R. v. Attard
Court Information
Court File No.: Brampton 18-5964
Date: February 25, 2020
Ontario Court of Justice
Before: Justice P. T. O'Marra
Heard: August 15, 2019
Oral Reasons for Ruling: September 20, 2019
Written Reasons for Ruling: February 25, 2020
Parties and Counsel
Between:
Her Majesty the Queen
— AND —
Wendel Attard
Counsel:
- Dhanveer Mangat, for the Crown
- Silvia Kissova, for the defendant Wendel Attard
Introduction
1These are my reasons on the Applicant's section 8 Charter Application.
Overview
2This application deals with the issue of when the police seized the Applicant's vehicle and extracted the Event Data Recorder (EDR) without prior judicial authorization or his consent, breached the Applicant's section 8 Charter rights "to be secure from unreasonable search and seizure."
3After investigating a serious vehicle collision, the Peel Police's Major Collision Bureau arranged for the Applicant's vehicle to be towed to a car storage facility. Five (5) days later, the police with the assistance of the fire department, accessed and extracted the EDR from the centre console of the Applicant's vehicle. Officer Ball seized the device and gave it to Officer Carrier. Officer Carrier downloaded the contents of the EDR and generated a 79-page record of the EDR prior to the collision.
4The Applicant was neither arrested at the scene nor advised that he was the subject of a criminal investigation.
5No consent or prior judicial authorization was sought to search the Applicant's vehicle or to seize and search the EDR from the vehicle.
6On May 2, 2018, 42 days after the collision, the Applicant attended 21 Division and was charged with Dangerous Operation of a Motor Vehicle Causing Bodily Harm, contrary to section 249(3) of the Criminal Code of Canada.
7The theory of the Crown alleges that the Applicant committed the offence of dangerous driving by way of speed alone.
The Agreed Statement of Facts
8An agreed statement of facts was filed by the Crown and Defence in this Application and marked as exhibit #1. The Application did not proceed as a blended voir dire.
9On Friday, March 23, 2018 at approximately 4:16 pm, the Applicant was driving his 2015 grey Lexus IS250, southbound on Highway 50, approaching Queen street in the City of Brampton.
10Thongbai Xao was operating a 2010 grey Toyota Corolla, northbound on Highway 50, approaching Queen Street.
11Highway 50 is a six-lane regional road, which runs north and south. There are three lanes for northbound traffic and three lanes for southbound traffic. Both sides have dedicated left turn lanes.
12The two vehicles collided. The Applicant was transported to Brampton Civic Hospital with injuries. Mr. Xao was transported to Sunnybrook Hospital with injuries.
13The Major Collision Bureau attended and processed the scene.
14Officer Carrier attended the collision scene and noted the damage to both vehicles.
15Officer Elson attended the collision scene and observed a vehicle in the south west area of the intersection and the other vehicle in the same area but on its roof in the ditch.
16Officer Elson noted that Mr. Xao's vehicle had extensive front end damage, the windshield was smashed, the hood was off one side, and the rear passenger side was dented. The damage to the Applicant's car was noted as having its front end "smashed in", the airbags were deployed, and the roof was dented.
17Officer Ball was the Officer-in-Charge on the day of the collision. He attended the "Punjabi Insurance Inc." located nearby to secure any video surveillance.
18Officer Ball was told, Officer Curtrara, an off-duty York Regional Police Officer had recorded the collision on his dashcam video.
19Officer Ball contacted the Brampton Transit Authority and made a request to obtain video footage from a bus that was stopped at the intersection.
20On Wednesday, March 28, 2018 Officer Ball attended the car storage facility where both vehicles were kept. He contacted the non-emergency fire department and requested assistance to have the EDR extracted from both vehicles. The fire department crew attended, and hydraulics were used on the Applicant's vehicle to remove the EDR. Hand tools were used to remove the EDR from Mr. Xao's vehicle. Officer Ball seized the EDRs from both vehicles and gave the devices to Officer Carrier.
21On March 28, 2018, Officer Carrier completed a tabletop download and generated a report record using the Bosh Crash Data Retrieval (CDR) system on both vehicles' EDRs prior to the collision.
22The data retrieved generated information on the vehicles' speed, accelerator pedal, engine throttle, engine RPM, motor RPM, brake pattern, brake oil pressure, steering input, shift position, drive mode, cruise control and longitudinal acceleration.
23The speed limit on Highway 50 is 80 km/hr. The data showed that the Applicant was driving at 130 km/hr 0.75 seconds prior to the collision and 122 km/hr 0.25 seconds prior to the collision.
24On March 30, 2018, Officer Ball submitted the EDR to property.
25The Applicant's mother was the registered owner, but the vehicle belonged to the Applicant. At the time, the Applicant was insured under his mother's policy for cost efficiency reasons.
Voir Dire Testimony
Officer Ball's Evidence
26Officer Ball testified that on March 23, 2018, he was working in the Major Collision Bureau of Peel Police. He had approximately 16 years policing experience. He testified that he received a call to attend the scene of a major collision located at the intersection of Highway 50 and Queen street. He described this intersection as "massive" due to the number of lanes. Upon his arrival, he observed that the grey Toyota and the silver Lexus were involved in a major collision. Both cars were heavily damaged, and both airbags had deployed. The vehicles were located near the south west corner of the intersection. The Lexus was on its roof in the ditch. Since the speed limit on Highway 50 was 80 km/hr, and there was extensive damage to both vehicles, Officer Ball concluded that the speed involved in the collision must have been excessive.
27Officer Ball testified that before he received any information regarding the cause of the accident, he contemplated that due to the excessive speed, and the amount of traffic to be expected at this intersection, the accident may have been caused by the dangerous operation of a motor vehicle under the Criminal Code. However, he was satisfied that if the accident did not involve excessive speed, the only charge that could be considered was the offence of 'turn not in safety' contrary to the Highway Traffic Act.
28Officer Ball testified that there was an off-duty police officer who had a dash board camera that captured the collision. The video was copied, downloaded to a USB stick and given to Officer Ball. He viewed the video on his laptop. Officer Ball testified that he observed that the Lexus entered the intersection, tried to avoid striking the Toyota, but struck the Toyota with enough force that three (3) wheels from the Toyota were lifted off the ground. The Toyota spun counter-clockwise "540 degrees" and "slapped" the Lexus. The video showed other vehicles travelling southbound and turning westbound, which demonstrated the difference in speed between the Lexus and the other vehicles.
29Officer Ball testified that after he viewed the video, he concluded that he was investigating a criminal offence and made the decision to seize both vehicles. He testified that he seized the vehicles without a warrant pursuant to section 489(2) of the Criminal Code. The cars were towed by a contracted private towing company to their car storage facility, which did not permit public access but permitted the police 24 hours access. The cars remained at the storage facility for a period of five (5) days. On March 28, 2018, Officer Ball attended the storage facility to remove the EDR. He testified that the EDR was part of the Airbag Control Module (ACM). Officer Ball testified that it was his usual practice to remove the ACM and the EDR with his hand tools, however, given the amount of broken glass and/or the difficulty to access the car, he required the Fire Department's assistance. Hydraulic tools were used by the Fire Department to break open the area in order to access and extract the EDR from the Applicant's car. The police located the ACM which was deep under the centre console, behind the radio and the gear shifter.
30Officer Ball testified that that once he had access to the EDR he conducted a "bench top down load" with police software which permitted him to image the data. The data was forwarded to Officer Carrier for the preparation of a report.
31Officer Ball testified that the ACM electronically records a vehicle's parameters with respect to the number of times the ignition was cycled, the accelerator and brake pedal positions, vehicle speed, engine speed, throttle percentage, whether seatbelts were worn, changes in the speed of the car. The parameters for speed are recorded in half second increments for approximately five (5) seconds prior to the airbag deployment which occurs at the point of impact. The EDR measures the rate of deacceleration, if any, before impact. While a vehicle is travelling the EDR "overwrites" itself every five (5) seconds.
32The data that is recorded by the EDR cannot be reprogrammed by the owner or the operator. It cannot be accessed by the owner or the operator and only special software must be used to access the EDR. The EDR does not record any data that is biographical in nature regarding the owner or the operator. It will not record GPS coordinates. Officer Ball described the ACM as a "silent observer".
33Officer Ball maintained that he was investigating the criminal offence of dangerous operation and therefore, he seized Applicant's vehicle and the EDR, pursuant to section 489(2) of the Criminal Code.
34Officer Ball testified that in the past, he has never sought a search warrant to seize a damaged vehicle, the EDR and its contents.
35Officer Ball testified that on March 28, 2019, Officer Carrier provided the data from the EDR and he saved it on a disc which contained the entire report on a PDF. The summary of the EDR yielded the following speed information about the Applicant's Lexus five (5) seconds before the accident:
| Time Before the Collision | Speed in Kilometres per Hour |
|---|---|
| 4.75 | 120 |
| 4.25 | 122 |
| 3.75 | 123 |
| 2.75 | 126 |
| 2.25 | 127 |
| 1.75 | 128 |
| 1.25 | 129 |
| 0.75 | 130 |
| 0.25 | 122 |
| 0.00 (impact) | 113 |
36Officer Ball testified that based on the forensic evidence of speed of the Applicant's Lexus, the number of cars turning left at the intersection, the heavy traffic, and his analysis of the different visual comparisons of the significant differences in speed at the time of the accident from both the dash cam video and the Brampton Transit Bus surveillance video, Officer Ball arrested the Applicant on May 2, 2018.
37In cross-examination, Officer Ball confirmed that he applied for and received from the City of Brampton, a download of a video from a city transit bus that was stopped at the intersection. The video provided a "perpendicular view" of the intersection. However, Officer Ball did not review that video until well after the accident. He conceded that his notes did not reflect what he had observed on the dash camera video on the day of the accident. He only noted his observations on April 1, 2019 in order to refresh his memory before he contacted and interviewed the civilian witnesses. He conceded that he never wrote in his notes that he observed on the video, that the Toyota's wheels were lifted into the air after being struck by the Lexus.
38In cross-examination, Officer Ball testified that he never obtained the consent of either driver to seize the EDR from their respective cars. During his cross-examination, it became clear that Officer Ball did not record the following in his notebook:
- That he was investigating the Applicant for dangerous driving when he seized his car on March 23, 2018.
- That he was investigating any criminal offence after he seized the EDR on March 28, 2018.
- That he seized and accessed the Applicant's car pursuant to section 489(2) of the Criminal Code.
39Officer Ball agreed that when he told the Applicant on April 4, 2018 that he could reclaim his car from the car storage facility, he did not advise the Applicant that he was being investigated for dangerous driving.
40Officer Ball confirmed that at the time of his investigation, he was aware of two judgments from the Superior Court of Justice, R. v. Hamilton, [2014] ONSC 447 and R. v. Glenfield, [2015] ONSC 1304, that held that the police should obtain either the owner's consent, or a search warrant, before they access and seize a damaged vehicle's EDR. Even though he was unfamiliar with the details of both decisions, Officer Ball disagreed with the courts' decision that an owner and/or driver should be afforded the right to privacy in the device and its contents. Officer Ball was aware of an opposing decision from the British Columbia Court of Appeal, R. v. Fedan, [2016] BCCA 26, that supported the police seizure of the EDR without a search warrant or the owner's consent. However, it was obvious from his testimony that he was not aware of the facts nor the ratio of the Fedan decision, other than the case "did not go to the Supreme Court of Canada". Officer Ball confirmed that notwithstanding the Ontario decisions, the Peel Police Service had not amended its policy on the seizure of the EDR from a damaged vehicle. He was unaware that as a result of the Glenfield case that the Waterloo Regional Police Service had amended their policy, and currently use a template in their applications to obtain search warrants for a damaged vehicle's EDR. Officer Ball testified that he "recently" discovered that the Criminal Law office for the Attorney General of Ontario supports the Major Collision Bureau's decision to seize a damaged vehicle's EDR without a search warrant or the owner's consent.
41Officer Ball confirmed that before he testified at the voir dire, the Crown had brought to his attention the decision in R. v. Anstie, [2019] O.J. No. 806 (S.C.J.).
42Finally, in cross examination, Officer Ball testified that he had no idea whether either vehicle was repaired. But he felt that at the time of the seizures, both vehicles were inoperable.
Officer Carrier's Evidence
43Officer Carrier had worked for Peel Police Service for thirty (30) years. When he testified, he was retired from Peel Police. Officer Carrier confirmed that he was working in the Major Collision Bureau on March 23, 2018. He was tasked to download the EDR and prepare an analysis of the data which he provided to Officer Ball. He estimated that he has downloaded and prepared reports for approximately one hundred (100) EDRs and that it was never his practice to apply for a search warrant for the EDR.
44Much of Officer Carrier's evidence confirmed Officer Ball's testimony regarding the function of the EDR, its value to police investigations, and the EDR's inability to capture and record any biographical information regarding the owner or the driver.
Was the Applicant's Rights Under Section 8 of the Charter Violated?
45Section 8 of the Charter provides that "everyone has the right to be secure against unreasonable search and seizure".
46Deschamps J. for the majority in R. v. Gomboc, [2010] S.C.J. Not. 55 (S.C.C.) in paras. 17-20 summarized the applicable legal principles on a s. 8 Charter issue as follows:
- This Court's foundational decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, established that s. 8 of the Charter protects a right to privacy. Principles delineating the right to privacy laid own in Hunter apply with equal force today. Section 8 of the Charter protects "people, not places" (p. 159). Like all Charter rights, the s. 8 right to privacy is not absolute - instead, the Charter protects a reasonable expectation of privacy. Dickson J. (as he then was) framed determination of a reasonable expectation of privacy in the following terms:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. 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. [Emphasis in original; pp. 159-60.]
In R. v. Edwards, [1996] 1 S.C.R. 128, a majority of this Court held that a "reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances" (para. 45). In subsequent cases, the reasonable expectation of privacy analysis proceeded in two steps, asking whether the accused had a subjective expectation of privacy and whether than expectation of privacy was objectively reasonable (R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 19; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; and R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579).
In Tessling, Binnie J. wrote that because privacy is a varied and wide-ranging concept, the s. 8 jurisprudence has evolved to recognize a number of privacy interests, namely:
(i) Personal Privacy, involving bodily integrity and the right not to have our bodies touched or explored;
(ii) Territorial Privacy, involving varying expectations of privacy in the places we occupy, with privacy in the home attracting heightened protection because of the intimate and private activities taking place there;
(iii) Informational Privacy, involving "the claim of the individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others" (at para. 23, quoting A.F. Westin, Privacy and Freedom (1970), at p. 7).
Tessling also recognized that these categories, though analytically useful, do not necessarily exist in isolation and may overlap.
- If, in the first instance, a reasonable expectation of privacy is determined to exist, a search intruding upon that interest will engage s. 8 of the Charter. Because the Charter protects only against unreasonable searches, the next step after a reasonable expectation of privacy has been established is to inquire whether the search is reasonable. A search involving a Charter-protected privacy interest will be reasonable if the police are authorized by law to conduct the search, if the law authorizing the search is reasonable, and if the search is conducted in a reasonable manner. (R. v. Collins, [1987] 1 S.C.R. 265, at p. 278). In most cases, this requires obtention of a search warrant requiring police to satisfy a judicial authority that there are reasonable and probable grounds to believe that a search will reveal evidence of an offence (see, e.g., Criminal Code, R.S.C. 1985, c. C-46, s. 487). In certain situations where only a lowered expectation of privacy is recognized, police must instead have a reasonable suspicion that a search will uncover evidence of an offence before they may undertake it (see, e.g., Kang-Brown). Where no reasonable expectation of privacy is established, no threshold justification is required because the search does not trigger Charter protection (see, e.g. Patrick).
Does the Applicant have a subjective expectation of privacy?
47In this case, the Crown did not contest that the Applicant does have a subjective expectation of privacy in the EDR and its data. Therefore, I find that the Applicant had a subjective territorial and informational right to privacy of the interior of the vehicle and specifically, the EDR located underneath the console and the data stored. However, the Crown disputes that there is an objectively reasonable expectation of privacy in the totality of the circumstances.
Is the subjective expectation of privacy objectively reasonable in these circumstances?
48The Crown argues that the warrantless seizure of the EDR and the subsequent extraction of the data were devoid of any Charter breach. The police were lawfully present to investigate a serious vehicle collision on a public roadway. Furthermore, the police had a duty to seize any "thing" which includes a vehicle, as long as the seizing officer has reasonable grounds to believe that the "thing" will afford evidence with respect to an offence, pursuant to section 489(2) of the Criminal Code. Once the vehicle has been lawfully seized the police have the power to examine a vehicle and no further warrant is required to forensically examine its contents.
49As the evidence in this case discloses, the EDR and its data does not reveal "core biographical information" regarding the driver and or the owner of a vehicle. The data only reveals how various components of the vehicle operated less than five (5) seconds before impact and the deployment of the airbag. The information relates to speed, steering, and braking. The EDR is analogous to an onboard computer. But the EDR is unlike an individual's cellphone or personal computer which contains far more personal information which requires more protection. See: R. v. Jones, 2011 ONCA 632, [2011] 107 O.R. (3d) 241 and R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60.
50There is, however, information that is sought and obtained by police that seemingly does not contain personal information, but nevertheless is considered private. Justice Binnie wrote in R. v. A.M., 2008 SCC 19, at para 68, that in the decisions of Dyment, Plant and Tessling:
"...various categories of "information" (including "biographical core of personal information") were used as a useful analytical tool, not a classification intended to be conclusive of the analysis of information privacy. Not all information that fails to meet the "biographical core of personal information" test is thereby open to the police. Wiretaps target electrical signals that emanate from a home; yet it has been held that such communications are private whether or not they disclose core "biographical" information. R. v. Sanelli, [1990] 1 S.C.R. 30 (S.C.C.); R. v. Wiggins, [1990] 1 S.C.R. 62 (S.C.C.), and R. v. Thompson, [1990] 2 S.C.R. 1111 (S.C.C.). The privacy of such communications is accepted because they are reasonably intended by their maker to be private."
51The Anstie decision is the most recent decision from the Superior Court of Justice on the issue of whether the data from the EDR enjoys the same privacy protections. In that case, the applicant applied for a judicial review of the warrant that was issued, claiming that the ITO contained information that was obtained in violation of section 8 of the Charter. Upon review, Justice London-Weinstein rejected that there was a privacy interest in the EDR data that was downloaded days after a serious collision and declined to excise that information from the ITO for the purposes of determining whether the warrant could have been issued.
52The facts in Anstie are to some extent different than the case at bar. The car involved was rented and the property of the rental car agency. Mr. Anstie had signed a rental agreement that the car could not be used in an illegal and reckless manner. If, he breached any conditions of the agreement; the rental agency reserved the right to terminate the contract and seize the car. Moreover, the contract indicated that Mr. Anstie consented to the extraction of the EDR and the rental agency could use the data.
53After Mr. Anstie's rental vehicle was towed to the car storage facility, the police attended and searched the interior of the car looking for the keys, and in doing so, found a knapsack with drug paraphernalia in it and a bag of marijuana. There were two capped syringes in plain view in the front passenger area. The keys were never located but the rental agency provided the key fob and the EDR was downloaded. The police sought a warrant to obtain the blood vials and the medical records of Mr. Anstie. The court excised portions of the ITO but found there was some credible and trustworthy evidence that if believed, provided a basis for the issuance of the warrant. As well, the court decided the issue of validity without the need to consider the EDR evidence.
54Although not determinative of the issue, the renter's consent to the EDR being removed from the car was one factor that Justice London-Weinstein agreed diminished or impacted Mr. Anstie's reasonable expectation of privacy. The overall expectation of privacy was lessened by the fact that Mr. Anstie's was not the owner. Despite the potentially incriminating information, the court found that Mr. Anstie did not have a privacy interest in the data, since it did not contain any of his personal characteristics. Finally, the court also decided that the search was authorized by the consent of the owner of the vehicle, the rental agency.
55Despite Justice London-Weinstein's reasons, I cannot agree that there were no informational privacy interests in the EDR.
56I prefer the reasoning in both R. v. Hamilton, supra. and R. v. Glenfield, supra. that the subjectively held expectation of privacy in the stored data contained in the EDR of a vehicle, is objectively reasonable.
57The Hamilton decision involved a fatal collision involving two vehicles. After the collision reconstructionist examined the damage, roadway markings, the position of the two vehicles and other information provided at the scene, he believed that the accident involved dangerous driving. While on scene, and as part of his investigation, the officer imaged the data from the EDR.
58The crown argued, as in the case at bar, that there was no reasonable expectation of privacy regarding how fast a person is driving, braking or steering on a public street. As well, any driver must expect that in the event of a serious vehicle collision, there will be a police investigation, and that it is reasonable to expect that the police will examine the scene. Moreover, there are no personal details, voices or sounds recorded on the EDR.
59In my view, the specific nature of the data recorded in the EDR is different information that a member of the public could reasonably observe. We expect that a witness to a collision may observe; the movement of the vehicle(s) before impact, or provide an educated guess on speed, or whether there was any braking. However, the witness will never be able to provide engine speed, throttle position, the state of the driver's seatbelt switch, whether the passenger air bag was abled or disabled, the time between impact and airbag deployment, ignition cycle counts, engine RPM, brake oil pressure, cruise control, steering input, or longitudinal acceleration which is all recorded on the EDR. (See: Hamilton, para. 58)
60In R. v. Wise, [1992] 1 S.C.R. 60, Supreme Court found that there was a violation of section 8 of the Charter, after a search warrant to a vehicle had expired and the police surreptitiously installed an electronic tracking device inside the accused's vehicle. Justice LaForest recognized the important distinction between the public movement of the individual and the risk that the police, in the absence of prior authorization, will track an individual's every move, including one's vehicle through a device. (See: Wise, para. 80)
61The category of information that is accurately stored in the EDR is not exposed to the public and is inherently different than the tangible mechanical parts of a vehicle. Exacting and interpreting the information from an EDR is not like putting a vehicle on a lift and inspecting the brakes and tires. The EDR is not exposed to the public. It is difficult to extract and can only be interpreted with a specialized software program. This data falls into a different category of information that is not exposed to the public view and does not eliminate any objectively reasonable expectation of privacy.
62Although there was a reduced level of expectation of privacy to the Applicant's vehicle, I find that the search of the Applicant's vehicle by Officer Ball was intrusive. There was no search warrant sought. Officer Ball did not seek to obtain the permission of the Applicant to access the vehicle's EDR. Officer Ball required the assistance of the Fire Department to remove the EDR. The Fire Department was required to use hydraulic equipment to remove the EDR. Hand tools were used to remove the Toyota's EDR. The officer concluded that the Applicant's car was a "write off" without any input from the Applicant.
63The Applicant's car remained in a car storage facility for five (5) days before Officer Ball attended with the Fire Department to extract the EDR. There was no evidence that there were any exigent circumstances that existed. This was not a search incident to arrest. There was ample time for Officer Ball, or his designate, to apply for a search warrant. In my view, this was an unlawful trespass by the police. (See: Hamilton, para. 64, and Wise, para. 105) I find that the examination of the EDR data by officers Carrier and Ball was intrusive. The information obtained was highly relevant and probative to the investigation and not mundane and unsurprising. (See: Tessling, para. 55 and Hamilton, para. 68) I find that the use of the data was objectively unreasonable. The EDR is an on-board computer that collects the vehicle's data which is owned and created by the owner. (See: Hamilton, para. 69)
64In Glenfield, the court found that section 8 protection was afforded to the Applicant when officers from the Waterloo Regional Police Service attended at the scene of a fatal vehicle accident and downloaded the data from the EDR. The Applicant was charged with impaired driving causing death, dangerous driving causing death and refusing to provide breath samples. The charges arose out of a vehicle accident in 2011 in which the Applicant failed to stop at a stop sign and stuck a van killing an 11-year old boy. After the accident, the investigating officer entered the van, and without the owner's consent and without prior judicial authorization, downloaded the EDR.
65The court held that the owner of the damaged vehicle had an objectively reasonable expectation of privacy in the interior of the vehicle, including the contents of the EDR, as it was private information that revealed the precise details of the Applicant's driving. Justice Hambly agreed with the analogy drawn by Justice MacDougall in Hamilton to Justice LaForest's judgement in Wise. However, Justice Hambly drew a further analogy to Justice LaForest's decision in R. v. Duarte, [1990] 1 S.C.R. 30. Justice Hambly stated the following at para. 50:
I agree with the analogy drawn by Justice MacDougall to Justice La Forest's judgment in Wise. I would draw a further analogy to the decision of the Supreme Court of Canada in R. v. Duarte, [1990] 1 S.C.R. 30 in the judgment of Justice La Forest. In that case, the Supreme Court of Canada considered section 178.11(2)(a) of the Criminal Code which permitted a participant in a conversation to record it on the basis that he consented to its being recorded when the other party to the conversation did not know that it was being recorded. Where the consenting party was a police officer with a hidden recorder the Supreme Court of Canada held the non-consenting party's right to be secure against search and seizure guaranteed by s. 8 of the Charter was violated. The Supreme Court of Canada rejected the argument that the non-consenting party was running the risk that his conversation might be recorded where the non-consenting party was a police officer. The court held that the police would need a warrant before they could engage in this investigative procedure. Justice La Forest stated the following:
….and that interception of private communications stands to afford evidence of the offence.
The Defendant contends that since the seizure the EDR device was a warrantless search, it is presumed unreasonable and therefore, in violation of section 8 of the Charter provided that the [19] ...If one is to give s. 8 the purposive meaning attributed to it by Hunter v. Southam Inc., one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8 should be more directly aimed ...
[21] ... Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
[22] The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveller of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.
... But, for the reasons I have touched on, it is unacceptable in a free society that the agencies [page45] of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable.
[25] ... If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed court agrees that the Defendant had a reasonable expectation of privacy in the subject of the search, the data from the EDR. The Crown bears the onus of establishing that the search was reasonable.
66In Glenfield, the police entered the car at the scene and downloaded the EDR. The court found that the purpose was to gather evidence to assist the prosecution with any charges that might be laid. Justice Hambly felt that if this was permitted, the police at any accident scene can enter, without a warrant, any damaged vehicle and download information from the vehicle, including extensive details regarding the movement of the vehicle. There were no exigent circumstances that made it necessary for the police to act before getting a warrant. Justice Hambly stated that the police had the ability to tow the car to a storage yard and obtain a warrant the following day. (See: Glenfield, para. 51) It is worth noting that after the release of Hamilton, and on the advice of counsel to the Waterloo Regional Police Service, the investigating officer in Glenfield testified that he drafted a template for an information to obtain a search warrant for the downloading of an EDR. Before Hamilton and Glenfield, the police believed that they had authority under the Highway Traffic Act to remove a vehicle's EDR.
67In addition to the recent decision in Anstie, the Crown relies on the Fedan decision from the British Columbia Court of Appeal. The Appellant was convicted of two counts of dangerous driving causing death. He was the owner and operator of a pick-up truck involved in an accident where two passengers died. Following the accident, the appellant's truck was lawfully seized pursuant to section 489(2) of the Criminal Code. The police obtained a search warrant authorizing the forensic search and seizure of blood, DNA, fingerprints, personal effects and documentation in the vehicle relating to registration, insurance and maintenance logs. A collision analyst and accident reconstructionist removed the EDR and downloaded its data. The EDR was not listed in the search warrant. The trial judge held that the Appellant did not have a subjective expectation of privacy and admitted the data. The Court of Appeal dismissed the appeal, on the basis that although jurisprudence supported a presumption that the appellant had a subjective expectation of privacy in the EDR and its contents based on territorial privacy interests, the appellant did not have an objectively reasonable expectation of privacy in the EDR data. The court held that the appellant's territorial interests in the EDR were extinguished by the lawful seizure of the vehicle, and he had no informational privacy interest in the EDR data as it contained no information that touched on his biographical core, including any personal identifiers that linked him to the captured data.
68The Fedan case can be distinguished on its facts. Unlike in the case here, following the accident, Mr. Fedan was placed under arrest for impaired driving and the vehicle was lawfully seized without a warrant pursuant to section 489(2) of the Criminal Code. No issue was taken with the lawfulness of the seizure of the vehicle. There was a witness that had followed Mr. Fedan's pick-up truck and observed his erratic and dangerous driving before the collision. The officer testified that his decision to not seek a search warrant was based on the legal advice from the Department of Justice. However, once the decisions in Hamilton and Glenfield were released, the officer testified that he immediately changed his practice and began obtaining search warrants in these circumstances.
69The defence takes issue with Officer Ball's claim that he seized the Applicant's car as a "thing" pursuant to section 489(2) of Criminal Code. Besides whether the lawfulness of the seizure can be sustained which I will address momentarily, I have misgivings about whether Officer Ball was relying on the seizure without warrant provision in the Criminal Code. There was nothing in Officer Ball's notes that indicated that he was embarking upon a criminal investigation into dangerous driving and proceeding with a seizure of vehicles without a warrant. He testified that he had only a suspicion that the accident was caused by dangerous driving.
70The police power to seize "any thing" without a warrant is outlined under section 489(2) of the Criminal Code and provides the following:
Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.
71The Crown submits that Officer Ball ordered the seizure of the vehicle as a "thing" pursuant to section 489(2) of the Criminal Code. There was no issue taken that the police were lawfully present investigating a serious vehicle collision in a public place at the intersection of Highway 50 and Queen Street, in the City of Brampton. Police are presumed to be "lawfully present in a place" when investigating a serious vehicle collision on a public roadway. (See: CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at paras 20-22, and R. v. Vu, 2011 BCCA 536 at paras. 29-31, aff'd 2013 SCC 60) It was also necessary for public safety to remove the Applicant's vehicle and deliver it to a storage facility for safe keeping. The police have a duty to prevent and investigate crime that is recognized at common law. The ancillary powers provide a right to seize and secure a vehicle, however they do not provide a police officer with the right to conduct the search. (See: Hamilton, para. 94)
72Pursuant to section 489(2), the "thing" seized may include a vehicle. Subparagraph (c) requires that the seizing officer must have reasonable grounds to believe that the "thing" will "afford evidence with respect to an offence." The officer must be able to articulate why the "thing" seized is related to any possible offence under investigation. (See: CanadianOxy, paras 15-27) Based on both his observations of the carnage in the intersection, and his review of the dash camera video, Officer Ball only had a suspicion the collision was the result of excessive speed.
73Officer Ball was clear that he did not agree with the holdings in Hamilton and Glenfield that either the prior judicial authorization or the owner's consent were required to seize and extract the EDR and its contents. As a matter of course, the Major Collision Bureau does not, as a general policy, apply for a search warrant for the extraction and analysis of the EDR from a vehicle involved in a collision. It was implicit from Officer Ball's testimony that he seemed to place some weight on the fact that if a car is a "write off" there is a reduced expectation of privacy. In my view, the expectation of privacy is not somehow lost because a vehicle has been damaged. Furthermore, it is improbable to contend that a vehicle is "evidence of the offence" in an allegation of dangerous driving that did not involve a collision. In so far as the police would not be able to seize whatever might be in the car without prior judicial authorization. (See: Hamilton, para. 41-42) I agree with the defence that Officer Ball relied on section 489(2) of the Criminal Code retrospectively.
74Even if I am incorrect that Officer Ball did not rely on section 489(2) of the Criminal Code and unlawfully seized the car, I reject the Crown's argument that particularly in a motor vehicle investigation that the vehicle(s) involved should always be treated as a "thing". The vehicle as a "thing" is the very object involved in the collision. The Crown contends that it is the very "thing" used and will afford evidence of the commission of any offence(s).
75I reject the Crown's argument that any vehicle involved in a collision becomes a "thing" as compared to "a place" and any reasonable expectation of privacy of the owner is lost. (See: Hamilton, para. 37) The Applicant's factum states, the Supreme Court of Canada in R. v. Belnavis, [1997] 3 S.C.R. 341 has afforded section 8 protection against state intrusion into a vehicle, even though the Court has characterized the privacy interest as being "reduced" in comparison to other territorial privacy interests. The Court stated the following at para. 38:
…this Court has held that motor vehicles, though emphatically not Charter-free zones, are places in which individuals have a reasonable but "reduced" expectation of privacy.
Conclusion
76Both on the facts of this case, and the reasoning in Hamilton and Glenfield, I find that the Crown has not met the test to justify a warrantless search. The search was not authorized by law and that the search was neither a reasonable search, nor carried out in a reasonable manner.
77I find that the Applicant in this case had a reasonable expectation of privacy in EDR and its contents. The actions of Officer Ball, after five (5) days post accident, entering the Applicant's vehicle with the assistance of the Fire Department removing the EDR with hydraulics, and downloading the data constituted a warrantless search and seizure. The Crown has failed to demonstrate that it was reasonable. Therefore, I find that the police violated the Applicant's right under section 8 of the Charter.
Should the Evidence be Excluded under Section 24(2) of the Charter?
78Section 24(2) of the Charter states:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
79The purpose of s. 24(2) is to maintain public confidence in the administration of justice.
80In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court sets out the following considerations for any application to exclude evidence under section 24(2) of the Charter:
(a) The seriousness of the Charter-infringing state conduct.
(b) The impact of the breach of the Charter-protected interests of the accused; and
(c) The societal interest in an adjudication of the case on its merits.
The seriousness of the Charter-infringing state conduct
81In Grant, the court stated that the concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. To determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. (See: Grant, para. 73)
82State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. (See: Grant, para. 74)
83Good faith on part of the police will also reduce the need for the court to disassociate itself from police conduct. Supreme Court made clear in Grant"ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith." (See: Grant, para. 75) This is because the police "are rightly expected to know what the law is." (See: Grant, para 133.) Deliberate conduct of the police to ignore Charter standards tends to support exclusion of the evidence. However, even if a court finds that the police acted in accordance with the law, a "taint of impropriety, or even inattention to constitutional standards…might well be enough to tip the scales in favour of exclusion, given the deleterious effect on the accused's legitimate privacy interests." (See: R. v. Blake, [2010] ONCA at para. 33).
84As in the Fedan decision, had a breach been found, and in the Hamilton and Glenfield decisions where a breach of section 8 was established, the courts did not exclude the evidence. At the time, there was scarcely any jurisprudence to guide their decisions. But, in 2018, there was judicial guidance in the Province of Ontario pertaining to this issue, and in my respectful view, this impacts the analysis of whether there was good or bad faith on part of the police.
85The seriousness of the violation was further aggravated by Officer Ball's in-court testimony. Officer Ball's misguided effort to justify his unconstitutional actions by rejecting two Superior Court of Justice decisions only exacerbates the magnitude of the misconduct in this case. (See: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 26) It was apparent from Officer Ball's testimony that he held in high disregard the dicta from both decisions in Hamilton and Glenfield. Although he was not familiar with the facts, he disagreed with the courts' views that there should be an expectation of privacy in the EDR and its contents and that prior judicial authorization or the owner's consent was required before the EDR was removed and analyzed. Instead of following or upholding the law from two unambiguous decisions from Superior Court of Ontario, Officer Ball chose to follow, without knowing the facts or ratio, the Fedan decision from British Columbia. But more importantly, in 2018 the Major Collison Bureau of the Peel Police Service seemingly ignored these decisions and did not change its policy regarding the seizure of the EDR from vehicles involved in serious collisions. Officer Ball stated that he has the support of his "Staff Sergeant" and "Bay Street" (meaning the Attorney General of Ontario). In Glenfield, the court found that given the lack of judicial direction in 2011, it was too high a standard to require that the police obtain a warrant or the consent of the owner/driver before accessing the EDR of a damaged vehicle at the scene of an accident. (See: Glenfield, para. 74) In my view, in 2018 there was clear judicial direction that established a standard for the police to meet. This standard was disregarded by the police. In my view, when Officer Ball seized the EDR and its data, he deliberately ignored and was indifferent to the jurisprudence, that underlined the requirement that a search warrant, and or the owner's consent, was required to seize the EDR and its data in the Province of Ontario. I find that Officer Ball acted in bad faith.
86There were no exigent circumstances, urgency or danger during the investigation to preserve evidence, that warranted the removal of the EDR without prior judicial authorization or dispensing with the owner's consent. The Applicant's vehicle remained in a secure car storage facility for a period of five (5) days which was more than enough time to apply for a search warrant.
87In all the circumstances, after considering both the police wilful blindness and an apathetic attitude towards upholding the law which led to the infringement of the Applicant's section 8 rights, the seriousness of the violation, in these circumstances, is at the serious end of the spectrum and, therefore, favours exclusion of the evidence.
The impact of the breach on the Charter-protected interests of the Applicant
88The analysis requires an evaluation to the extent in which the breach undermines the interests protected by the section 8 rights that were infringed. It is recognized that the place that was searched was not a dwelling that attracts a higher expectation of privacy than a vehicle. (See: Grant, para. 113) The impact of a breach may range from minimally to profoundly intrusive.
89When Officer Ball seized and eventually entered the vehicle to extract the EDR, the Applicant was not present. The vehicle could not be driven and needed to be towed away from the accident scene. The vehicle was secured in a storage facility. There was no interference with the Applicant's dignity or his bodily integrity. During the period that the vehicle was in the car storage facility, an application could have been submitted by the police for a valid warrant to search and seize the EDR and its contents. In these circumstances, I am confident that judicial authorization would have been granted. For those reasons, I find that the impact falls at the moderate end of the spectrum.
The societal interest in the case being adjudicated on its merits
90Crown submitted that the exclusion of the EDR and its data, will "halt" the prosecution. I find that the evidence is real and reliable. It is not conscripted evidence. The Defence argued that is not the case, since there is a dash camera video of this violent collision and that there are witnesses that can assist in determining the speed of the Applicant's car before impact. The best evidence, however, is the raw data that does establish the speed of the impacting vehicle. The case is serious as the other driver was injured. These considerations count favorably towards admitting the evidence. Nevertheless, they must be weighed against the factors pointing towards exclusion. The fact that the offence involved is extremely serious is essentially a neutral consideration because it has the potential to "cut both ways." Although the seriousness of the offence increases the societal interest in a prosecution on the merits, the public "also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high." (See: Grant, at para. 84) The immediate effect of excluding reliable evidence of a serious crime on how people view the justice system, while undoubtedly relevant, cannot be allowed to overwhelm the s. 24(2) analysis. That sentiment must be balanced against the impact of admitting the evidence, in all the circumstances of the case, on the long term-repute of the administration of justice. (See: Grant, at paras. 82, 84)
Conclusion regarding section 24(2) of the Charter
91Balancing the three factors, the most critical, in my view, is that given the Hamilton and Glenfield decisions, in 2018 the police should have been expected to obtain a valid search warrant or the consent of the Applicant before removing the EDR from his car. The court cannot countenance an unwritten institutional police policy to neither seek prior judicial authorization nor the owner's consent and allow the police to seize a damaged vehicle's EDR and its contents. This case is seemingly reflective of a policy by the Major Collison Bureau in this jurisdiction to deliberately ignore, the extent of their duty in respecting the owner or driver's expectation to privacy in the EDR and its contents, under 8 of the Charter.
92Reflecting on all the circumstances of this case, in deciding to admit or exclude the evidence, I am to balance the interests of truth seeking with the need to maintain the long-term integrity of the administration of justice. (See: Grant, para. 82)
93In this case, after balancing the seriousness of the violation, the moderate impact on the Applicant's Charter-protected interests, while also remembering society's interest in this case being adjudicated on its merits, I believe that the exclusion of the evidence obtained from the EDR located in the Applicant's vehicle, would better serve the long-term repute of the administration of justice.
Released: February 25, 2020
Signed: Justice P.T. O'Marra