Dashcam footage focus of Ontario Court of Appeal decision to order new trial

Law360 Canada (August 21, 2024, 12:07 PM EDT) --

John L. Hill

A serious motor vehicle collision occurred on an afternoon in March 2018 when Wendel Attard was driving his Lexus on Highway 50 in Brampton, Ont., and collided with a Toyota Corolla. Both the Lexus and the Toyota were damaged beyond repair. The Lexus ended up on its roof in the ditch. The drivers of the vehicles were transported by ambulance to a hospital. 

Attard’s car was towed to a storage depot. Five days later, without telling him or getting a warrant, police, with the assistance of firefighters, accessed the vehicle and extracted the Lexus’s event data recorder (EDR). It is an electronic device that documents speed, throttle and braking in the last five seconds before airbags deploy. The EDR indicated Attard was driving as fast as 130 kilometres per hour in the 80-kilometre-per-hour zone just before the crash.

More than a month later, Attard was charged with the dangerous operation of a vehicle causing bodily harm under s. 249(1) of the Criminal Code. Speed was at the crux of the Crown’s case at trial.

Dashcam footage of the collision was available, but experts could not deduce the speed at which the Attard vehicle was travelling. The EDR data was required to prove the charge beyond a reasonable doubt. Without Attard’s permission and without a warrant, police removed and analyzed the EDR data.

However, at trial, the judge excluded that data from evidence, holding that there was a reasonable expectation of privacy and that the warrantless search violated s. 8 of the Charter, guaranteeing Attard’s right to be secure against unreasonable search and seizure. The Charter breach made the data on the recorder inadmissible. Attard was acquitted, but the Crown appealed. The Ontario Court of Appeal decided the trial judge erred in not accepting the EDR data and ordered a new trial (R. v. Attard, 2024 ONCA 616).

Justice Eileen Gillese, writing for a unanimous three-judge panel, started by finding that the Lexus and its EDR were “things” that s. 489(2) of the Criminal Code allows police to seize without a warrant to provide evidence against a crime. This interpretation was in line with R. v. Fedan, 2016 BCCA 26, and R. v. Major, 2022 SKCA 80, both cases in which leave to the Supreme Court had been refused. There is no expectation of privacy in EDR data, and any limited territorial privacy is extinguished once a s. 489(2) seizure of the vehicle is made.

The appeal court held that the investigating officer did have reasonable grounds to believe an offence of dangerous operation had been committed by a review of the totality of the evidence and not focusing on a statement the officer made upon arriving at the site that he “suspected” speed was a factor. After arriving, he had the opportunity to witness dashcam footage, observe the wreckage and understand both Attard and the Toyota driver were taken to hospital. Everything pointed to a high-speed collision.

The trial judge also misinterpreted s. 489(2) in holding that the contents of a vehicle are places (as opposed to things as set out in the Criminal Code) as was found in R. v. Belnavis, [1997] 3 S.C.R. 341, which would require a warrant to extract. The EDR was a fixture within the car and, therefore, subject to police seizure. It has been held that a mechanical inspection of a vehicle extinguishes the privacy interests of the owner of the vehicle and its component parts (Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879).

The trial judge erred in holding there was an expectation of privacy in the data contained in the EDR. There was no infringement on a driver’s right to maintain privacy regarding biological information, lifestyle or personal choices. State intrusion on privacy might hold if the EDR data, similar to information on a personal computer, a location tracker or a wiretap, contained personal information. Then, a warrant would be required. The EDR records motion activity in the last five seconds before the airbags function. There are no personal identifiers.

In overturning the trial judge and ordering a new trial where the EDR data could be entered, the Court of Appeal considered each of the three Grant factors (R. v. Grant, 2009 SCC 32). These factors are (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the accused’s Charter interest and (3) society’s interests in the adjudication on its merits. In weighing these factors, the appeal court decided that justice is best served by adjudicating the matter anew.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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