CITATION: R. v. Glenfield, 2015 ONSC 1304

COURT FILE NO.: CJ 7908

DATE: 2015-03-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEREMY GLENFIELD

D. Russell, for the Crown

P. Burstein, for the Defendant

HEARD: By written submissions

Judgement

A. Introduction

[1] This case raises the issue of whether the police at an accident scene can download the information on the Event Data Recorder (EDR) of a damaged motor vehicle of the speed, braking and accelerator pedal position of the vehicle in the five seconds before the accident without a warrant, without the consent of the driver and without their being any relation to this information and an outstanding charge. In my view, they cannot. The driver has a privacy interest in the contents of the EDR which is protected by s. 8 of the Charter. The police can only access it with the consent of the owner or on the authority of a properly issued warrant. Given the state of the law in this case, when the police downloaded the contents of the EDR of the vehicle driven by the accused, I am of the view that the evidence is admissible at his trial pursuant to s. 24(2) of the Charter.

B. The Voir Dires

[2] Jeremy Glenfield (Glenfield) is charged with impaired driving causing death, dangerous driving causing death and refusing to provide a breath sample without reasonable excuse knowing that his operation of a motor vehicle caused an accident resulting in bodily harm to another person whose death ensued. At the preliminary hearing, Glenfield elected to be tried by a court composed of a judge and jury. He was committed for trial. At the outset of the trial, with the consent of the crown, Glenfield elected to be tried by a court composed of a judge sitting without a jury. He has brought two applications to exclude evidence from his trial pursuant to s. 24(2) of the Charter based on alleged breaches of his rights guaranteed by the Charter. In this application, it is Glenfield’s position that the police violated his right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter. At the outset of the trial in Superior Court, Glenfield with the consent of the crown, re-elected to be tried by me, sitting as a Superior Court judge without a jury. He proceeded with voir dires on two Charter applications that he brought including this one. Evidence counsel wished called on the voir dires was also relevant to issues on the trial. Counsel agreed that the crown could call evidence that would be strictly relevant only on the trial as well as evidence on the voir dires. The defence could call evidence that would be relevant only on the voir dires if it wished. Regardless of the outcome of the voir dires, the evidence called by the crown would apply on the trial. After hearing all the evidence that counsel wished to put before the court on the voir dires and by the crown on the trial sufficient to put the voir dires in context, I directed that counsel deliver written submissions according to a time table. I have received the written submissions. Counsel are content that I decide this application without their making oral submissions.

C. The Facts

[3] These charges arise out of a motor vehicle accident on December 22, 2011 at about 9:12 p.m. at the intersection of Nafziger Road and Gerber Road immediately south of the Township of Wellesley in the Regional Municipality of Waterloo. Glenfield was driving a 2010 Jeep Cherokee west on Gerber Road. He was alone in the motor vehicle. Kevin Huber was driving a 2007 Dodge Caravan south on Nafziger Road. In his motor vehicle were his wife, Erna Huber, and their two sons, Derek Huber and Jeremy Huber. Derek was in the passenger seat behind his mother. Jeremy was in the passenger seat behind his father. Nafiziger Road was a through road at the intersection. Gerber Road was governed by stop signs. Glenfield failed to stop his motor vehicle at the intersection. It struck the Huber vehicle on the driver’s side passenger door. The posted speed limit at the intersection for southbound traffic is 70 km per hour and for westbound traffic is 80 km per hour. Both Kevin and Erna Huber estimated that Kevin Huber was driving at about the speed limit. The area of impact was in the southbound lane on Nafziger Road to the west of the centre lane.

[4] As Glenfield approached the intersection of Nafziger Road with Gerber Road travelling in a westerly direction, he crossed a bridge over a creek at a distance of about 135 meters from the intersection. He then proceeded up a hill to the intersection. He passed signs posted on the north side of Gerber warning of the approaching intersection. The elevation from the bridge to the intersection was about eight metres and the approximate grade was about 8 percent. There was a hydro substation enclosed by a fence on the north east corner of Nafziger and Gerber roads. The hill and the substation obscured a view of southbound traffic on Nafziger from westbound traffic on Gerber.

[5] There is a woodworking shop in a parking lot on the southwest corner of the intersection. The impact of the collision caused the Huber vehicle to spin counter clockwise in a full circle. It came to rest in the parking lot facing southwest. The Glenfield vehicle proceeded through the intersection. The impact of the collision caused it to spin counter clockwise in a partial circle. It came to rest facing east on the south shoulder of Gerber east of Nafziger adjacent to the parking lot against the supporting wire of a hydro pole.

[6] Jeremy Huber died the following day as a result of injuries that he sustained in the accident. He was 11 years of age. Both vehicles sustained extensive damage making them inoperable. The collision activated the airbags on the jeep.

[7] At the time of the accident it was snowing lightly. The roads were wet. Witnesses who heard the crash, police officers and paramedics attended at the scene of the accident shortly after it happened. There was evidence that Glenfield had been drinking at a residence about 20 minutes before the accident. Witnesses at the scene smelled alcohol on Glenfield’s breath. Constable Foster arrived at the scene at 9:22 p.m. He administered a roadside breath test on Glenfield at 9:28 p.m. He failed the test. The officer arrested him for over 80 at 9:35 p.m. and placed him in the back seat of his cruiser. Foster made a demand on Glenfield that he accompany him to the police station for the purpose of providing a further sample of his breath. Foster left the scene of the accident in his police cruiser with Glenfield as 9:58 p.m. They arrived at the police station at 10:23 p.m. At the police station, the police charged Glenfield with impaired driving causing bodily harm at 11:49 p.m., dangerous driving causing bodily harm at 12:06 p.m. and failing to provide a sample of his breath at 12:28 p.m. Upon the death of Jeremy Huber the following day, the police charged Glenfield with the charges before the court.

[8] Glenfield was the sales manager of Waterloo Dodge Chrysler Limited which was the owner of the 2010 Jeep that he was driving. Trent Flack worked for the dealership for four years immediately before he left in September 2012 to take a position with another dealership. During this time, he was the finance manager. Glenfield was the sales manager. They worked closely together. They were friends. They had a good working relationship. Both Mr. Flack and Glenfield drove company cars. They would ultimately be sold. However, as long as they were driving them, they treated the cars as their personal vehicles. When they were parked at the dealership a salesperson would not show a customer the vehicle for sale without their permission. They took the vehicles home at night. They left personal possessions in them. For tax purposes, the vehicles were treated as a taxable benefit. Glenfield was driving the vehicle at the time of the collision with his employer’s consent.

[9] In the jeep was an Event Data Recorder (EDR) which was part of the Airbag Control Module (ACM). The impact of the collision caused the ACM to deploy the airbags.

[10] Police officers from Waterloo Regional Police Force (WRPF) arrived at the scene. Sergeant Sims arrived at the scene at 10:21 p.m. Constable Stotts arrived at the scene at 10:28 p.m. Sergeant Sims assigned Constable Stotts to gather “roadway evidence.” Stotts was unaware of the identity of the owner of the jeep or if the police had arrested him on any charges. On his own initiative, for the purpose of downloading the information on the EDR, he entered the jeep. He gave no consideration to obtaining the consent of the owner or to obtaining a warrant. He testified that it was necessary to download the information from the EDR at the scene to avoid the EDR being activated by an event triggered by the jostling created by towing the vehicle from the scene. This would have the result of erasing the information on the EDR of the events immediately prior to the accident. Constable Adams testified that this could be avoided by cutting the vehicle’s power to the EDR.

[11] To gain access to the EDR through the ACM, Stotts forcibly removed a cover in the front seat area of the jeep at the console which exposed the ACM. He made no attempt to remove the cover by taking out the screws that held it in place. With electronic cords, he connected a Crash Data Retrieval (CDR) tool to the ACM and to a computer. The computer had a software program which permitted it to access the information in the EDR from the ACM. This information contained data of the speed, brake activation and accelerator depression of the jeep for every 10th of a second in the five seconds preceding the accident. The actual download took seconds. It took place at 11:27 p.m. as appears from the EDR printout. It is this information that Glenfield seeks to have excluded from the trial. Stotts testified that he would have also downloaded information from the EDR in the Dodge Caravan but his CDR tool was not compatible with the EDR in the Dodge Caravan.

[12] In summary the EDR of the Jeep yielded information about the Glenfield vehicle in the 5 seconds before the accident as follows:

Time in Seconds to Collision

Speed in km per hour

Distance in metres from Area of Impact

5

106

134

4

103

105

3

99

77

2

94

50

1.5

92

37

1.2

91

29

0.7

88

17

0.5

87

12

0.3

86

7

0.1

86

2

Time (in Seconds) Before the Accident

Accelerator Depression

(Percentage Full)

5 to 0.8

0.0

0.7

2.0

0.6

7.5

0.5

11.4

0.4

24.8

0.3

37.8

0.2

32.3

0.1

0.0

The accelerator input was 37.8 % of full throttle at 0.3 seconds before impact and 0 % at 0.1 seconds before impact. This data indicates that Glenfield accelerated up the hill west of the intersection immediately before the accident. Glenfield did not activate his brakes in the 5 seconds before the accident.

[13] Kevin J. McClafferty is an expert motor vehicle collision analyst. The crown filed his report dated July 16, 2013. The report analyzes the accident based on information provided to him by the crown including witness statements, police statements, notes of police officers of their measurements and observations at the scene and the EDR data. Based on this information he came to the following conclusion:

Aggressive driving combined with a long episode of inattention may explain why Mr. Glenfield ran the stop sign at high speed and caused the fatal crash on the cold wet winter night.

[14] On February 18, 2014, Justice MacDougall released a decision in R.v. Hamilton (infra) in which he held that the owner of a motor vehicle had a privacy interest in an EDR installed in his vehicle. The police must obtain a warrant to have the authority to download information from an EDR. On legal advice first from the lawyer for police and then from the crown, after Hamilton was released, Constable Adams drafted a template of an information to obtain a warrant for the downloading of an EDR. Prior to this, he testified that the police believed that they had the authority to download information on an EDR pursuant to their power to conduct mechanical inspections of motor vehicles and to investigate collisions provided by the Highway Traffic Act ss. 82.2 and 199.3. Where someone was arrested at the scene, their authority would derive from the power to search incident to arrest.

[15] Sergeant Sims was in charge of the investigation at the scene. He testified that the policy of the WRPF at the time was to download information from an EDR where the police thought that this was necessary at the scene without applying for a warrant. It was only if a vehicle was towed from the scene to a towing yard that the police would apply for a warrant to download information from an EDR later where they decided that this was necessary. He knew that Constable Stotts would download information from the EDRs of damaged vehicles if he was able to do so. He did not direct him to do this.

[16] Glenfield has brought an application at his trial to exclude from evidence information obtained by the police from the EDR in the Jeep. It his position that the police in obtaining this information violated his right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter and that it should be excluded from his trial pursuant to s. 24(2) of the Charter.

D. Analysis

1. Whether The Police Violated Glenfield’s Right Under S. 8 Of The Charter To Be Secure Against Unreasonable Search And Seizure

a. Search and Seizure

[17] Section 8 of the Charter states the following:

8. Everyone has the right to be secure against unreasonable search or seizure.

Glenfield submits that the police, in obtaining the information resulting from the downloading of the EDR, violated his right to be secure against search or seizure guaranteed by s. 8 of the Charter. He submits that this evidence should be excluded from the trial because its admission would bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter.

[18] The police obtained this information by Constable Stotts entering the Jeep at the scene of the accident, removing the console cover in the front seat, connecting an electric cord to the exposed ACM, connecting the cord to a computer through a CDR tool and activating the computer. The actual downloading took seconds. These activities by Constable Stotts constituted a search and seizure. This was done without the consent of the accused or the owner of the Jeep and without a warrant. The search was a warrantless search. In R. v. Collins , 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 the Supreme Court of Canada in the judgment of Chief Justice Lamer stated the following:

[22] …once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

[23] A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

b. Privacy Interest

[19] An accused will only be protected by s. 8 of the Charter if he has a privacy interest in the subject of the search. In Hunter v. Southam Inc., 1984 CanLII 33; [1984] 2 S.C.R. 145, the Supreme Court of Canada in the judgment of Justice Dickson (as he then was) held that legislation which gave the Director of Investigation and Research of the Combines Investigation Branch the power to search and seize documents of a business without judicial approval violated s. 8 of the Charter. He set out principles to guide trial judges in the application of s. 8 to the facts of a given case. He stated the following:

[20] 15. … the crux of this case is the meaning to be given to the term "unreasonable" in the s. 8 guarantee of freedom from unreasonable search or seizure. …

19. I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms; it is not in itself an authorization for governmental action….

20. … 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.

21. … That purpose is, as I have said, to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.

22. A requirement of prior authorization, usually in the form of a valid warrant, has been a consistent prerequisite for a valid search and seizure both at common law and under most statutes. Such a requirement puts the onus on the state to demonstrate the superiority of its interest to that of the individual. As such it accords with the apparent intention of the Charter to prefer, where feasible, the right of the individual to be free from state interference to the interests of the state in advancing its purposes through such interference.

c. Reasonable Expectation of Privacy

[21] As Hunter makes clear a person will only be entitled to the protection of S. 8 of the Charter if he has a reasonable expectation of privacy in the subject of the search. The Supreme Court of Canada has examined this issue in a number of cases in divergent fact situations. In some cases, the Supreme Court of Canada found that the accused had no reasonable expectation of privacy (R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128 - drugs in his girlfriend’s apartment; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 - computer records showing electricity consumption; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579 - garbage put out at the roadside for collection; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 - heat emanating from a house detected by an electronic apparatus). In other cases, the Supreme Court has found that the accused did have a reasonable expectation of privacy (R. v. Belnavis 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341 - driver of a car in its contents; R. v. A.M. [ 2008 SCC 19, 2008] 1 S.C.R. 569 - students at a high school in the contents of their back packs from a police dog sniffing for drugs; R. v. Kang-Brown, 2008 SCC 18, [2008] S.C.J. No. 18 - a traveller at a bus station in the contents of his luggage from a police dog sniffing for drugs; R. v. Cole, 2012 SCC 53, 2012 SCJ NO. 53; R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253; R. v. Tellus, 2013 SCC 16, [2013] 2 S.C.R. 3; R. v. Vu, [2013] 2 S.D.R. 657 and R. v. Spencer, 2014 SCC 43, [2014] S.C.J. No. 43 - a computer used for personal activities). The Supreme Court of Canada has consistently held that whether the accused had a reasonable expectation of privacy in the subject of the search must be determined in the “totality of the circumstances” (Edwards, para. 45(5), Tessling para. 31). An accused, to be entitled to the protection of s. 8 of the Charter, must have both a subjective and objective expectation of privacy in the subject matter of the search. (Tessling, para. 32)

d. Personal, Territorial and Informational Privacy Interests

[22] In R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, a utility company, at the request of the police, installed a Digital Recording Ammeter (DRA) in a residence where the police suspected a marijuana grow operation was taking place. Based on the information of electricity consumption provided by the DRA, the police obtained a warrant for the search of the house where they did find a marijuana grow operation being conducted by the accused. The Supreme Court of Canada, in the judgment of Justice Deschamps, held that the accused did not have a privacy interest in the information disclosed by the DRA. The privacy interest claimed by the accused consisted of territorial and informational privacy. Justice Deschamps, building on the decision of Justice Binnie in Tessling, stated the following:

[19] In Tessling, Binnie J. wrote that because privacy is a varied and wide-ranging concept, [page230] 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 individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others" (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.

e. Subjective Expectation of Privacy

[23] In R. v. Spencer 2014 SCC 43, [2014] S.C.J. No. 43 and R. v. Cole 2012 SCC 53, [2012] 3 S.C.R. 34, the accused was charged with possession of child pornography which the police found on his computer. In R. v. Patrick 2009 SCC 17, [2009] 1 S.C.R. 579, the accused left garbage from his home at the curbside. The police found information in the garbage to obtain a search warrant for his home where they found drugs. In each case in a voir dire to determine the admissibility of the evidence where the accused alleged that the police had breached his rights guaranteed by s. 8 of the Charter the accused did not testify. Notwithstanding this, the Supreme Court of Canada inferred that he had a subjective expectation of privacy in the subject of the search. (Cole para. 43 and Spencer para. 19) In Patrick Justice Binnie stated the following:

[37] At the subjective stage of the test, I do not think "reasonableness" is the issue. The question is whether the appellant had, or is presumed to have had, an expectation of privacy in the information content of the bags. This is not a high hurdle. As mentioned, in the case of information about activities taking place in the home, such an expectation is presumed in the appellant's favour. It is possible that the appellant (who did not testify on this point) may never have ceased to have a subjective expectation, reasonable or not. The "reasonableness" of an individual's belief in the totality of the circumstances of a particular case is to be tested at the second objective branch of the privacy analysis.

f. Objective Expectation of Privacy

[24] In Edwards (para. 45)[i] Tessling (para. 32)[ii] and Patrick (para. 26, 27)[iii] the Supreme Court of Canada set out an analytic framework to apply to the facts for the purpose of determining whether the accused has a reasonable expectation of privacy in the subject matter of the search. Of relevance are the factors that these judgments considered to determine if an accused had an objective reasonable expectation of privacy in the subject matter of the search.

g. Hamilton, Fedan and Xinos

R. v. Hamilton [2014] O.J. No. 747

[25] The accused was charged with dangerous driving causing death. The accused was an off duty police officer. On March, 11 2011, he was driving his 2007 GMC Sierra pickup truck. He was involved in a collision at an intersection with a Saturn station wagon. The road on which the accused was travelling was governed by stop signs at the intersection. The driver of the Saturn died at the scene of the accident. At the scene, Constable Downs downloaded the information on the ACM of both vehicles. The ACM in that case would appear to perform the identical function to the EDR in this case. It provided information on the 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 in half-second increments for 2 ½ seconds prior to airbag deployment which would have occurred at the point of impact. Constable Downs testified that the information that he obtained from the ACM confirmed his opinion that the accused had not stopped at the intersection and had accelerated in the seconds leading up to the collision.

[26] The accused brought an application during his trial to exclude the evidence of the information from the ACM based on alleged breach of his s. 8 rights under the Charter. The accused testified on the voir dire that he knew of the stored information on the ACM as a result of his work as a police officer in investigating motor vehicle collisions. He testified that he believed that the information belonged to him. Justice MacDougall, who was the trial judge, found that he had a subjective expectation of privacy in the information. The issue was whether his subjective expectation was objectively reasonable. He found that it was. To examine this he applied an analytical framework which he modified from the factors set out in Edwards and Patrick. I summarize his analysis under the factors that he identified.

1. Did the police trespass on the Applicant's property, and, if so, what is the impact of such a finding on the privacy analysis?

[27] The crown argued that the accused’s motor vehicle was an instrument for the commission of an offence. It was a thing as opposed to a place. Its use was highly regulated by the Highway Traffic Act. It was, in the opinion of Constable Downs, a write-off. Justice MacDougall rejected this argument. He referred to R. v. Belnavis (supra). In that case, the police searched a car which they had validly stopped for stolen goods. The trial judge, the Court of Appeal and the Supreme Court of Canada all held that the driver of the vehicle had a reasonable expectation of privacy in the vehicle. The police violated the accused’s privacy rights guaranteed by s. 8 of the Charter by searching the vehicle without her consent and without a warrant. The dispute was over the admissibility of the evidence pursuant to s. 24(2) of the Charter. He cited a passage from Justice Doherty’s decision in the Court of Appeal as follows:

[33] I am satisfied, on a consideration of the totality of the circumstances, that Ms. Belnavis established a reasonable expectation of privacy in relation to the Nissan. She was present when the search occurred, and had possession of and control over the vehicle. The evidence compels the conclusion that Ms. Belnavis had the owner's consent to operate it. As such, she could control access to the vehicle and exclude others from the vehicle. Control of access is central to the privacy concept: R. v. Edwards, supra, at pp. 147-48 S.C.R., pp. 151-52 C.C.C.; Rawlings v. Kentucky, 100 S.Ct. 2556 (1980), per Blackmun J. (concurring) at p. 2565. I am also satisfied, despite the reduced expectation of privacy which attaches to a motor vehicle (R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at p. 241, 24 C.R. (4th) 1 at p. 18), that it is reasonable for a person who is driving a motor vehicle with the owner's consent to expect that agents of the state cannot invade that vehicle absent a demonstrable state interest which is sufficiently compelling to override the driver's entitlement to maintain the privacy of the vehicle. To deny Ms. Belnavis a privacy interest in the vehicle would, in my view, "... see the amount of privacy and freedom remaining to citizens diminished to a compass inconsistent with the aims of a free and open society": R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36 at p. 46, 60 C.C.C. (3d) 460 at p. 478, per La Forest J.8

[28] He also cited the decisions of R. v. Jones 2011 ONCA 362 in the Court of Appeal and R. v. Vu (supra) in the Supreme Court of Canada, which held that the owner of a computer had a right of privacy in a computer which required the police to get a separate warrant where they found the owner’s computer in a residence pursuant to a valid warrant.

[29] He stated the following:

[41] Even though in the present case, the police are not looking for suspected stolen property, guns or contraband, for instance, but for recorded data pertaining to speed, braking and acceleration of the vehicle, that data is stored inside the Applicant's vehicle, a place where there is recognized expectation of privacy, admittedly a reduced expectation. That expectation of privacy is not somehow "lost" because the vehicle had been damaged in the collision.

He held that Constable Downs committed a trespass when he entered Hamilton’s vehicle to download the information on the ACM.

2. Is the information the police obtained, information over which the individual ought to be granted control beyond the reach of the state absent judicial authorization?

[30] Justice MacDougall was of the view that the information from the ACM revealed much about Hamilton’s driving which society would expect should be kept out of the hands of the police absent a warrant.

3. Was the informational content of the subject matter in public view?

[31] He referred to R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, where the police installed a tracking device in a motor vehicle. The Supreme Court of Canada in the judgment of Justice LaForest found that there was a “qualitative difference” between a person’s carrying on activities in public view and having their every move recorded. (Hamilton, para. 47; Wise, para. 46)

4. Was the police technique intrusive in relation to the privacy interest?

[32] He answered this in the affirmative. He noted the reasonable expectation of privacy in a motor vehicle, albeit reduced from what was expected in a home. There were no exigent circumstances and the search was not incident to arrest. He compared the circumstances to Wise where the Supreme Court of Canada found that the police trespassed by entering the accused’s vehicle and to Tessling in contrast where the Supreme Court of Canada found that the accused did not have a reasonable expectation of privacy in the “mundane” information of heat escaping from his residence. (Hamilton, para. 46; Tessling, para. 55)

5. Was the use of this evidence gathering technique itself objectively unreasonable?

[33] Balancing the sophisticated information gathering technique used by Constable Downs against the state’s interest in crime detection he found the evidence gathering technique to be objectively unreasonable.

6. Did the informational content expose any intimate details of the Applicant's lifestyle, or information of a biographic nature?

[34] He answered this question in the negative. He noted the passage from Justice Binnie’s decision in R. v. A.M, (supra) that a person will not fail to have a reasonable expectation of privacy in all information that fails to meet the “biographical core” test. A.M., para. 68; Hamilton, para. 73)

[35] He came to the following conclusion:

[75] After considering and weighing the above factors in the totality of the circumstances in this case, I am satisfied that the Applicant had a reasonable expectation of privacy with respect to the interior of his vehicle and the data contained in the vehicle's ACM located by the vehicle's manufacturer under the flooring which was under the driver's seat of the vehicle.

[36] Justice MacDougall then applied the test in Collins to determine whether the crown had established that the warrantless search was reasonable. I summarize his analysis as follows:

1. Was the search authorized by law?

[37] He rejected the argument of the crown that the police were authorized to enter the vehicle by sections of the Highway Traffic Act which gave them the right to inspect a vehicle for defects. This was not the purpose for the police entering the vehicle. He had already rejected this argument in considering the crown’s argument that the accused was not entitled to the protection of s. 8 over the damaged vehicle because it was a “thing” as opposed to a “place”. He also rejected the application of the Waterfield/Dedman test. It holds that where the police are acting in the course of their duty and their actions constitute a justifiable interference with individual liberty that they are lawful. He again referred to Jones and Vu which held that the police were required to obtain a warrant to search a computer.

2. Was the law itself reasonable?

[38] The accused did not challenge the law.

3. Was the manner in which the search was carried out unreasonable?

[39] He answered this question in the affirmative given that the police damaged the vehicle to obtain the information that they wanted. In conclusion, at para. 33 he found that the police had not demonstrated that the search was reasonable.

R. v. Fedan,[2014] B.C.J. No. 2284

[40] The accused was charged with impaired driving causing death. He was the driver of a motor vehicle that was involved in a single car accident in which two passengers were killed. A police officer downloaded a sensory diagnostic module (SDM) at the scene without a warrant or the consent of the accused. It performed the same function as an EDR in this case. The accused brought an application mid trial for the exclusion of this evidence. Justice Kloegman held that the reasoning in Hamilton did not apply. He distinguished Hamilton on the facts. In Hamilton the accused was a police officer who was aware of the EDR in his vehicle and claimed a privacy interest in it. He held that the accused had failed to establish that he had a subjective expectation of privacy in the information in the SDM. He also held that the search of a SDM in a motor vehicle that had been destroyed in an accident was not analogous to the search of a computer in a home where the police had a valid warrant to search the home as in Jones and Vu. He held that the accused had failed to demonstrate a reasonable expectation of privacy in the information in the SDM that was protected by s. 8.

People v. Xinos, (2011) 192 Cal. App. 637

[41] This case is a judgment of Justice Elia of the 6th district of the Court of Appeals of California. Two other judges concurred in the decision. On May 6, 2006, the accused struck and killed a pedestrian at an intersection with her motor vehicle. She left the scene of the accident. She was charged with a number of offences including failing to stop at the scene of an accident resulting in the death of another person and driving under the influence of alcohol and causing injury. The police seized the accused’s vehicle. On May 11, 2007, one year after the accident, the police downloaded the information on the sensing diagnostic module (SDM) which would appear to be the same as the EDR in this case. Although the airbags were not deployed in the accident the SDM revealed information about the speed and braking of the motor vehicle at the time of the accident. The accused brought a motion to suppress the evidence at the trial. The application was denied. The trial court ruled that the accused’s motor vehicle “was an instrumentality of the crime of vehicular manslaughter as well as hit-and-run” (p.14) and that the search fell "within the automobile exception to the warrant requirement because the police officers had probable cause to believe that evidence pertaining to the crime was contained in the SDM." (p. 14-15).

[42] The California Appeals Court disagreed. Similar to our law regarding warrantless searches Justice Elia stated the following:

"The Fourth Amendment says that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' U.S. Const., Amdt. 4. Its central requirement' is one of reasonableness. See Texas v. Brown, 460 U.S. 730, 739 [75 L.Ed.2d 502, 103 S.Ct. 1535] (1983)." (Illinois v. McArthur (2001) 531 U.S. 326, 330 [148 L.Ed.2d 838, 121 S.Ct. 946].) "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 88 S.Ct. 507], fn. omitted.) The prosecution bears the burden of demonstrating a legal justification for a warrantless search. (People v. Johnson (2006) 38 Cal.4th 717, 723 [42 Cal.Rptr.3d 887, 133 P.3d 1044].) (p. 16)

[43] The court considered whether the accused had a subjective expectation of privacy in the vehicle and the SDM that was objectively reasonable. The court rejected the argument that the accused had no reasonable expectation of privacy in the information in the SDM because it was being exposed to public view. The court stated the following:

Here, defendant's own vehicle was internally producing data for its safe operation. That exceedingly precise data was not being exposed to the public or being conveyed to any other person. (p. 21-22)

It also rejected the argument that the police were authorized to seize the information on the SDM as part of a safety inspection. In finding that the accused had a reasonable expectation of privacy in the information contained in the SDM, the court stated the following:

(12) We do not accept the Attorney General's argument that defendant had no reasonable expectation of privacy in the data contained in his vehicle's SDM. The precision data recorded by the SDM was generated by his own vehicle for its systems operations. While a person's driving on public roads is observable, that highly precise, digital data is not being exposed to public view or being conveyed to anyone else. But we do not agree with defendant that a manufacturer-installed SDM is a "closed container" separate from the vehicle itself. It is clearly an internal component of the vehicle itself, which is protected by the Fourth Amendment. We conclude that a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's SDM.

[44] The appeals court rejected the argument of the People that the admission of the evidence was “harmless error.” The court ordered a new trial.

h. Discussion

[45] In Tessling Justice Binnie stated that “privacy is a protean concept, and the difficult issue is where the "reasonableness" line should be drawn.” (para. 25). After referring to the Watergate burglar who turned up the radio when he was speaking to guard against the possibility that his conversation might be “bugged” Justice Binnie said the following:

[42] … Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of privacy and thereby forfeits the protection of s. 8. Expectation of privacy is a normative rather than a descriptive standard.

[46] I agree with the reasoning of Justice MacDougall in Hamilton for the reasons that he states that the owner of the vehicle damaged in a collision has a reasonable expectation of privacy in the contents of the EDR. Mr. Russell submits that that the case at bar can be distinguished from Hamilton because in this case, unlike Hamilton, the accused did not testify and that there is no evidence that he has a subjective expectation of privacy in the information on the EDR. In Spencer, Cole and Vu, the Supreme Court of Canada found that the accused had a subjective expectation of privacy in the subject matter of the search notwithstanding that he did not testify. Mr. Burstein in his factum at para. 29 points out the following:

There are no reported cases where, simply because of the absence of testimony from the accused, a court was willing to reject a s. 8 challenge to the warrantless search of property on the basis of a putative absence of subjective privacy expectations. So long as there is a reasonable expectation of privacy, in the absence of evidence demonstrating a lack of a similar subjective expectation, courts readily accept that the accused had such an expectation.

i. Application Of Factors In Hamilton And Duarte To This Case

[47] I find that the reasoning of Justice MacDougall in Hamilton of their being an objective expectation of privacy by the driver and owner of a motor vehicle damaged in a collision of the interior of the vehicle including the data on the EDR or ACM in that case to be persuasive. I refer again in summary form to the factors that Justice MacDougall applied against the facts in Hamilton which I apply to this case.

1. Trespass

[48] Foster in entering Glenfield’s vehicle committed a trespass. He did not have a warrant and he did not have Glenfield’s consent.

2. Information Beyond the Reach of the State

[49] The information accessed from the EDR revealed precise details of Glenfield’s driving. This is private information to which the police should not automatically have access.

3, 4 and 5. Public View, intrusive technique and objectively unreasonable

[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 CanLII 150 (SCC), [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:

[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 and that interception of private communications stands to afford evidence of the offence.

Further quotes in which Justice La Forest develops this concept are attached.[iv]

[51] The analogy is not an exact one. However, the implications of what has happened here should be considered as Justice La Forest did in Duarte. There is no evidence that Foster knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.

6. Biographic Core Test

[52] The case law makes clear that this is an important but not a necessary aspect of the analysis to determine an accused has a privacy interest in the subject matter of a search (see Stuart Hargreaves, R. v. Gomboc: Considering the Proper Role of the "Biographic Core" in a Section 8 Informational Privacy Analysis, 2012 59 CLQ 86).

j. Conclusion

[53] On the facts of this case the reasoning of Justice MacDougall also applies to support a finding that the crown has not met the test to justify a warrantless search in Collins – a search authorized by law, a reasonable search and a search carried out in a reasonable manner.

[54] I find that Glenfield had a reasonable expectation of both territorial and informational privacy in the interior of the Jeep. The actions of Constable Foster in entering the Jeep, removing the console and downloading the information on the EDR constituted a warrantless search and seizure. The crown has failed to demonstrate that it was reasonable. The police violated Glenfield’s right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter.

2. Should the Evidence Be Excluded Under Section 24(2) Of The Charter

[55] Section 24 of the Charter states the following:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) 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.

[56] Having found that the police obtained the information from the EDR in a manner that denied Glenfield’s right guaranteed by s. 8 of the Charter to be secure against unreasonable search and seizure I must now determine if Glenfield has established that, “having regard to all the circumstances, the admission of it in the proceedings (trial) would bring the administration of justice into disrepute.”

a. R. v. Clayton and R. v. Fearon

[57] In R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725; reversing (2005), 2005 CanLII 16569 (ON CA), 196 O.A.C. 16, a person in Toronto who identified himself made a 911 call to the police in which he reported that four black men outside a strip club were armed with handguns. He said that they were about to leave the club in cars which he described. Reacting to this call, the police set up a roadblock at the end of a lane leading out of the club. They stopped the first car which did not match the description given by the 911 caller leaving the club. They searched two black men in the car and found loaded handguns in their possession. The police charged them with possession of loaded prohibited weapons. Justice Durno, at trial, found that although the police setting up the roadblock did not violate the Charter their subsequent detention and search of the two occupants of the vehicle did violate their Charter rights pursuant to s. 8 and 9 to be secure against arbitrary detention and unreasonable search. However, he admitted the evidence under s. 24(2) of the Charter. The Court of Appeal, in the judgement of Justice Doherty, held that both the roadblock and the subsequent search of the occupants violated the Charter but would have excluded the evidence under s. 24(2). The Supreme Court of Canada held that the police did not violate the Charter rights of the accused. The court held that even if the police had violated the Charter rights of the accused that the evidence should have been properly admitted under s. 24(2).

[58] Justice Doherty, in his analysis under s. 24(2), emphasized the failure of the Toronto police to train properly their officers on the limits of their power under the Charter. He stated the following:

[83] … the evidence reveals that the officers who set up the roadblock stop were sadly ignorant of the limits of their ancillary powers or the need to balance the demands of their duties against the interference with individual liberties caused by their actions. Furthermore, and in my view this significantly aggravates the seriousness of the breach, the evidence indicates that this ignorance is institutional and is a direct consequence of the training these officers received, or more to the point, the inadequacy of the training they received.

[90] … Police training that leaves officers in the field unequipped to engage in the balancing process required by the ancillary power doctrine invites police officers to ignore individual rights whenever those rights get in the way of the execution of police duties. If the rights guaranteed by the Charter are to have real meaning and shape the interaction between the police and individuals, police forces must take those rights seriously. Officers must be trained to perform their duties in a manner that is consistent with those rights.

[59] In the Supreme Court of Canada, the majority judgment of Justice Abella, concurred in by five other judges, held that the lack of police training was not relevant to the s. 24(2) analysis. She stated the following:

[51] In their testimony, the police did not expressly advert to the factors relevant to the exercise of their ancillary powers or explain the way they balanced the pros and cons of deciding whether to set up the perimeter surveillance. What is under constitutional scrutiny is the police conduct, not police training. The officers' good faith in carrying out their duties is the issue in this case. To go further and examine the training behind such conduct would risk transforming the inquiry into a protracted pedagogical review of marginal relevance to whether the police conduct itself represented a breach of sufficient severity to warrant excluding the evidence.

[60] In the judgment of Justice Binnie, concurred in by two other judges, he stated the following:

[129] As stated, Doherty J.A. made an important point about the potential contribution of inadequate training to excessive police conduct. A Charter violation caused by systemic failure would raise greater concerns for the administration of justice than an isolated act of a single misguided police officer. However, given my conclusion that the roadblock (i.e., detention) was valid, I do not think the adequacy of police training emerges as a s. 24(2) consideration in this case.

[61] In R. v. Fearon, 2014 SCC 77 (released December 11, 2014), the police arrested two men for armed robbery. They discovered a cell phone in a pat down search of one of them. They searched the cell phone at the time of the arrest and again two hours later. They discovered a text message which said “we did it” and a photograph of a gun which the trial judge found was the gun used in the robbery. After a case came to the attention of the police six months later which suggested that they needed a search warrant to search the cell phone they obtained a warrant. The trial judge held that the police search of the cell phone was a valid search incident to arrest. The Court of Appeal agreed. The Supreme Court of Canada, in the majority judgment of Justice Cromwell supported by three other judges, held that the police search violated the s. 8 rights of the accused but the evidence found by the police on the phone was properly admitted in the trial.

[62] Justice Cromwell held that the police have the power to search a cell phone located on a person validly arrested provided that the search was for the purposes of officer safety and for the discovery of evidence related to the charge and that they made careful notes of what they had searched. He found that the search violated the s. 8 rights of the accused but that the evidence was admissible under s. 24(2). He applied the Grant factors. He found that the police conduct in performing the search without a warrant was not serious. There was case law at the time that supported the right of the police to search a cell phone incident to arrest.

[63] Justice Cromwell stated the following:

[95] In my view, the first factor favours admission of the evidence. There is not here even a whiff of the sort of indifference on the part of the police to the suspect’s rights that requires a court to disassociate itself from that conduct. The police simply did something that they believed on reasonable grounds to be lawful and were proven wrong, after the fact, by developments in the jurisprudence. That is an honest mistake, reasonably made, not state misconduct that requires exclusion of evidence.

The impact on the Charter protected rights of the accused of the search without a warrant was minimal. There were reasonable grounds to conduct the search which was confirmed by the unchallenged search warrant which the police later obtained. The evidence being reliable supported its admission on the basis of society’s interest in the adjudication of the case on its merits. All three of the Grant factors supported admission.

[64] Justice Karakatsanis commenced her dissenting judgement with a ringing statement of the extent of the privacy interest that people have in their computers as follows:

[100] We live in a time of profound technological change and innovation. Developments in mobile communications and computing technology have revolutionized our daily lives. Individuals can, while walking down the street, converse with family on the other side of the world, browse vast stores of human knowledge and information over the Internet, or share a video, photograph or comment about their experiences with a legion of friends and followers.

[101] The devices which give us this freedom also generate immense stores of data about our movements and our lives. Ever-improving GPS technology even allows these devices to track the locations of their owners. Private digital devices record not only our core biographical information but our conversations, photos, browsing interests, purchase records, and leisure pursuits. Our digital footprint is often enough to reconstruct the events of our lives, our relationships with others, our likes and dislikes, our fears, hopes, opinions, beliefs and ideas. Our digital devices are windows to our inner private lives.

[102] Therefore, as technology changes, our law must also evolve so that modern mobile devices do not become the telescreens of George Orwell’s 1984. In this appeal, we are asked to decide when police officers are entitled to search a mobile phone found in the possession or vicinity of an accused person upon arrest. Because this new technology poses unique threats to peoples’ privacy, we must turn to first principles to determine the appropriate response.

[103] An individual’s right to a private sphere is a hallmark of our free and democratic society. This Court has recognized that privacy is essential to human dignity, to democracy, and to self-determination. Section 8 of the Canadian Charter of Rights and Freedoms protects the right to be free from unreasonable search and seizure. In defining the contours of a reasonable search, the law balances legitimate state interests, including safety and securing evidence in law enforcement, with the privacy interests of individuals. This balance generally requires judicial pre-authorization for a search, and a warrantless search is prima facie unreasonable.

[65] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, released on March 19, 2010 the accused was charged with possession of child pornography. The police seized the computer pursuant to a warrant which was deficient. In the judgment of Justice Fish, the Supreme Court of Canada held that the evidence from the computer which resulted in the accused’s conviction should have been excluded from his trial. Since there was no other evidence against the accused which was legally admissible the court acquitted the accused. At the outset of his reasons Justice Fish commented on the nature of computers. He stated the following:

1. This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure. And it relates, more particularly, to the search and seizure of personal computers.

2. It is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy [page263] than the search and seizure of a personal computer.

3. First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet -- generally by design, but sometimes by accident.

4. That is precisely the kind of search that was authorized in this case. And it was authorized on the strength of an Information to Obtain a Search Warrant ("ITO") that was carelessly drafted, materially misleading, and factually incomplete….

[66] Regarding the significance of the decision of the Supreme Court of Canada in Morelli Justice Karakatsanis in Fearon stated the following:

[253] That decision marked a sea change in the law’s approach to digital devices by making it clear that individuals have a very strong privacy interest in their computers (and, by extension, similar devices).

Applying the Grant factors she would have excluded the evidence. She accepted the finding of the trial judge that the police acted in good faith. Given the strong privacy interest of the accused in the contents of his cell phone, the impact of the admission of the evidence on the Charter protected interests of the accused was very great. The interest of society in an adjudication on the merits had little relevance because exclusion of the evidence would not “gut” the crown’s case as there was other evidence on which the crown could rely.

b. The Grant Factors

[67] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada in the majority judgment of Chief Justice McLachlin and Justice Charron set out the factors which a trial court must consider in determining whether an accused has established that evidence obtained by the police in a manner that denied his rights guaranteed by the Charter should be excluded from his trial because its admission would bring the administration into disrepute. The Supreme Court had previously set out these factors in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607.

[68] In Grant the Supreme Court revised these factors. The majority judgment stated the following:

[61] In Collins, the Court (per Lamer J., as he then was) proceeded by grouping the factors to be considered under s. 24(2) into three categories: (1) whether the evidence will undermine the fairness of the trial by effectively conscripting the accused against himself or herself; (2) the seriousness of the Charter breach; and (3) the effect of excluding the evidence on the long-term repute of the administration of justice.

Stillman defined evidence as conscriptive evidence where "an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples" (para. 80 of Stillman; para. 63 of Grant). Stillman held that conscriptive evidence must be almost automatically excluded under s. 24(2). This seemed to conflict with the requirement in s. 24(2) that the court consider “all the circumstances” before excluding relevant evidence (para. 64). The majority stated the following:

[68] The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. … The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

[70] … s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must 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 state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[69] Regarding the 3 factors the majority judgment stated the following:

(a) Seriousness of the Charter-Infringing State Conduct

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. …

[74] State 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.

(b) Impact on the Charter-Protected Interests of the Accused

[76] … The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

(c) Society's Interest in Adjudication on the Merits

[82] … The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence ex-tracts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at pa-ra. 47, per Doherty J.A.

[83] … the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[84] … In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

Regarding types of evidence the majority judgment stated the following:

Non-bodily Physical Evidence

[70] This type of evidence will most often be considered in the context of its being obtained in the context of a violation of the accused’s right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter. Factors such as the strength of the accused’s expectation of privacy violated by the police and reliability of the evidence will be important.

c. Application Of The Grant Factors

[71] I consider the Grant factors as follows:

1. Seriousness of the breach

[72] There is no evidence that Constable Stotts who downloaded the information on the EDR of the Jeep knew who the owner and driver were. He did not know that the driver had been charged with over 80 or that he was being investigated on charges of Impaired Driving causing bodily harm and Dangerous Driving causing bodily harm. He did not act on the direction of any senior officer on the scene. He acted in accordance with an unwritten policy of the Waterloo Regional Police to search and seize the EDR information from vehicles badly damaged at the scene of an accident. He did so without regard to whether charges had been laid against the driver, whether the driver was under investigation with a view to laying charges, without asking for the consent of the driver or owner, with no consideration of applying for a warrant and with no consideration of any application of the Charter to what he was doing. I accept that Constable Stotts personally acted in good faith. It was the unwritten institutional policy of the Waterloo Regional Police to ignore the potential application of the Charter in entering vehicles damaged at accident scenes and downloading the information on the EDR of these vehicles that is at issue.

[73] Morelli was released on March 19, 2010. The search took place 23 months later on December 22, 2011. Fearon was released on December 11, 2014, almost five years after Morelli and three years after the search in question. The Supreme Court of Canada held in Morelli that people have a privacy interest in their computers that is protected by s. 8 of the Charter. Justice Karaktsanis held that this was a “sea change” in the law.

[74] An EDR is analogous to a computer. It is different from the computer that was under consideration in Morelli and the cell phone that was under consideration in Fearon in that its owner and user does not personally input the digital data that it stores. It does not contain information that goes to the “biographical core” of its user. It automatically records and stores the digital data that is of interest to the crown in the five seconds before there is an incident that causes the airbags to deploy. There was no case in Canada prior to Hamilton which considered whether the driver and owner of a motor vehicle had a privacy interest in its EDR. There remains no appellate authority to this effect. Even experienced trial judges and appellate courts were sometimes slow to recognize the privacy interest that people had in their computers. Soon after Hamilton was released, the Waterloo Regional Police took steps to put in place a protocol for obtaining a warrant to access the EDR of a vehicle should the need arise. It is holding the police to too high a standard to require, in December 2011, that they obtain a warrant or the consent of the owner/driver before accessing the EDR of a damaged vehicle at the scene of an accident. I have found that on the basis of the case law presently available, the police violated Glenfield’s right to privacy in the EDR in his jeep by accessing it without a valid warrant or his consent. I find that the seriousness of that violation is at the low end of the spectrum referred to in para.74 of Grant.

2. Impact on the Charter Protected Interests of the Accused

[75] Assessing this factor at the time the search occurred as I must I find that the impact was minimal for the reasons explained above.

3. Society’s interest in the case being adjudicated on its merits

[76] The exclusion of this evidence would certainly not “gut” the crown’s case on the impaired driving and dangerous driving causing death charges. I do note that the charges arise from the death of an 11 year old boy. The seriousness of the charges could scarcely be overstated.

4. Balancing

[77] Balancing the three factors, the most important, in my view, is that the police could not have been expected at the time of the search, given the state of the law at that time, to realize that they needed either the consent of the owner/driver or a valid warrant before conducting the search.

3. Conclusion

[78] Glenfield has failed to establish that the admission of the EDR evidence in the face of the violation of his s. 8 rights would “having regard to all the circumstances… bring the administration of justice into disrepute.” The evidence will be admitted.

[78]

P.B. Hambly, J.

Released: March 2, 2015

CITATION: R. v. Glenfield, 2015 ONSC 1304

COURT FILE NO.: CJ 7908

DATE: 2015-03-02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JEREMY GLENFIELD

REASONS FOR JUDGMENT

P.B. Hambly, J.

Released: March 2, 2015

[i] [45] A review of the recent decisions of this Court and those of the U.S. Supreme Court, which I find convincing and properly applicable to the situation presented in the case at bar, indicates that certain principles pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure can be derived. In my view, they may be summarized in the following manner:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed. See R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated. See Pugliese, supra.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably. See Rawlings, supra.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

See United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), at p. 256.

7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

[ii] 32 On the facts of this case, we need to address:

1. What was the subject matter of the FLIR image?

2. Did the respondent have a direct interest in the subject matter of the FLIR image?

3. Did the respondent have a subjective expectation of privacy in the subject matter of the FLIR image?

4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:

a. the place where the alleged "search" occurred;

b. whether the subject matter was in public view;

c. whether the subject matter had been abandoned;

d. whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?

e. whether the police technique was intrusive in relation to the privacy interest;

f. whether the use of surveillance technology was itself objectively unreasonable;

g. whether the FLIR heat profile exposed any intimate details of the respondent's lifestyle, or information of a biographical nature.

[iii] B. The Totality of the Circumstances

[26] It was established in Edwards (para. 45), and affirmed in Tessling (para. 19), that in assessing the reasonableness of a claimed privacy interest, the Court is to look at the "totality of the circumstances", and this is so whether the claim involves aspects of personal privacy, territorial privacy or informational privacy. Frequently the claimant will assert overlapping interests. The assessment always requires close attention to context. Nevertheless, some analytical framework is helpful. The trial judge organized his analysis around the Tessling (para. 32) factors and, for ease of reference, I set them out (adapted to the circumstances) here.

(1) Did the Appellant Have a Reasonable Expectation of Privacy?

[27] On the facts of this case, we need to address:

1. What was the nature or subject matter of the evidence gathered by the police?

2. Did the appellant have a direct interest in the contents?

3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage?

4. If so, was the expectation objectively reasonable? In this respect, regard must be had to:

a. the place where the alleged "search" occurred; in particular, did the police trespass on the appellant's property and, if so, what is the impact of such a finding on the privacy analysis?

b. whether the informational content of the subject matter was in public view;

c. whether the informational content of the subject matter had been abandoned;

d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?

e. whether the police technique was intrusive in relation to the privacy interest;

f. whether the use of this evidence gathering technique was itself objectively unreasonable;

g. whether the informational content exposed any intimate details of the appellant's lifestyle, or information of a biographic nature.

(2) If There Was a Reasonable Expectation of Privacy in This Case, Was It Violated by the Police Conduct?

[28] The second question is only reached if the first question is answered in the affirmative.

[iv] [6] … The real question, then, becomes whether, even though such action may not constitute a criminal offence, it would nonetheless, when undertaken by an instrumentality of the state, such as the police, violate s. 8 of the Charter. In my view, that is the correct approach to the matter and I shall deal with it on this basis.

[15] In summary, the risk analysis that is at the heart of the Court of Appeal's judgment rejects the notion that any distinction grounded on constitutional concerns should be drawn between evidence gained through the testimony of a participant to a conversation, and evidence gained through a surreptitious [page42] electronic recording of that conversation. … In effect, the court chose to treat the risk that an interlocutor will divulge one's words and the risk that he will make a permanent electronic record of them at the behest of the state as being of the same order of magnitude.

[17] With respect, it seems to me, the Court of Appeal failed to deal with the true issue raised in this appeal. The real question, as I see it, is whether our constitutional right to be secure against unreasonable search and seizure should be seen as imposing on the police the obligation to seek prior judicial authorization before engaging in participant surveillance, or whether the police should be entirely free to determine whether circumstances justify recourse to participant surveillance and, having so determined, be allowed an unlimited discretion in defining the scope and duration of participant surveillance. This Court is accordingly called on to decide whether the risk of warrantless surveillance may be imposed on all members of society at the sole discretion of the police.

[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.

[23] … 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 and that interception of private communications stands to afford evidence of the offence.

[26] This, it seems to me, flows inexorably from the principles enunciated in Hunter v. Southam Inc., supra. In that case, this Court (p. 157) made the important point that the "assessment of the constitutionality of a search and seizure ... must focus on its 'reasonable' or 'unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective". Applying this standard, it is fair to conclude that if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8 of the Charter, it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them, to use the language of the Code.

[29] The Charter standard just described must, in my view, apply on a uniform basis. To have any meaning, it must be taken to afford protection against the arbitrary recording of private communications every time we speak in the expectation that our words will only be heard by the person or persons to whom we direct our remarks. Section 8 of the Charter guarantees the right to be secure against unreasonable search or seizure. Our perception that we are protected against arbitrary interceptions of private communications ceases to have any real basis once it is accepted that the state is free to record private communications, without constraint, provided only that it has secured the agreement of one of the parties to the communication. Since we can never know if our listener is an informer, and since if he proves to be one, we are to be taken to be tacitly consenting to the risk that the state may be listening to and recording our conversations, we should be prepared to run this risk every time we speak. I conclude that the risk analysis relied on by the [page48] Court of Appeal, when taken to its logical conclusion, must destroy all expectations of privacy.

[30] I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.

[31] The risk analysis relied on by the Court of Appeal fails to take due account of this key fact that our right under s. 8 of the Charter extends to a right to be free from unreasonable invasions of our right to privacy. The Court of Appeal was correct in stating that the expression of an idea and the assumption of the risk of disclosure are concomitant. However, it does not follow that, because in any conversation we run the risk that our interlocutor may in fact be bent on divulging our confidences, it is therefore constitutionally proper for the person to whom we speak to make a permanent electronic recording of that conversation. The Charter, it is accepted, proscribes the surreptitious recording by third parties of our private communications on the basis of mere suspicion alone. It would be strange indeed if, in the absence of a warrant requirement, instrumentalities of the state, through the medium of participant surveillance, were free to conduct just such random fishing expeditions in the hope of uncovering evidence of crime, or by the same token, to satisfy any curiosity they may have as to a person's views on any matter whatsoever.

[35] In a perceptive passage, Hufstedler J. goes on to point out, at p. 72, the fallacy of arguing that the risk of exposure by the "tattletale" and the risk of surreptitious recording are one and the same:

6. Repetition of conversations thought to be confidential is a known risk. However, the risk that one's trusted friend may be a gossip is of an entirely different order than a risk that the friend may be transmitting and recording every syllable. The latter risk is not yet rooted in common American experience, and it should not be thrust upon us: the differences between talking to a person enswathed in electronic equipment and one who is not are very real, and they cannot be reduced to insignificance by verbal legerdemain. All of us discuss topics and use expressions with one person that we would not undertake with another and that we would never broadcast to a crowd. Few of us would ever speak freely if we knew that all our words were being captured by machines for later release before an unknown and potentially hostile audience. No one talks to a recorder as he talks to a person. [Emphasis added.]

[39] In Commonwealth v. Schaeffer, supra, at p. 366, Cirillo J. concedes that there might be room for complacency were the sole effect of warrantless surveillance to compel criminals to engage in self-censorship. But inasmuch as the very premise of a warrantless procedure is that the police can engage in the practice at their sole discretion, any sanguinity in this matter is misplaced. Harlan J. in his dissent in United States v. White, supra, makes the point that the implications in allowing warrantless surveillance cannot be narrowly circumscribed. He stated, at p. 789:

(i) ... it is too easy to forget -- and, hence, too often forgotten -- that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its "risk analysis" solely in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities" ought to bear, the plurality opinion, I think, misses the mark entirely. On Lee does not simply mandate that criminals must daily run the risk of unknown eavesdroppers prying into their private affairs; it subjects each and every law-abiding member of society to that risk. [Emphasis added.]

[40] Harlan J. went on to make the seminal observation that the imposition of a warrant requirement would have the sole effect of ensuring that police restrict "participant monitoring" to cases where [page53] they can show probable cause for a warrant. It is unclear to me how compelling the police to restrict this practice to instances where they have convinced a detached judicial officer of its necessity would hamper the police's ability effectively to combat crime. But even if this were so, this restriction would be justified by the knowledge that the police would no longer have the right "to train these powerful eavesdropping devices on you, me, and other law-abiding citizens as well as the criminal element", to cite the observation of Cirillo J. in Commonwealth v. Schaeffer, supra, at p. 367. The appellant put the matter trenchantly in his factum:

A warrant requirement simply ensures that when the undercover agent goes in with the potential to make a permanent, electronic record of the conversation that takes place, it will be one that should be recorded (a proposed drug sale), as opposed to one that should not (the suspect's sex life or his views of the government).

[47] If the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a humdrum and routine administrative matter, it would seem anomalous that participant surveillance, which leaves to the sole discretion of the police all the conditions under which conversations are intercepted, should be held to meet the definition of "reasonable" in the context of s. 8 of the Charter. I think that the appellant makes a good point when he submits that the large-scale police investigative activity using participant surveillance for monitoring and recording private conversations effectively by-passes any judicial consideration of the entire police procedures and thereby makes irrelevant the entire scheme in Part IV.1 of the Code.

[50] To conclude, the Charter is not meant to protect us against a poor choice of friends. If our "friend" turns out to be an informer, and we are convicted on the strength of his testimony, that may be unfortunate for us. But the Charter is meant to guarantee the right to be secure against unreasonable search and seizure. A conversation with an informer does not amount to a search and seizure within the meaning of the Charter. Surreptitious electronic interception and recording of a private communication does. Such recording, moreover, should be viewed as a search and seizure in all circumstances save where all parties to the conversation have expressly consented to its being recorded. Accordingly the constitutionality of "participant surveillance" should fall to be determined by application of the same standard as that employed in third party surveillance, i.e., by application of the standard of reasonableness enunciated in Hunter v. Southam Inc., supra. By application of that standard, the warrantless participant surveillance engaged in by the police here was clearly unconstitutional.

[55] Of cardinal importance in assessing these factors is the fairness of the process, and, in particular, its impact on the fairness of the trial. Undoubtedly, the breach infringed upon an important Charter right, and the evidence could have been obtained without breaching the Charter. But what strikes one here is that the breach was in no way deliberate, wilful or flagrant. The police officers acted entirely in good faith. They were acting in accordance with what they had good reason to believe was the law -- as it had been for many years before the advent of the Charter. The reasonableness [page60] of their action is underscored by the seriousness of the offence. They had reasonable and probable cause to believe the offence had been committed, and had they properly understood the law, they could have obtained an authorization under the Code to intercept the communication.F Indeed, they could have proceeded without resorting to electronic surveillance and relied solely on the evidence of the undercover officer or the informer. In short, the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. Under these circumstances, I hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.