Pubdate: Wed, 1 Oct 2008
Source: Globe and Mail (Canada)
Copyright: 2008 The Globe and Mail Company
Author: Kirk Makin, Justice Reporter
Bookmark: (Asset Forfeiture)
Bookmark: (Cocaine)
Bookmark: (Ecstasy)


Controversial Case of Calgary Warrant Based on Search of Garbage 
Behind House One of Several Challenges Before Judges

The highlight of the Supreme Court's fall term could well turn out to 
be garbage.

One of the most intriguing cases the court will hear revolves around 
the extent to which an individual can expect garbage to be private.

The case arose in Calgary when police successfully obtained a search 
warrant based on the contents of garbage from behind Russell 
Patrick's home - including materials normally associated with home 
ecstasy labs.

A judge presiding at Mr. Patrick's trial heard that, on six 
occasions, investigators had lifted garbage bags from an open 
receptacle located on his property, inches from an alley.

The judge ruled the search was lawful, and convicted Mr. Patrick of 
producing, possessing and trafficking ecstasy. In a 2-1 split, the 
Alberta Court of Appeal agreed that Mr. Patrick did not enjoy a 
"reasonable expectation of territorial privacy" in his garbage.

Last weekend, at a legal conference organized by York University's 
Osgoode Hall Law School, Ontario Superior Court Judge Bruce Durno 
highlighted the case and noted a judicial trend toward allowing 
police to seize items that an individual has clearly thrown away.

"Unless it happens to be attached to your arm with a bungee cord, 
it's gone," he said.

However, defence counsel Joseph Neuberger argued that individuals 
might choose to dispose of their garbage in some other manner if they 
suspected that it would end up being sifted and seized by police.

"We have agencies that carry out these services for us - and you 
might very well take other steps, rather than abandon your privacy 
interests," Mr. Neuberger said.

The court will also hear a case that was launched by the Criminal 
Lawyers Association after it was denied access to a suppressed police 
report into a botched murder case.

In its ruling on the case last year, the Ontario Court of Appeal used 
Ontario's Freedom of Information and Privacy Act to strike a blow for 
free expression by ruling that government officials cannot simply 
suppress the report without first considering the public interest in 
its release.

If upheld, the ruling will likely force the province to hand over an 
internal Ontario Provincial Police report into the botched 
prosecution of two men who were acquitted in the execution-style 
slaying of gangster Domenic Racco in 1983.

Despite judicial findings of misconduct by police, the OPP found no 
evidence of attempts to obstruct justice.

Other cases the court will hear include:

A family law case in which a B.C. couple, Nancy Rick and Berend 
Brandsema, separated after a 27-year marriage and attempted to divide 
their share of a dairy-farm business.

They ultimately agreed on a plan to divide their farm, another 
dairy-farm business, and a house purchased with farm funds. Ms. Rick 
also received an equalization payment of $750,000 - an amount that a 
lawyer for the wife advised might be too low.

Ms. Rick later launched a court action attempting to reopen the 
separation agreement on the basis of misrepresentation on the value 
of some of the assets.

A challenge to Alberta legislation that forces about 250 Hutterites 
to violate their religious beliefs by allowing their photographs to 
be used on driver's licences.

In one of several cases the court will hear that test laws allowing 
the forfeiture of money or property derived from crime, an Ontario 
man, Robin Chatterjee, is trying to recover $29,020 in cash and 
various items seized by the province.

Mr. Chatterjee brought a motion that challenged the constitutionality 
of the province's forfeiture legislation. He lost at trial, and has 
asked the Supreme Court to decide whether the province intruded on an 
area of federal jurisdiction - criminal law - by applying its 
forfeiture provisions.

Regina v Jason Bjelland, a case in which U.S. and Canadian border 
officials discovered about $1-million worth of cocaine in the 
defendant's truck.

A trial judge excluded evidence on the basis that it took the Crown 
three years to disclose it to him. Mr. Bjelland was ultimately 
acquitted. On appeal, the Alberta Court of Appeal ordered a new trial 
in a 2-1 ruling. 
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