  3 S.C.R. 393; R v A.M., 2008 SCC 19,  1 S.C.R. 569; R v Kennedy,  O.J. No. 1163 (QL), aff’d (1996), 95 O.A.C. 321 (sub nom. R v Joyce and Kennedy); R v Papadopoulos,  O.J. No. 5407 (QL); R v Paul (2004), 117 C.R.R. (2d) 319; R v Briere,  O.J. No. 5611 (QL); R v Marini,  O.J. No. 6197 (QL); R v Rodney,  2 S.C.R. 687; R v Sherratt (1989), 49 C.C.C. (3d) 237, aff’d  1 S.C.R. 509; R v Kinkead,  O.J. No. 1458 (QL), aff’d (2003), 67 O.R. 67 (3d) 57; R v Love (1995), 102 C.C.C. (3d) 393; R v Leaney,  2 S.C.R. 393; R v Dyment,  2 S.C.R. 417; R v Stillman,  1 S.C.R. 607; R v Law, 2002 SCC 10,  1 S.C.R. 227; R v Kang‑Brown, 2006 ABCA 199, 60 Alta. L.R. (4th) 223, rev’d 2008 SCC 18,  1 S.C.R. 456; R v Colarusso,  1 S.C.R. 20; R v Buhay, 2003 SCC 30,  1 S.C.R. 631; Lacroix v The Queen,  Ex. C.R. 69; Dahlberg v Naydiuk (1969), 10 D.L.R. (3d) 319; Lewvest Ltd v Scotia Towers Ltd (1981), 126 D.L.R. (3d) 239; Anchor Brewhouse Developments Ltd v Berkeley House (Docklands) Developments) Ltd,  2 E.G.L.R. 173; R v Silveira,  2 S.C.R. 297; R v Feeney,  2 S.C.R. 13; R v Krist (1995), 100 C.C.C. (3d) 58; R v Taylor,  B.C.J. No. 176 (QL); R v Tam,  B.C.J. No. 781 (QL); R v Allard, 2006 QCCQ 3080,  J.Q. no 3377 (QL); R v Barrelet, 2008 QCCS 3765,  J.Q. no 7991 (QL); California v Greenwood, 486 U.S. 35 (1988); People v Krivda, 486 P.2d 1262 (1971); State v Morris, 680 A.2d 90 (1996); R v Mills,  3 S.C.R. 668; R v Duarte,  1 S.C.R. 30; R v Simmons,  2 S.C.R. 495; Litchfield v State, 824 N.E.2d 356 (2005).
City of Calgary, Bylaw No. 20M2001, Waste Bylaw: s. 4, s. 19 [am. 38M2003].
Canadian Charter of Rights and Freedoms, s. 8, s.24
Controlled Drugs and Substances Act, S.C. 1996, c. 19: s.5, s.7
Narcotic Control Act, R.S.C. 1985, c. N‑1, s. 10.
Authors and other references
Ziff, Bruce. Principles of Property Law, 2nd ed. Toronto: Thomson/Carswell, 1996.
Jennifer Ruttan and Michael Bates (instructed by M/s Ruttan Bates, Calgary), for the appellant.
Ronald C. Reimer, Paul Riley and Monique Dion (instructed by M/s Public Prosecution Service of Canada, Edmonton), for the respondent.
Michal Fairburn (instructed by M/s Attorney General of Ontario, Toronto), for the intervener the Attorney General of Ontario.
Mary T. Ainslie (instructed by M/s Attorney General of British Columbia, Vancouver), for the intervener the Attorney General of British Columbia.
Goran Tomljanovic, Q.C. (instructed by M/s Attorney General of Alberta, Calgary), for the intervener the Attorney General of Alberta.
Jonathan C. Lisus and Alexi N. Wood (instructed by M/s McCarthy Tétrault, Toronto), for the intervener the Canadian Civil Liberties Association.
Constance Baran‑Gerez (instructed by M/s Constance Baran‑Gerez, Kingston), for the intervener the Criminal Lawyers’ Association (Ontario).
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