LINDSAY

COURT FILE NO.: 575/11
DATE: 20140218

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
– and –
Murray Hamilton

Applicant

Ms. Rebecca Griffin, for the Crown

Mr. Jeffrey Hershberg and Mr. Reid Rusonik, for the Applicant

HEARD: December 11, 12, 16 and 18, 2013

Macdougall, J.

REASONS FOR RULING ON CHARTER APPLICATIONS

Ruling

[1] On Jan 2, 2014 I issued my ruling on the Applicant’s s. 8 Charter Application with reasons to follow. These are those reasons.

Overview

[2] This case deals with another in a series of question as to whether the police, in using investigative techniques as a result of new technologies available without prior judicial authorization, breached an individual’s section 8 Charter rights “to be secure from unreasonable search and seizure”.

[3] In the investigation of a serious motor vehicle collision with a driver seriously injured (who turned out to be fatally injured), the police accessed the data stored on the Applicant’s Airbag Control Module (ACM), colloquially referred to as the vehicle’s “black box”, located under the floor carpeting under the driver’s seat of the Applicant’s vehicle. Although the privacy issue of the data stored on a vehicle’s ACM or “black box” has received a fair amount of discussion in the media and in the state legislatures in the United States, there has been very little judicial discussion in Canada.

Background Facts

[4] The Applicant was the owner and driver of a 2007 GMC Sierra pick-up truck that was involved in a fatal collision on March 11, 2011. The Applicant’s truck was heavily damaged in the collision at the intersection of two rural roads, Farmstead Road which is eastbound/westbound and Eldon Road which is northbound/southbound. The intersection is governed by stop signs for Farmstead Road. Eldon Road is the “through road” at this intersection.

[5] The Applicant’s truck had been travelling eastbound on Farmstead Road and the other vehicle, a Saturn station wagon, was travelling northbound on Eldon Road. The Applicant’s truck collided with the Saturn station wagon and the Applicant’s truck came to rest partially on the travelled roadway. The Applicant was taken by ambulance to the hospital shortly after the collision for observation. The driver of the Saturn died at the scene.

[6] The Ontario Provincial Police Collision Reconstructionist, Constable Michael Downs, attended on the scene shortly after the collision.

[7] After examining the damage to the two vehicles, the roadway markings, the resting places of the two vehicles and from other information provided to him at the scene, Constable Downs was of the opinion that the Applicant’s truck had not come to a stop before entering the intersection. In his affidavit, filed on the Application at para. 21, Constable Downs attested: “It was my belief that the driver [the Applicant] had purposely driven through the stop sign without stopping and that this was Dangerous Driving.”

[8] As part of his further “on-scene examination” of the vehicles involved in the collision, Constable Downs “imaged the data” from the airbag control modules of the Applicant’s truck and the other vehicle involved in the collision. This imaging is done by the officer plugging in an adapter into the airbag control module (ACM) located inside the vehicle and then connecting it to his laptop computer, which has a software program to allow the imaging of the data.

[9] The ACM in the Applicant’s truck is located under the carpeting on the floor under the driver’s seat. The ACM for the Applicant’s truck electronically recorded parameters with respect to accelerator pedal position, vehicle speed, engine speed, percentage throttle, and brake switch circuit state, whether seatbelts were in use and changes in the velocity of the vehicle. The parameters are recorded in half-second increments for 2 ½ seconds prior to airbag deployment which would have occurred at the point of impact.

[10] When the vehicle is involved in a collision resulting in the deployment of the airbags, the data that is being recorded on the ACM is not reprogrammable by the owner or operator. The ACM does not record GPS coordinates, sound or any “personal” data.

[11] According to Constable Downs, different models of vehicles and different years of vehicles will have ACMs that will record a variety of different data. Each year there are additional improvements to the amount of data that gets stored on the ACM after the airbags are deployed.

[12] After Constable Downs viewed the contents of the data recorded, he was of the opinion that the data “confirmed” that the Applicant had not stopped at the stop sign, but had accelerated through the intersection in the seconds leading up to the collision.

[13] Constable Downs then proceeded to remove the ACM from the Applicant’s truck as evidence and also seized the Applicant’s truck by having it towed from the roadway to a secure location.

[14] While the Applicant’s truck remained in the possession of the police, the police subsequently conducted a mechanical inspection of the Applicant’s truck and using information from the ACM, conducted speed calculations and also prepared a “reconstruction” video for intended use at the Applicant’s trial.

[15] The Applicant’s truck was “written off” and not repaired. If the truck had been repaired, a new ACM would have had to be installed in the truck as a result of the airbags having been deployed in the collision.

[16] The Applicant was not asked by the police for permission to obtain the information from the ACM in his truck, nor was he asked to consent to the removal of the ACM from his truck. The police did not seek to obtain a search warrant to obtain the information from the ACM or to seize the ACM.

[17] The Applicant at the time was an off-duty police officer who had police experience in investigating motor vehicle collisions. The Applicant was not arrested but was subsequently charged with Dangerous Driving causing death under section 249(4) of the Criminal Code.

[18] The Applicant has brought this application claiming that his section 8 Charter rights have been violated and that the following evidence obtained should be found inadmissible in his trial under section 24(2) of the Charter:

(a) The ACM data obtained at the scene of the collision on March 11, 2011;

(b) The mechanical inspection evidence done on March 15, 2011 by the police and all photographs associated with that inspection; and,

(c) The speed calculations and video created by the police by using information recorded on the ACM.

[19] It is important at the outset to specifically note that in the factual context of this case –

(i) this is not a situation of a “search incident to arrest”;
(ii) there were no “exigent circumstances” that need to be considered; and,
(iii) prior to the police entering the Applicant’s motor vehicle, Constable Downs acknowledged that he had already formed reasonable and probably grounds to charge the Applicant with Dangerous Operation of a motor vehicle.

Section 8 Charter claim

[20] Section 8 of the Charter provides that: Everyone has the right to be secure against unreasonable search and seizure.

[21] Deschamps J. for the majority in R. v. Gomboc, in paras 17‑21, summarized the applicable legal principles on a s. 8 Charter issue as follows:

17. 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.]

(…continues exactly as in the source judgment…)

[103] I find that Crown counsel has failed to satisfy the onus on the Crown to demonstrate that the warrantless search was reasonable in the circumstances.

Section 24(2) Charter claim

[104] In determining whether the admission of evidence obtained in a manner which infringes the Charter would bring the admission of justice into disrepute, the court is required to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:

(1) The seriousness of the Charter‑infringing conduct;
(2) The impact on the breach of the Charter‑protected interests of the accused; and,
(3) Society’s interest in the adjudication of the case on its merits.

(…analysis continues…)

Balancing the Factors

[123] In balancing the factors, the Grant approach requires a determination of whether the administration of justice would be brought into disrepute by the inclusion of the impugned evidence. It is the long‑term view of this notion that counts, not society’s unconsidered reaction to a particular case.

[124] I am satisfied in all the circumstances that the administration of justice would be brought into disrepute more, in the long‑term, if the evidence from the ACM is excluded rather than included. This is a motor vehicle collision that resulted in the death of the driver of the other vehicle.

[125] Society’s interest in having the charge tried on its merits, with the important, reliable and real evidence that is available being tendered, is in my opinion, very high. Balancing all of the factors, I would not exercise the court’s discretion to exclude the evidence obtained from the ACM located in the Applicant’s vehicle and the challenged related evidence on the basis of the s. 8 Charter infringement.

Seizure of the Applicant’s Motor Vehicle

[126] In my view, there was no serious issue raised but that police were authorized to seize the Applicant’s motor vehicle as evidence, pursuant to the provisions of s. 489(2) of the Criminal Code.

“Mr. Justice B.G. MacDougall”

Released: February 18, 2014