TOP COURT TO DECIDE WHETHER TRASH IS PRIVATE

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.