No Charter-protected expectation of privacy in vehicle operation data

On July 20th, the Court of Appeal for Saskatchewan held that an accused person who drove his pickup truck through a highway intersection and stuck a semi-truck did not have a reasonable expectation of privacy that precluded the police from seizing a control module and its data from his vehicle before it was towed away.

The accident was horrible. There were six people in the truck with the accused, three of whom died, two of whom were children. The police charged the accused with dangerous driving and criminal negligence, and the prosecution relied on evidence retrieved from the wrecked pickup truck at the scene of the accident. Specifically, the police seized the truck’s Airbag Control Module (ACM) from under the driver’s seat. The ACM contained an Event Data Recorder (EDR) with data about the vehicle’s operation during the five seconds before impact in tenth of a second intervals – specifically, speed, accelerator pedal (% full), manifold pressure and service brake (on/off), seatbelt pretensioner readings, airbag deployment readings.

There are competing lines of Canadian jurisprudence regarding the warrantless seizure of on board vehicle computers and their data. The leading Ontario case is Hamilton, a Ontario Superior Court of Justice case that recognizes a reasonable expectation of (informational) privacy. In Yogeswaran, though, the Ontario Superior Court of Justice held that the territorial privacy interest in one’s vehicle is enough to preclude police search and seizure without prior judicial authorization.

Conversely, in Fedan, the Court of Appeal for British Columbia held that one’s territorial privacy interest in their vehicle is extinguished when the vehicle is seized and that EDR data is not associated with a strong enough informational privacy interest to warrant Charter protection.

The Court of Appeal for Saskatchewan followed Fedan. It reasoned that the accused’s truck, being totally destroyed on the side of a public roadway, was in the total control of the police whether or not it was yet to be formally seized based on section 489(2) of the Criminal Code. It concluded:

…the claim to a territorial privacy interest by Mr. Major in that component of his vehicle is weak. While 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

Regarding informational privacy, the Court made the point that not all digital evidence is equally sensitive or revealing of one’s “biographical core.” EDR data of the kind at issue is limited to data about the operation of a vehicle immediately before an accident, and provides no “longer-term information about the driving habits of the owner or operator of a vehicle.” The Court concluded:

After considering the two lines of cases regarding EDR data, I find myself in substantial agreement with the reasoning from Fedan for the characterization of the data stored in the EDR. As in Fedan, the data here “contained no intimate details of the driver’s biographical core, lifestyle or personal choices, or information that could be said to directly compromise his ‘dignity, integrity and autonomy’” (at para 82, quoting Plant at 293). It revealed no personal identifiers or details at all. It was not invasive of Mr. Major’s personal life. The anonymous driving data disclosed virtually nothing about the lifestyle or private decisions of the operator of the Dodge Ram pickup. It is hard to conceive that Mr. Major intended to keep his manner of driving private, given that the other occupants of the vehicle – which included an adult employee – and complete strangers, who were contemporaneously using the public roadways or adjacent to it, could readily observe him. His highly regulated driving behaviour was “exposed to the public” (Tessling at para 47), although not to the precise degree with which the limited EDR data, as interpreted by the Bosch CDR software, purports to do. While it is only a small point, I further observe that a police officer on traffic patrol would have been entitled to capture Mr. Major’s precise speed on their speed detection equipment without raising any privacy concerns.

R v Major, 2022 SKCA 80 (CanLII).