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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

IS THERE A REASONABLE EXPECTATION OF PRIVACY IN THE INFORMATION CONTAINED WITHIN A MOTOR VEHICLE’S EVENT DATA RECORDER?  IS EXPERT EVIDENCE REQUIRED TO INTERPRET THAT DATA FOR IT TO BE ADMISSIBLE?   

In R. v. Major, 2022 SKCA 80, July 20, 2022, the accused was convicted of the offence of dangerous driving causing death.  He drove his vehicle through a stop sign causing a catastrophic collision. The Saskatchewan Court of Appeal noted that “[w]ithout obtaining a warrant, the police seized the factory-installed airbag control module [ACM] from Mr. Major’s vehicle at the roadside and accessed data from the event data recorder [EDR], which is a component within the ACM. The data, after being processed through software, provided information, among other things, about the speed and braking of Mr. Major’s truck immediately prior to the crash” (at paragraph 1).

The accused appealed from conviction, arguing that that the seizure of the module and its information violated section 8 of the Charter.  He also argued that the data obtained from the EDR required expert evidence to be admissible.

The appeal was allowed and a new trial ordered.  The Saskatchewan Court of Appeal concluded that “the seizure of the ACM and the EDR data did not violate Mr. Major’s s. 8 Charter rights, but that the information obtained from the EDR was admitted into evidence without a proper foundation. Given the central importance of that evidence, the appeal must be allowed, the convictions set aside and a new trial ordered” (at paragraph 3).

Section 8 of the Charter:

The Court of Appeal held that a “presumption of an expectation of privacy arises in relation to an ACM and EDR data for the owner and driver of a vehicle…Mr. Major had a subjective expectation of privacy in the subject matter of the search and seizure”. However, the Court of Appeal concluded that “[w]hile a warrant could have been obtained, that does not mean one was required. I find that the state of the vehicle, Mr. Major’s loss of control over it, the nature of the ACM as a mechanical safety component installed by the manufacturer, and the focused task by Cpl. Green in locating and removing only it, do not support the continued existence of an objectively reasonable territorial privacy interest at the point when the vehicle was entered… Mr. Major could not reasonably have intended that information related to the last five seconds of his vehicle’s various mechanical and electronic components immediately before a catastrophic collision would be private. The EDR did not hold any personal information about Mr. Major that would attract an objectively reasonable expectation of privacy” (at paragraphs 59 and 66, 71).

The Admissibility of the Data Retrieved:

The Court of Appeal indicated that “the bare fact that data has been recorded in an EDR and extracted by software does not establish its reliability. Thus, without evidence from a properly qualified expert as to how the system accurately records data and creates accurate output, the CDR output did not meet the threshold required for admission” (at paragraph 101).

The Court of Appeal concluded that “a properly qualified expert witness was required in order for the CDR output to be admitted at trial. The technology has not yet progressed to the point where it falls into the same category as a speedometer, video recorder, wrist-watch, spreadsheet program, or similar item of everyday use…It was an error to admit the CDR output without a proper evidentiary foundation establishing its reliability and the reliability of the underlying EDR data. However, this is not the end of the analysis because I must go on to determine the significance of this error” (at paragraphs 102 and 103).     

Conclusion:

The Saskatchewan Court of Appeal concluded that  “[a]s a result of the significance of this evidence, the curative proviso – found in s. 686(1)(b)(iii) of the Criminal Code…cannot be applied. The error is neither harmless nor trivial in the circumstances of this case. The other evidence is not so overwhelming that the trier of fact would inevitably convict. A new trial must be ordered on all counts” (at paragraph 108).