R. v. Greenberg, 2024 ONCJ 481
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 09 23 COURT FILE No.: Toronto 998-23-48103098-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
PAUL GREENBERG
Before: Justice Christine Mainville
Heard on: July 29, August 16, and September 6, 2024 Ruling on Garofoli/Charter Application released on: September 23, 2024
Counsel: Jessica Cheng, counsel for the Crown Howard Cohen, counsel for the Applicant
Mainville J.:
[1] The Applicant is charged with dangerous driving. After the car he was driving collided with a truck in front of him on the Don Valley Parkway (DVP), resulting in significant damage to his vehicle, the police seized the car and sought a warrant to obtain and analyze the dash-camera and Event Data Recorder (EDR) inside his vehicle.
[2] The Applicant has brought an application to exclude the evidence seized from his dash-camera and associated memory card pursuant to the warrant, based on an alleged violation of s. 8 of the Charter. He challenges the sub-facial validity of the warrant, in addition to its facial validity. The Applicant raises several arguments relating to the authority to seize his vehicle in the first place, the grounds the police had to mechanically inspect it, the grounds the police had to retrieve data from the dash-camera, and the propriety of the ITO identifying the “place to be searched” as the police storage facility where the vehicle was being stored.
[3] I granted leave to cross-examine the affiant of the Information to Obtain (ITO) the warrant, Officer Franczak, as well as the sub-affiants, Officer Osborne and arresting Officer Uchman. The defence ultimately opted to hear from the affiant but thereafter declined to hear from the sub-affiants that had been made available.
[4] On the same day I granted leave to cross-examine, the Court of Appeal released its decision in R. v. Attard, 2024 ONCA 616, finding that there is no reasonable expectation of privacy in the data recorded by an EDR. I brought this decision to the parties’ attention given its potential relevance to this case.
[5] The Crown intended to adduce evidence relating to the grounds for the initial warrantless seizure of the vehicle at trial, in a blended fashion. This ruling is accordingly limited to the defence’s Garofoli application, in respect of which I heard evidence and received submissions.
[6] I provided my bottom line ruling on this application by email to the parties prior to the start of trial, and indicated that reasons would follow. On the date set for trial and in clarifying the evidence and argument as it relates to the initial warrantless seizure, the defence indicated it was no longer pursuing its Charter application in that regard. I therefore turn to the defence’s application as it relates to the validity of the warrant.
Reasonable Expectation of Privacy in a Dash Cam
[7] As indicated, the Court of Appeal in Attard found that there is no reasonable expectation of privacy in EDR data, such that the police did not require a warrant to retrieve it.
[8] The Crown does not take the position that Attard directly applies to video footage and data obtained from a dash-camera, as compared to an EDR. It accepts that a dash-camera may engage different privacy interests than the limited data that can be obtained from an EDR, such that it may attract a reasonable expectation of privacy. It does not contend that the police could have searched the dash-camera without a warrant in this case. Nevertheless, it argues that there was no Charter violation in the present case and that the warrant could validly issue.
[9] The Court of Appeal found that there is no reasonable expectation of privacy in EDR data because an EDR – which is an airbag deployment device – captures limited data with respect to the speed, throttle, and braking of the vehicle in the five seconds before a deployment event or near-deployment event. Further, any limited territorial privacy interest in the EDR is extinguished after the lawful seizure of a vehicle pursuant to s. 489(2): Attard, at paras. 1, 4 and 56.
[10] As rightfully pointed out by the parties, this analysis is in part based on the fact that an EDR is a component of the vehicle, just as much as its engine, steering wheel, and brakes: para. 57. The Court found that “lawful seizure of a vehicle extinguishes privacy interests in the vehicle and its component parts”.
[11] Though there was some evidence in this case that the dash-camera was hard-wired into the vehicle, the defence states that unlike the EDR, the dash-camera is something that Mr. Greenberg elected to place in his vehicle and he can easily remove it from the vehicle. It argued that it is not in fact hard-wired into the vehicle and is thus not a component of it. It is an accessory and is to be treated in the same way that a mobile phone located in a car and connected to the car’s USB port would be treated.
[12] The parties in this case also point to the fact that a dash-camera can capture audio from inside the vehicle, though no audio is being relied on in the present case.
[13] I accept based on these distinctions and the parties’ positions that the Court of Appeal’s analysis in Attard in respect of an EDR is not directly applicable to the dash-camera in this case. I will therefore proceed on the assumption that there was a reasonable expectation of privacy in the dash-camera and that the police accordingly required a warrant to search it.
[14] The decision is nevertheless of assistance as it relates to some arguments raised by the defence.
Authority to Seize the Car and Inspect It
[15] Attard makes clear that the police have the power to seize a car under s. 489(2) in circumstances such as the present ones, provided the statutory preconditions are of course met. It also makes clear that such a valid seizure includes the power to mechanically inspect the vehicle: para. 57.
[16] In that case, the police seized the car pursuant to s. 489(2)(c) and brought it to a police storage facility, as in this case. It subsequently extracted and analyzed the EDR without consent or judicial authorization. The Court upheld the validity of the search.
[17] The defence in this case initially argued that there was no legitimate seizure at the roadside under s. 489 of the Code because the police had no grounds to believe an offence had been committed. As indicated, it is no longer pursuing this argument at this juncture.
[18] In any event, the grounds set out in the ITO relating to the leadup to the initial seizure of the vehicle would clearly have been sufficient to seize it under s. 489(2), or some other legal authority. The officers made direct observations of the Applicant’s driving and, following the collision, proceeded to arrest him for dangerous driving. They also seized the car and towed it to a police storage facility.
[19] Section 489(2)(c) enables a peace officer who is in the execution of his or her duties to, without a warrant, seize any thing that the officer believes on reasonable grounds will afford evidence in respect of an offence.
[20] Based on the analysis in Attard, the police did not require specific grounds to believe the vehicle was unfit in order to mechanically inspect it, as argued by the defence. No judicial authorization was in fact required for this purpose in the circumstances. And here, such an inspection would clearly afford relevant evidence as it could clarify, as testified to by the officer, whether any defect was a contributing factor to the collision or not. As stated by the Crown, if there was an issue with the vehicle, that could only inure to the Applicant’s benefit.
[21] Attard also makes clear that the car is a thing to be searched within the police facility where the car is located – it is not a place: para. 58. This directly responds to the defence argument that the “place” to be searched set out in the ITO ought not have been the address of the police facility. In any event, the ITO made abundantly clear to the issuing justice that what was to be searched was the vehicle and the dash-camera located at this facility.
[22] I now turn to the defence’s central arguments relating to the facial and subfacial validity of the warrant as it relates to the dash-camera, and the law in that regard.
The Law on Warrant Reviews
[23] A warrant, like any court order, is presumed valid. The burden is on the applicant to prove the ITO was insufficient: R. v. Campbell, 2011 SCC 32, at para. 14.
[24] The test for review of a search warrant is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Araujo, 2000 SCC 65, at para. 51.
[25] The standard of review for an authorization is deferential. If the authorizing justice “could have” issued the warrant, then the reviewing judge should not interfere: Araujo, at para. 51. Stated differently, the reviewing judge must be satisfied that there is “no justifiable basis” upon which the justice could have granted the warrant, before interfering.
[26] A facial challenge to the warrant alleges “that the record before the authorizing judge was insufficient to make out the statutory preconditions.” An attack on facial validity involves an examination of the ITO by itself, not involving amplification or record evidence, and determining whether a justice could have issued the warrant: R. v. Sadikov, 2014 ONCA 72, at para. 37.
[27] A sub-facial challenge alleges that “the record did not accurately reflect what the affiant knew or ought to have known”: World Bank Group v. Wallace, 2016 SCC 15, at para. 120. An attack on sub-facial validity involves an examination of the form of the ITO with a view to “impeaching the reliability of its content” and to determining “whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant.”: Sadikov, at para. 38; Araujo, at para. 50; Wilson, at para. 40.
[28] The process is one of testing the accuracy of the ITO against the reasonable belief of the affiant, not against the ultimate truth of what was asserted: R. v. Paryniuk, 2017 ONCA 87, at para. 77. The assessment is based on what the affiant knew or ought to have known when the ITO was sworn: Paryniuk, at para. 77.
[29] The affiant, in drafting the ITO, must “make full, frank and fair disclosure of all material facts in the ITO supporting the request”: R. v. Nguyen, 2007 ONCA 24, at para. 48; R. v. N.N.M. (2007), 223 CCC (3d) 417 (Ont. S.C.), at para. 320. The facts must be set out “truthfully, fully and plainly”: N. N.M., at para. 320.
[30] The discovery of “fraud, non-disclosure, misleading evidence and new evidence” is relevant but their “sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”: Garofoli, at p. 1452; Pires, at para. 8. R. v. Hafizi, 2016 ONCA 933, at para. 44.
[31] Where material non-disclosure is made strategically, the failure to draft an ITO that is full, fair and frank may invalidate the warrant and thereby constitute a breach of s. 8 of the Charter: Araujo, at paras. 47, 60.
[32] Where there is an innocent material omission, the reviewing judge must ask “whether the omission leaves the issuing judge with an incorrect impression or an insufficient basis on which to issue the warrant”: R. v. McElroy, 2009 SKCA 77, at para. 30.
The Facts
[33] The ITO in this case sets out the fact that moments prior to the collision, a Collision Reconstruction Squad that happened to be travelling northbound on the DVP to reach another collision site, observed four to five vehicles also travelling northbound “in a dangerous manner, all travelling at high speed and weaving through lanes of traffic”. One of the vehicles was observed to be a grey Volkswagen.
[34] The ITO reports that this Volkswagen subsequently struck the rear of a large truck in the curb lane. Significant damage was caused to the front end of the Volkswagen. The ITO sets out that an officer – unidentified in the affidavit – notified dispatch of the accident and indicated that speed was a factor in the collision.
[35] The ITO suggests that the Reconstruction Squad did not in fact observe how the collision happened.
Grounds for the Warrant to Issue
[36] I first note that on its face, there were sufficient grounds for the warrant to issue. There were grounds to believe that an offence had been committed, and to believe that searching the dash-camera would afford evidence with respect to the commission of this offence.
[37] Indeed, the ITO stated that the Collision Reconstruction Squad “observed four (4) to five (5) vehicles travelling northbound in a dangerous manner, all travelling at a high rate of speed, and weaving through lanes of traffic. One of the vehicles was observed to be a grey Volkswagen. After a short time, the Volkswagen had struck the rear of a large truck”. The ITO then goes on to detail the damage to the vehicle and provide more details about the collision, including a diagram purportedly setting out the dynamics of the collision.
[38] This information was primarily based on first-hand observations of more than one police officer and was reliable.
[39] The defence argues that there was no information in the ITO about whether the dash-camera was in working order, or basis to believe that it would afford evidence of dangerous driving.
[40] The affiant confirmed that he didn’t necessarily know that the dash cam was operative, but as he testified, “generally if there is a dash cam in the car, it would be operational – otherwise what is the point of having one”.
[41] There is no suggestion in Attard that the police had information that the EDR was properly functioning. It would be nearly impossible to ascertain this, without retrieving it.
[42] Here, there was no speculation about there being a dash-camera inside the car – it was observed by the police. And there was no reason to believe that it was not in working order. It was reasonable to assume that it was. I therefore reject the defence’s argument on this point.
[43] As for grounds for believing that the dash-camera would afford evidence of dangerous driving, the affiant testified that a dash-camera would generally capture what is viewed during driving. And while he acknowledged that he did not know what the video would show until it was obtained, he knew that the Applicant had been charged based on the other officer’s observations of the Applicant’s driving.
[44] Despite the police’s “momentary lapse of observation” immediately preceding the collision, it is evident that they had grounds to believe that the dash-camera would afford some evidence of what the officer witnesses said they witnessed in terms of the Applicant’s driving – that is, of speeding and weaving through traffic. Based on that driving and the fact of the collision, the police accordingly had grounds to believe the Applicant had driven dangerously.
[45] The defence’s central argument is that had the investigation at the roadside been fulsome and obvious points regarding the accident addressed and put in the ITO, the issuing justice would not have been satisfied that there were reasonable and probable grounds to charge dangerous driving and to issue the warrant.
[46] For the purpose of a Garofoli analysis challenging a warrant, it is generally accepted that the police “are to be judged on what they did, not what they could have done”. The failure to take further investigative steps before seeking a warrant will not invalidate the warrant: R. v. Vu, 2011 BCCA 536, at paras. 44, 45.
[47] As such, the fact that the police did not obtain more details regarding the Applicant’s explanation for the collision and did not do a reconstruction of the accident is neither here nor there for present purposes.
[48] A failure to take investigative steps is only relevant as it relates to whether the ITO discloses sufficient grounds to authorize the warrant: R. v. Morley, 2013 BCSC 463, at paras. 21 to 22.
[49] Here, the defence focuses on the fact that the ITO suggested that the Applicant’s speeding caused the collision, whereas the police had information, not included in the ITO, that could have detracted from that suggestion. The defence argues that there were significant additional facts relating to the driving at the time of the collision and what would have led to the collision that should have been set out in the ITO, and that ultimately would bear on whether the warrant could have issued. It argues that there was a lack of full, fair, and frank disclosure, given the numerous omissions and what it argues are misleading statements.
[50] To challenge the suggestion in the ITO that speed was a factor in the collision, the defence primarily points to information known to the affiant that a third vehicle was involved and had forced the Applicant to reverse his decision to change lanes and pass the truck in front of him. This stems from the Applicant’s explanation provided to an officer at the scene of the accident. Indeed, the Body Worn Camera (BWC) video of an officer at the scene and introduced on this application shows the Applicant telling the officer that he attempted to pass the truck but a car matching his speed boxed him in.
[51] The defence argues that the involvement of a third vehicle in the collision tends to undermine the statement in the ITO that the collision was caused by the Applicant speeding, and accordingly it should have been included in the ITO.
[52] The ITO makes no mention of a third car potentially driving in a dangerous fashion in relation to the collision, although it does mention the fact that other cars were observed speeding and weaving through traffic in the moments ahead of the collision.
[53] The ITO also sets out a diagram composed by Officer Steuer, originating from the officer’s Motor Vehicle Collision Report, showing the two vehicles involved in the collision. These are identified with boxes containing the numbers 1 and 2 respectively. The diagram also shows the “estimated dynamics” of the collision, with the Applicant’s vehicle going from the curb lane into the centre lane (of a three-lane highway) and back behind the truck in the curb lane. Less apparent on the face of the diagram is a number 3 – not framed by a box – that might suggest the presence of a third vehicle in the centre lane and near where the truck would have been around the time of the collision. No explanation of this diagram is offered in the ITO, nor is there any indication in the ITO that no reconstruction of the accident was completed in this case.
[54] The affiant testified that he received information that this was a 2-car collision, which is accurate. Only two vehicles collided with each other. As to whether a third vehicle was involved in what precipitated the collision, the affiant testified that he did not see the #3 on the diagram as referring to a third vehicle being involved. He found the diagram clear in depicting where contact was made and the vehicles’ resting places, as well as the estimated dynamics of the collision. At that point in the ITO, he explained that he was not so much trying to show what caused the collision but rather the fact of it – that there was contact between the two vehicles.
[55] He also confirmed that he was aware of the Applicant’s explanation from the BWC. He acknowledged that he could have included this in the ITO and understood its potential significance given that the officers did not witness the actual collision but explained that he was focused on the third-party information and the fact of the collision. He explained that not including the Applicant’s explanation was an oversight, and that at the time, he believed he had all the information he required for the ITO.
[56] Part of the information regarding the collision that was not included in the ITO and that the defence argues ought to have been, is the truck’s slow speed and the skid marks on the road over a distance of approximately 35 metres. The defence submits these are material omissions regarding how the collision in fact transpired. It says these facts support the Applicant’s awareness and arguably his actions in trying to avoid a collision, as opposed to driving dangerously.
[57] The affiant agreed that he did not include any reference to the skid marks, fluid trail and debris that could indicate that the Applicant took evasive action as opposed to just going into the rear of the vehicle.
[58] The defence also points to the fact that there was no mention of the light traffic on the highway, which is a fact noted in Officer Uchman’s notes, and which it argues could inform whether speed was a major factor in the collision or not.
[59] As for the damage occasioned to the vehicle, the Applicant filed an affidavit on this application stating that Officer Uchman advised him “in no uncertain terms that the damage to the vehicle as evidence of excessive speed served as his affirmation to lay the criminal charge of Dangerous Operation.” This would suggest that the police drew the inference of excessive speed being the cause or a factor in the collision from the damage occasioned to the vehicle, whereas – it says – this damage was merely caused by the fact that the car’s front bumper was lower than the height of the truck’s rear bumper. Officer Uchman did not testify on this application, so this assertion was never put to him.
[60] In any event, I do not agree that these additional facts have a meaningful bearing on the grounds contained in the ITO and on whether the warrant could have issued.
[61] In my view, the fact of the collision was merely one factor in the grounds put forward for issuance of the warrant. The defence’s focus on it and its cause is unwarranted. The ITO did not assert that the collision had been witnessed by members of the Reconstruction Squad, nor did it purport to definitively say how it transpired. The critical part of the ITO, in my assessment, are the grounds that related to the driving that preceded the collision.
[62] In that regard, as set out above, the ITO stated that the Reconstruction Squad “observed four (4) to five (5) vehicles travelling northbound in a dangerous manner, all travelling at a high rate of speed, and weaving through lanes of traffic. One of the vehicles was observed to be a grey Volkswagen.” That same Volkswagen is then identified as the one involved in the collision, and therefore the Applicant’s vehicle.
[63] When questioned about the cause of the collision, the affiant relied on the information he received from the officer at the time of the incident, via the iCad report, that speed was a factor. He denied that speed was merely inferred based on the damage occasioned, as opposed to the earlier observations of the four to five vehicles. The affiant acknowledged the fact that the damage may have been occasioned by the car getting under the truck, but that fact also did not detract from the grounds to believe the Applicant was speeding – based on the earlier observations. This was not unreasonable, or an unfair accounting of the circumstances known to the affiant at the time.
[64] Indeed, given the timing of the racing observations as immediately preceding the collision, it seems reasonable to infer that the grounds to believe that speed was a factor in the collision stem at least in part from those observations.
[65] Materiality must be evaluated in the totality of the circumstances: R. v. Nguyen, 2011 ONCA 465, at paras. 57 and 58.
[66] The Applicant’s explanation as to how the collision occurred was not particularly material given the grounds relating to the driving that preceded it. His explanation for the collision does not exclude the possibility or detract from the grounds to believe that he drove dangerously prior to the collision, nor does it detract from the fact that that driving may have been a contributing cause for the collision. It does not exclude the possibility that he was unable to take evasive action and was boxed in in part because of his manner of driving. In fact, it may even explain it.
[67] Certainly, it may ultimately be that the Applicant was not driving dangerously, or even speeding at the time of the collision, and it may be that it was one of the other four drivers – or some other driver – whose maneuver(s) in fact caused the collision. Indeed, the fact that there were other apparently-racing vehicles means that they could have been responsible for occasioning the collision.
[68] But the question is whether there were grounds to believe that the Applicant was driving dangerously. The fact that up to four other vehicles were speeding and weaving through traffic was included in the ITO. Not including the Applicant’s explanation that another vehicle was responsible for boxing him in was therefore not critical and would not have detracted from the grounds to issue the warrant.
[69] Similarly, the grounds to believe that the Applicant took evasive action to avoid colliding with the truck does not detract from the grounds to believe that he was driving dangerously in the first place. And the ITO does disclose those grounds, based on the Reconstruction Squad’s observations preceding the collision. This is my view is sufficient to conclude that the warrant could have issued.
[70] To be sure, the fact of a collision remains relevant to the grounds to believe that dangerous driving has occurred, even if the collision itself was not witnessed and its cause is uncertain: see R. v. Bush, 2010 ONCA 554, at paras. 54, 57-58, as it relates to impaired driving. An accident or collision is certainly not determinative, but it is part of the constellation of factors that may reasonably be considered by the police.
[71] While it may have been preferable to include the bulk of this information, it would not have materially detracted from the grounds to issue the warrant. There is no need to include every single piece of information in an ITO: R. v. Nguyen, 2011 ONCA 465, at para. 51. Only “material facts” must be included: Araujo, at para. 46.
[72] There were also no intentional omissions here, done for the purpose of misleading the issuing justice. I accept the affiant’s testimony that he was focused on demonstrating the fact of the collision, and that he did not avoid including information in the ITO in bad faith or in some attempt to mislead. And carelessness in drafting is not generally sufficient to invalidate the warrant: R. v. Prosser, 2014 ONSC 2645, at para. 52.
[73] As for grounds relating to the Applicant’s pre-collision driving, the defence contends that the ITO did not include information specific to each vehicle observed by the Collision Reconstruction Squad as driving in a dangerous manner – they were all merely lumped in together.
[74] The affiant confirmed that while he did not have specifics regarding each vehicle that would’ve been observed speeding and changing lanes at a high rate of speed, as set out in the ITO, he received information that the Applicant’s vehicle was part of that group of cars observed by the Reconstruction Squad. He confirmed his understanding of one of the witness officer’s notes that the passing cars demonstrated a “marked departure” and that a Volkswagen was amongst the group of vehicles that passed the scout car.
[75] The police therefore had grounds to believe that the Applicant was driving in the manner described in the ITO, that is that he was speeding and indeed racing with other cars. A collision occurred mere moments later. Those grounds were sufficient for the warrant to issue, and the evidence adduced at this hearing does not detract from that.
[76] The defence argued that there was a rush to judgment in arresting Mr. Greenberg and that this was a fishing expedition – that the police pursued the dash-camera and EDR in an effort to potentially make out the charge and find evidence of an offence if it existed. Counsel argues that if it wasn’t a fishing expedition and the police honestly had enough to charge Mr. Greenberg, then they did not need the dash-camera.
[77] This ignores the distinction between the reasonable grounds the police require to arrest and lay a charge, and the more stringent standard to convict him at trial. The fact that the police pursued additional evidence to buttress their case against Mr. Greenberg in no way undermines their decision to arrest and charge him.
[78] Finally, the defence complained that the ITO should have included the Applicant’s objection to the initial car seizure and to the car being towed, and reference to the fact that he had wanted it and the dash-camera released to himself, for good reasons relating to his insurance. It appears from his testimony that the affiant was not necessarily aware of any such objection. In any event, given that this does not go to the grounds in support of the search warrant or tend to detract from any such grounds, I do not see this as a material fact that ought to have been referenced in the ITO. The fact that there was no consent and indeed that the driver took issue with the seizure is not relevant to whether the police had grounds and therefore the authority to seize the vehicle and its contents or not.
Section 24(2)
[79] I note that even if I am wrong in the above assessment, I would not have excluded the evidence under s. 24(2) of the Charter. Much of the analysis in Attard on this point is applicable here, in particular as it relates to the impact on the accused’s Charter-protected interests, and the reliability and significance of the data to the Crown’s case: see para. 74.
[80] Indeed, like an EDR, the data captured by the dash-camera in this case “is completely objective. It contains no information going to the driver’s biological core, lifestyle, or personal choices, nor information that could be said to directly compromise his ‘dignity, integrity and autonomy’”: Attard, at para. 65. It also contains information limited to a fairly narrow window of time before the collision, albeit a longer one than for an EDR. Still, it does not provide general data “on driving patterns, driving history, or average driving speed”: para. 65.
[81] The defence argues here that a dash-camera does include a GPS system, meaning that it functions as a location tracker, unlike an EDR. While that would certainly inform the reasonable expectation of privacy analysis, as would the fact that the dash-camera captures audio from inside the car, in the particular circumstances of this case, I do not understand the police to have gathered this information or at least the Crown to rely on it. This is relevant to some extent to the s. 24(2) analysis.
[82] What the dash-camera presumably did capture and that is of import to this case, is “the manner of driving, which is a public, highly regulated activity”: Attard, at para. 68. This was a significant factor in the analysis in Attard. At para. 68, the Court stated that “[w]hile EDR data contains more detailed information than what a member of the public might observe, the information is qualitatively similar – the speed of the vehicle and whether braking can be seen.” The video recorded by the dash-camera here falls into that same category, despite the video providing a perspective of the road from the front of the car.
[83] Indeed, a dash-camera almost exclusively captures what is happening on the road and is visible to others on a public roadway. Any reasonable expectation of privacy in what was retrieved from the dash-camera in this case is therefore low.
[84] In terms of the seriousness of any Charter violation, I have no basis here to say that the officers acted in bad faith. They may have been in a hurry to get to another collision scene, but that does not make out bad faith. I certainly found the affiant to have acted in good faith. He did not avoid including information in the ITO to mislead or for another improper purpose.
[85] Moreover, unlike in Attard, the police here did obtain a warrant, including to search and inspect the vehicle, even though it now appears that that was not necessary as it relates to the vehicle itself including the EDR. They did so in good faith.
[86] Any breach was not serious, the impact on the Applicant’s privacy was minimal given what the dash-camera in this case captured and did not capture, and the data gathered is reliable and central to the Crown’s case.
[87] The application is therefore dismissed.
Released: September 23, 2024 Signed: Justice Mainville
