R. v. DOSANJH, 2022 ONCA 689, OCTOBER 7, 2022.

FACTS:  The accused was convicted of the offence of murder.  At his trial, the Crown presented evidence of “tracklog data” obtained from a search of the “infotainment system” of a motor vehicle. The motor vehicle had been rented by the accused under a false name and had been used as the get-away vehicle in the commission of the offence.  The accused appealed from conviction, arguing that the search was unreasonable and the evidence obtained should have been excluded. 

HELD: The appeal was dismissed. The Ontario Court of Appeal held that the accused did not have standing to raise section 8 of the Charter because he did not have a reasonable expectation of privacy in the information the police obtained from the vehicle.

The Court of Appeal noted that “to assert a s. 8 claim, an accused must first establish that he has a reasonable expectation of privacy over the subject matter of the search. It is important to carefully calibrate the subject matter of the search. Once the subject matter is properly identified, then the court looks to: (i) whether the accused has a direct interest in that subject matter; (ii) whether the accused has a subjective expectation of privacy in that subject matter; and, if so, (iii) whether the accused’s subjective expectation of privacy is objectively reasonable in the totality of the circumstances… If the accused cannot demonstrate a reasonable expectation of privacy, then there is no search and seizure within the meaning of s. 8” (at paragraphs 113 and 114).

The Court of Appeal accepted “that the appellant had a direct interest in the GPS tracking data. This data inferentially revealed the appellant’s movements while using the car, personal information that revealed his actions” (at paragraph 118).  However, the Court of Appeal pointed out that “the appellant came into fraudulent possession of the QX60, thereby rendering his connection to the vehicle tenuous at best. Not only was the appellant in unlawful possession of the QX60 when it was collecting and storing data on the Infotainment Page: 43 system, but he had no colour of right over the vehicle – no excuse for his possession. In short, he could neither use the car nor exclude others from it” (at paragraph 129).

The Court of Appeal indicated that the question is “whether Canadians ought to have a reasonable expectation of privacy in GPS data and the contents of a friend’s contact list, all of which has been created and stored in a vehicle they have, in essence, stolen” (at paragraph 134). The Court of Appeal concluded that the answer to this question is: “no” (at paragraphs 136 to 138):

Although a person may reasonably expect that, barring prior judicial authorization, the tracking data produced by a car that they drive will be protected from state seizure, that expectation is not objectively reasonable here because the appellant had no right to possess or use the car that produced that data. In addition to other considerations, the appellant cannot plausibly assert that his dignity, integrity, or autonomy are at stake when his claim to privacy hinges on the very fraud that he committed to obtain that car in the first place: Chow, at para. 34.

I do not doubt that the appellant desired privacy and hoped for it; that is clear from his subterfuge in obtaining the car. The appellant hoped to avoid detection; he hoped that however the car was used, it could not be traced back to him. But that is a far cry from establishing a reasonable expectation that he was entitled to privacy: R. v. Van Duong, 2018 ONCA 115, at para. 7.

In all of these circumstances, including the nature of the subject matter, the place where the search occurred and the appellant’s lack of control over the subject matter, I conclude that the appellant did not have a reasonable expectation of privacy in the subject matter of the search.