R v Major, 2022 SKCA 80

Court of Appeal for Saskatchewan Docket: CACR3223 Citation: R v Major , 2022 SKCA 80 Date: 2022-07-20 Between: Robert Major Appellant And Her Majesty the Queen Respondent Before: Schwann, Leurer and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Leurer On appeal from: CRM 28 of 2017 (QB), Saskatoon Appeal heard: March 17, 2022 Counsel: Brian Pfefferle and Thomas Hynes for the Appellant Erin Bartsch for the Respondent Tholl J.A. I.

INTRODUCTION [ 1 ] Robert Major drove his pickup truck through a highway intersection and struck a semi-truck with catastrophic results. Three of his passengers died, and he and the other three occupants suffered serious injuries. Without 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. Mr. Major was charged with dangerous driving and criminal negligence offences. After a trial by judge and jury, he was convicted of all of the offences in relation to each of the six victims. [ 2 ] At trial, Mr. Major unsuccessfully challenged the admissibility of the EDR data on two bases. First, he had asserted that both the module and its information had been seized in violation of his rights under s. 8 of the Charter .

Second, he had argued that there was an insufficient evidentiary basis for the information derived from the EDR data to be tendered as part of the evidence given by an expert accident reconstructionist. On appeal, he continues to assert that the EDR data should not have been admitted into evidence and raises several other grounds of appeal. [ 3 ] It is my view 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. II. BACKGROUND [ 4 ] Mr. Major moved to an acreage near a town in central Saskatchewan in 2014. Prior to that time, he had not lived in the area. On February 22, 2016, around 6:30 in the morning, Mr. Major and six other people got into his 2012 Dodge Ram 3500 one-ton pickup truck to drive to the town. He was the driver, and the passengers consisted of his three sons, his girlfriend, his nephew and his adult employee. His sons were 4, 5 and 9 nine years old and his nephew was 11 years old.

The vehicle had seating and seatbelts for only six people. Mr. Major’s employee, his 9 year old son and his nephew sat in the backseat. His girlfriend sat in the front passenger seat with the youngest child on her lap. Mr. Major’s 5 year old son sat in the middle of the front seat. None of the occupants wore seatbelts nor were they restrained in any manner. Car seats or booster seats were not present in the vehicle. They then set off on the 15 to 20 minute drive to the town, where most of the children were to be dropped off at Mr. Major’s ex-wife’s home. [ 5 ] It was an early February morning and it was dark.

The weather was clear with normal winter driving conditions. Mr. Major did not take his usual route to the town, but he had driven the same set of roads he took that day on approximately ten previous occasions. He took those particular roads because, although it was not his regular path, he wanted to show his girlfriend a better way to get to town. The route consisted of four relatively short stretches of grid roads, culminating in Range Road 3083 which, after three miles, intersected with Highway 16. The speed limit on RR 3083 is 80 km/hr.

On the day in question, the surface of RR 3083 consisted of packed ice and snow, but was observed to be in good condition. Highway 16 is a divided paved highway with two lanes of traffic flowing in each direction. There is a stop sign facing the vehicles driving on RR 3083 where it intersects with the highway, but it had been knocked down the previous week and was not standing on the day in question. Under s. 219 of The Traffic Safety Act , SS 2004, c T-18.1 , Mr. Major was required to yield the right of way to the traffic on Highway 16, even when a sign was not present. [ 6 ] When Mr.

Major, heading northbound, reached the intersection of Highway 16 and RR 3083, he failed to stop. His truck crossed the two eastbound traffic lanes and entered the westbound lanes, where it broadsided a semi-truck that was hauling two trailers loaded with vehicles. The impact from the collision knocked the semi-truck into the north ditch, ripped the box off Mr. Major’s truck and

imbedded its cab off the ground at the point where the first trailer was attached to the semi-truck’s power unit. All seven occupants were trapped in the Dodge Ram pickup. Emergency personnel responded quickly and worked for hours to free them. Mr. Major’s 4 year old son, 9 year son and girlfriend died. The other three occupants of the vehicle sustained severe injuries and were transported to the hospital. Mr.

Major sustained non-life threatening injuries. [ 7 ] Corporal Douglas Green, an RCMP forensic collision reconstructionist, arrived at the scene shortly before 8:00 a.m., while the rescue efforts were still ongoing. Given the enormity of the situation, he called a second RCMP forensic collision reconstructionist, Cpl. Trent Entwistle, who also attended the site of the collision. After the seven people had been removed from the Dodge Ram pickup, Cpl. Green entered the vehicle and removed and seized the ACM. He did so without seeking permission or obtaining a warrant.

While its purpose is to control the deployment of the airbags, this module also contains the EDR. Corporal Entwistle promptly attached the ACM to his laptop at the roadside and created an image of the EDR data on an RCMP computer using third-party Crash Data Retrieval software made by Bosch [Bosch CDR software].

The Dodge Ram pickup was seized by the RCMP at the roadside and transported to a facility operated by a towing company. [ 8 ] Corporal Green used the imaged data obtained from the EDR, as outputted by the Bosch CDR software, to assist him in creating a forensic collision reconstruction report, which was tendered at trial. Among other things, according to Cpl.

Green, the output from the Bosch CDR software indicated that the Dodge Ram pickup was moving at 137 km/hr 5 seconds prior to the impact, the brakes had been applied 1.2 seconds before the collision, and the vehicle was still going 118 km/hr immediately before it struck the semi-truck. For various reasons, Cpl. Green was not able to make any calculations regarding the speed of the Dodge Ram pickup that did not rely on the EDR data. During his testimony, Mr.

Major’s expert, Malcolm Gibson, agreed that the physical evidence indicated that the collision occurred at highway speeds. [ 9 ] A driver in an eastbound vehicle on Highway 16, who saw the Dodge Ram pickup approaching the intersection, testified that it appeared to him that Mr. Major was driving more than 80 km/hr and estimated his speed at approximately 100 km/hr, which is the speed Mr. Major himself testified in examination-in-chief, which he had guessed he was doing. However, in cross-examination, Mr. Major admitted that he could have been travelling at a speed of up to 137 km/hr. [ 10 ] Mr.

Major testified that he knew there was a stop sign at the intersection. He stated that he was looking for the sign as he drove, but, when he saw the semi-truck, it was too late to do anything to avoid the collision. III. PROCEEDINGS IN THE COURT OF QUEEN’S BENCH [ 11 ] Mr. Major was charged with three counts of dangerous driving causing death, three counts of criminal negligence in the operation of a motor vehicle causing death, three counts of dangerous driving causing bodily harm, and three counts of criminal negligence in the operation of a motor vehicle causing bodily harm.

He was tried before, and convicted by, a judge and jury. A. Voir dire on the Charter challenge to the EDR evidence [ 12 ] In advance of the trial, Mr. Major filed an application seeking to have the information that was extracted from the EDR excluded from evidence on the basis that it was obtained in violation of s. 8 of the Charter . That

section reads as follows: “Everyone has the right to be secure against unreasonable search or seizure”. [ 13 ] Mr. Major’s challenge to the search and seizure of the EDR was twofold. First, he argued that Cpl. Green’s entering of the cab of the Dodge Ram pickup and the removal of the ACM violated s. 8 of the Charter . Second, he argued that downloading the data from the EDR was also a violation of s. 8. A voir dire was held on the Charter issue. Corporal Green was the only viva voce witness.

The transcript from the preliminary inquiry was also tendered as evidence. [ 14 ] The voir dire was held on December 7, 2018, and the trial judge rendered a written decision on the Charter issue on December 31, 2018: R v Major (31 December 2018) Saskatoon, CRM 28 of 2017 (Sask QB). After reviewing the procedural background, she noted that her reasons would be conclusionary in nature, given that the trial was slated to start on January 14, 2019.

She denied the Crown’s application to have the Charte r application summarily dismissed, along with another application that is not implicated in this appeal, and then addressed the voluntariness of Mr. Major’s statements, as discussed below. The trial judge then moved to her analysis of the s. 8 issue. [ 15 ] The trial judge began her assessment of the s. 8 issue by noting that, following the collision, the Dodge Ram pickup was seized and taken to a towing company’s facility. She observed that the legality of its seizure without warrant, pursuant to s. 489(2) of the Criminal Code , was not contested.

The trial judge instructed herself on the test to be applied by referencing R v Reeves , 2018 SCC 5 , [2018] 1 SCR 196, and then framed the analysis she must undertake as follows: [56] Both the Crown and defence counsel, within the voir dire , focused on questions with regard to whether or not Robert Major had a reasonable expectation of privacy in the airbag control module and the data as contained within the event data recorder. Cpl.

Green was the only witness to testify during the voir dire . [57] If the court found that Robert Major did not have a reasonable expectation of privacy in the airbag control module and event data recorder, the court’s analysis would be at an end as there would be no breach of Robert Major’s s. 8 Charter rights. [58] However, if the court found that Robert Major did have a reasonable expectation of privacy in the airbag control module and event data recorder, that would result in a breach of Robert Major’s s. 8 Charter rights.

In that event, it would be necessary for the court to then conduct a s. 24(2) Charter analysis.

[59] In conducting that s. 24(2) analysis, the court must consider the seriousness of the Charter infringing state conduct, the impact of thebreach on the accused’s Charter-protected interests, and society’s interest in the adjudication of the case on its merits: R v Grant, 2009SCC 32 at para 71, [2009] 2 SCR 353. [16] Addressing Mr.

Major’s expectation of privacy in the ACM and in the EDR, the trial judge noted that defence counsel hadacknowledged that the case law from other provinces went both directions in its assessment of whether a person has a reasonableexpectation of privacy with regard to the seizure of an ACM and an EDR and the data contained within an EDR. She summarized theconflicting rulings from R v Hamilton, 2014 ONSC 447, 65 MVR (6th) 239 [Hamilton], and R v Fedan, 2016 BCCA 26, 332 CCC (3d)287, leave to appeal to SCC refused, [Fedan].

It was the defence’s assertion that she should follow the decision inHamilton and apply the logic from cell phone, computer and internet service provider cases, which all had found a reasonable expectationof privacy and a consequent breach of s. 8 resulting from warrantless searches. [17] The trial judge summarized Cpl. Green’s testimony, which was largely uncontroversial. She noted that, after the last of theoccupants of the Dodge Ram pickup had been extricated from the wreckage, Cpl.

Green entered the vehicle at the roadside and removedthe ACM module from under the console that was located between the two front seats. The RCMP officers then promptly connected theunit to a laptop kept in one of their vehicles and imaged the EDR data using specialty Bosch CDR software. Corporal Green subsequentlyused that data as the basis for his forensic collision reconstruction report. [18] After recounting the straightforward parts of Cpl. Green’s testimony, the trial judge found that Mr.

Major did not have areasonable expectation of privacy in the ACM and the EDR data, and, consequently, there was no breach of s. 8 of the Charter. Thepertinent portions of her reasons for reaching that conclusion are as follows: [69] The evidence of Cpl. Douglas Green was most helpful to the court in determining whether or not Robert Major had a reasonableexpectation of privacy in the airbag control module containing the event data recorder in his Dodge Ram truck. Cpl. Green explained whatdata the event data recorder records, especially within the last 34 pages of his report.

The specific event data recorder recorded during thelast five seconds before impact [most recent event] every tenth of a second multiple features of the Dodge Ram truck including the truck’sspeed (MPH (km/hr)), accelerator pedal (% Full), manifold pressure and service brake (off or on). It also recorded the seat beltpretensioner of the driver and front passenger as well as the airbag’s deployment of the driver and front passenger. [70] The data established, amongst multiple other details, that: (

a) the speed of the Dodge Ram truck was 137 km/hr five seconds before impact and was 118 km/hr at impact; and (

b) the brakes of the Dodge Ram truck were applied only −1.2 seconds before impact. … [73] As defence counsel indicated to the court, “We need a ‘test’ for the future as inevitably these devices will be fully integrated into theowners’ cell phones and in some respects already is”. Those comments were made in argument of defence counsel, and there is noevidence before the court that the event data recorder is now or will in the future be linked to an individual’s cell phone. The evidencecalled during the voir dire established just the opposite.

The event data recorder had nothing to do with anyone’s cell phone or computer.It was not linked to a vehicle’s GPS. The safety module was placed in vehicles by the manufacturer, and the airbag control modulecontaining the event data recorder was linked only to the VIN number of the motor vehicle. The software identified the make and modelby inputting only the VIN number – not the owner’s name or any other person identifier of the owner of the vehicle such as name, race,gender or any core biological information. The module cannot be hacked or tampered with. It is a self-contained unit wired into thevehicle.

There is no input availability to the module by the owner; unlike cell phone and computers. The data as contained within theevent data recorder was incapable of being altered by anyone, including Robert Major.

The data recorder recorded the data it wasprogrammed by the manufacturer to record – not programed by Robert Major in any fashion. [74] In short, the court is satisfied it has been established that Robert Major had no reasonable expectation of privacy in the airbag controlmodule containing the event data recorder and, hence, there has not been a breach of Robert Major’s s. 8 Charter rights. [19] Having determined that Mr. Major’s s. 8 rights had not been violated, the trial judge summarily concluded that, even if she hadfound such a breach, she would not have excluded the EDR data under s. 24(2) of the Charter.

B. Voir dire on the voluntariness of Mr. Major’s statements [20] After the Charter challenge voir dire, a voir dire was held in relation to statements made by Mr. Major in the presence ofmembers of the RCMP.

The entirety of the trial judge’s ruling in the written decision regarding these statements is set out in the followingexcerpts: [48] Although at the conclusion of the voir dire it was not necessary for the court to make a ruling as to the voluntariness of the utterancesmade by Robert Major when visited by members of the RCMP at the Royal University Hospital on the day of the devastating collisionand the day after, to complete the record of the pre-trial applications, the following is a short

summary of the evidence heard during thevoir dire. [49] The Crown called three witnesses during the voir dire held to determine voluntariness of two utterances made by Robert Major whenhe was a patient at the Royal University Hospital on February 22 and 23, 2016. [Summary of the testimony of Csts. Hiscock, Pepin and Rushton omitted.] [50] At the conclusion of the voir dire re voluntariness of any identified utterances made by Robert Major to persons in authority at theRoyal University Hospital on February 22 and 23, 2016, voluntariness was admitted by the defence, resulting in no argument or courtruling being necessary in regard to those identified utterances.

C. The trial [ 21 ] The trial was held over a period of two weeks. The Crown called 14 witnesses: Mr. Major’s nephew, the mother of the deceased children, the surviving adult passenger in the Dodge Ram pickup, the wife of the surviving adult passenger in the Dodge Ram truck, the driver of the semi-truck, a maintenance manager from the trucking company, a motorist who saw the collision, a local resident who described the area surrounding the intersection, a captain from the Dalmeny Fire Department, the chief of the Langham Fire Department, Cst. Busch, Cpl. Green, Cst. Pepin, and Cst. Rushton.

Corporal Green testified as an expert in collision reconstruction. An agreed statement of facts was filed that admitted many uncontentious facts. Mr. Major testified in his own defence and called two additional witnesses, consisting of an expert in collision reconstruction and the person who assisted that expert in gathering information upon which to base his opinion. The following summaries of the trial address only the issues that are relevant to this appeal. 1. Admissibility of the EDR data [ 22 ] After the Crown had called its first five witnesses, it sought to tender Cpl. Green as an expert.

It asked to have him qualified to give opinion evidence as an expert in accident reconstruction and, specifically, on the following subject areas: Number one: speed analysis, under (

a) coefficient of friction (drag factor) on various surfaces; (

b) speed over various surfaces before impact from/during slide to stop; (

c) time/distance; (

d) analysis of event data recorder evidence -- … Number two:

interpretation of roadway evidence left by a skidding vehicle prior, during and after a collision; (

a) gouges, scraps, tire marks; (

b) sequence of events before, during and after collision. Number three: vehicle damage analysis; (

a) contact damage, primary and secondary; (

b) principle direction of force; (

c) seat belt analysis; (

d) vehicle occupant kinematics, Delta V. Number 4: human factors; (

a) driver perception, reaction, time and distance; (

b) point of actual perception; (

c) point of possible perception; (

d) IPDE, nighttime driving. And five,

interpretation of photographic evidence. [ 23 ] Mr. Major objected to a portion of Cpl. Green’s qualifications, which was the admission of his report and the admission of the information obtained from the EDR data. He did not take general issue with him being qualified as an expert on accident reconstruction, or in the vast majority of the specified areas, but opposed Cpl. Green being able to provide opinion evidence in relation to EDRs and the information that might be derived from the data contained within them. [ 24 ] At the conclusion of a voir dire , the trial judge limited Cpl.

Green’s qualifications as follows: I don’t think I have to tell you, counsel, that this is a golden example of how not to run a jury trial. Not having had the opportunity of thoroughly analyzing your arguments because it would be impossible to do in ten minutes and we had the jury waiting, I’m concerned about timing on this matter. What I have concluded on the short time I’ve had is that Corporal Green is going to be allowed to give the Court expert opinion evidence in all matters as listed under speed analysis, with the exception of (

d) analysis of the event data recorder evidence. All of two, three, four, five. I am concerned about the percentage and his lack of knowledge with regard to the event data recorder. And in particular the margin of error. Having said that, I am going to allow him to give evidence with regard to what he did. That he removed it from the RAM truck. That he connected it to a computer and what data he recovered. Not to provide any expert evidence, but factual evidence. The -- the defence will be allowed to cross-examine him in front of the jury with regard to the weight of that evidence, how accurate it is.

But only as a witness testifying, not as an expert, but as a factual witness, what he did. [ 25 ] In response to this ruling, the Crown asked for clarification with regard to the use of the information provided by the report generated by the Bosch CDR software. The following exchange took place: MR. PILON [Crown counsel]: What opinion is Corporal Green providing in the analysis of event data recorder evidence?

So I don’t know that he would need to be an expert to say, I used the figures in that CDR download to do my calculations and these are what the results of my calculations -- THE COURT: I don’t think he is testifying as an expert. He’s testifying of what he did. MR. PILON: And his calculations based on the numbers he got from that imaging. THE COURT: That’s right. … MR. PILON: Just before we do that, My Lady, I just want to confirm one thing and I’ll just present the CDR report to you, specifically page 13. Just -- it will assist with my question to confirm that I’m on the same page as what you indicated.

But essentially as this page outlines timestamp, engine RPM, speed, service brake on or off; when you mentioned earlier that this was factual information and Corporal Green can refer to it, I would like to confirm that that means he would be allowed to refer to this page 13 and say, This says at timestamp negative 1.2 service brake goes from off to on? THE COURT: That’s what the data that he extracted from the event data recorder, it’s what he got. MR. PILON: Yeah, thank you. THE COURT: But not opinions about --

MR. PILON: No. THE COURT: -- why it’s there. Is everyone -- MR. PILON: That’s simply what he says. THE COURT: -- clear on my ruling? [ 26 ] Mr. Major objected to the admission of Cpl. Green’s forensic collision reconstruction report on the basis that the report itself should not go to the jury. In discussing that issue, the use to which the information derived from the EDR could be put was further explored: THE COURT: The one concern, and it may not be a concern, will it run afoul of the ruling I have made?

I have never seen this report, so I don’t know if there is opinions within that report with regard to the event data recorder. MR. PILON: I don’t believe that there are, anything in relation to that. THE COURT: Number 1. MR. BRAYFORD: Well, the -- the

chapter on speed analysis particularly interprets the -- the event data recorder information. To -- to say it doesn’t run -- I -- I -- respectfully, it would be a defence submission that the speed analysis is -- is directly in contradiction of the ruling. MR. PILON: The speed analysis

section on page 18 of the report simply recites what the air bag control module, the event data recorder says. The Corporal doesn’t analyze what’s in there and offer an

interpretation, he simply lists it. And perhaps -- THE COURT: Do you want to share it with me? MR. PILON: Yeah, sorry. I had provided it to Madam Clerk, if she could pass it up to you, My Lady. He simply recites what it says. He doesn’t analyze it or interpret it or do any sort of opinion in relation to it. He says, The recorded speed of the RAM at 1.2 seconds was 128 kilometres per hour. That’s just what the event data recorder says. He hasn’t interpreted anything. He doesn’t have an opinion, that’s what it says.

THE COURT: Now, again the second last paragraph with regard to his opinion, if the RAM truck had been travelling at 80 kilometres an hour, that has nothing to do with the data -- event -- MR. PILON: Correct. THE COURT: -- data recorder. MR. PILON: Correct. THE COURT: All right. MR. BRAYFORD: Oh, there -- there’s lots of -- there’s lots of things in the report that would not be offended -- or excuse me, would not offend the ruling. But that’s not the basis of the objection in the first place. And -- … MR. PILON: … He’s not interpreting anything.

He’s not telling anybody on that page 7 what to believe, what to ignore. He’s simply relisted what the event data recorder tells him at each second. It’s not an

interpretation. He’s not offering an opinion. He never says anything of an opinion. He simply says, This is what the event data recorder says. THE COURT: And my ruling says that’s all he can testify to. MR. PILON: Exactly. Ruling (Admissibility of Evidence) THE COURT: I certainly appreciate both of your position, I understand the concern if we allow the filing of the report with the jury and also have the benefit of Corporal Green’s testimony.

On the understanding that his testimony will be in full compliance with my previous ruling of today, I’m prepared to have the report admitted into evidence for the purpose of continuing with this examination-in-chief. [ 27 ] Despite the limitation to Cpl. Green’s qualifications, his report – which relied upon and explicitly set out the speed and braking data obtained from the output generated by the Bosch CDR software, based on the EDR data in the Dodge Ram pickup’s ACM – was admitted as a full exhibit. Corporal Green was also permitted to testify fully about that speed and braking data.

In doing so, he provided significant amounts of testimony regarding the functioning of ACMs and EDRs and on the specific information that the Bosch CDR software extracted from the Dodge Ram pickup’s EDR. His report and his testimony repeatedly informed the jury that the EDR data indicated that the Dodge Ram pickup was travelling at 137 km/hr 5 seconds before the collision, the driver applied the brakes 1.2 seconds before the collision and the Dodge Ram pickup was travelling at 118 km/hr immediately before it struck the semi-truck.

Corporal Green’s subsequent calculations and conclusions relied on those basic facts. 2. Cst. Rushton’s testimony [ 28 ] During his examination-in-chief, Cst. Rushton testified about his interactions with Mr. Major, as he had done during the voir dire . However, his testimony went beyond that which was summarized by the trial judge after the voir dire and, also, beyond what he had

testified to at the voir dire. When Cst. Rushton’s examination-in-chief concluded, Mr. Major’s counsel asked for a short break.Immediately after the break, Mr. Major applied for a mistrial based on his assertion that Cst. Rushton had provided prejudicial andinadmissible evidence. [29] After further submissions by the parties, the trial judge dismissed the application for a mistrial and indicated that any prejudicecould be cured through cross-examination and in her instructions to the jury. Mr. Major chose not to cross-examine Cst. Rushton.

In hercharge to the jury, the trial judge specifically addressed the concerns with his testimony, as set out at pages T674, T675 and T682 of thetrial transcript. On appeal, Mr. Major takes issue with the failure to hold a voir dire before the alleged utterances were admitted intoevidence and with the admission of this evidence in any event. 3. Charge to the jury on criminal negligence and dangerous driving [30] As part of her charge to the jury, the trial judge provided instructions regarding the law of dangerous driving and criminalnegligence. Mr.

Major asserts that these instructions contained errors of law in that they implied to the jury that simple traffic offenceswere sufficient for a conviction for the Criminal Code offences. This concern was raised with the trial judge after the charge to the jurywas completed, but did not result in supplementary instructions. 4. Convictions [31] Mr. Major was convicted of all twelve counts in the indictment. Applying the principle from R v Kienapple, (SCC), [1975] 1 SCR 729, the trial judge entered a judicial stay on the six dangerous driving charges. Mr.

Major was sentenced to sevenyears of incarceration for each of the criminally negligent operation of a motor vehicle causing death charges and three years ofincarceration for each of the criminally negligent operation of a motor vehicle causing bodily harm charges. The sentences were ordered tobe served concurrently. Mr. Major has not appealed his sentences. IV. ISSUES [32] The issues in this appeal can be stated as follows: (

a) Did the trial judge err in determining that the seizure of the ACM and the EDR data did not violate Mr. Major’s rights unders. 8 of the Charter? (

b) Did the trial judge err in admitting the evidence generated from the EDR data without there being a proper evidentiary basis? (

c) Did the trial judge err by permitting impermissible evidence to be tendered through the testimony of Cst. Rushton? (

d) Did the trial judge err in admitting some of Mr. Major’s statements, which were made to Cst. Rushton, without holding a voirdire? (

e) Did the trial judge provide erroneous instructions to the jury regarding the elements of dangerous driving and criminalnegligence? [33] At the oral hearing of the appeal, Mr. Major abandoned his assertion that the verdict was unreasonable or unsupported by theevidence. [34] As a result of my findings with regard to the first two issues, it is not necessary to address the remaining ones. However, in lightof the fact that a new trial has been ordered, I would be remiss in not observing that some of the testimony that Cst.

Rushton was permittedto provide appears problematic from an admissibility standpoint and, without ruling on this issue, may have been admitted in error. V. ANALYSIS A. The s. 8 Charter challenge [35] As noted above, s. 8 of the Charter states, “Everyone has the right to be secure against unreasonable search or seizure”.Mr. Major asserted at the voir dire, and continues to submit on appeal, that there were two s. 8 Charter violations or, at least, two separateaspects of one breach. First, he argues that Cpl. Green, by entering the Dodge Ram pickup and removing the ACM, breached his s.8Charter rights.

Second, he contends that accessing and imaging the data contained on the EDR was also a search and seizure in violationof his s. 8 rights. The Crown submits that the RCMP officers were entitled to enter the Dodge Ram pickup at the roadside, remove theACM and image the EDR data without a warrant or Mr. Major’s consent. It contends that these actions did not violate Mr.

Major’s s. 8rights. [36] To the extent that an appeal from a Charter application raises a question of law, the standard of review is that of correctness.The standard of review applied to the findings concerning underlying facts is that of palpable and overriding error: see R v Lichtenwald,2020 SKCA 70 at para 22, 388 CCC (3d) 377, and R v Farrah, 2011 MBCA 49 at para 7, 274 CCC (3d) 54. [37] In my view, the seizure of the ACM and the EDR data did not constitute a violation of s. 8 of the Charter because Mr. Majorhad no reasonable expectation of privacy in the subject matter of the alleged search.

I arrive at this conclusion for the reasons that follow. 1. General s. 8 principles

[38] The analysis of an alleged s. 8 breach starts with an examination of whether the accused had a reasonable expectation ofprivacy in the subject matter of the search, assessed within the totality of the circumstances. A person’s expectation of privacy in thesubject matter of a search must be subjectively held and objectively reasonable.

If the claimant fails to establish that a reasonableexpectation of privacy existed at the time of the search, there was no search or seizure within the meaning of s. 8: see R v Spencer, 2014SCC 43 at paras 16–17, [2014] 2 SCR 212 [Spencer], and R v Mills, 2019 SCC 22 at paras 12–13, [2019] 2 SCR 320. [39] The factors to consider when analyzing whether a reasonable expectation of privacy existed were described in Spencer asfollows: [18] The wide variety and number of factors that may be considered in assessing the reasonable expectation of privacy can be groupedunder four main headings for analytical convenience: (1) the subject matter of the alleged search; (2) the claimant’s interest in the subjectmatter; (3) the claimant’s subjective expectation of privacy in the subject matter; and (4) whether this subjective expectation of privacywas objectively reasonable, having regard to the totality of the circumstances: Tessling [2004 SCC 67], at para. 32; R. v.

Patrick, 2009SCC 17, [2009] 1 S.C.R. 579, at para. 27; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 40. However, this is not a purely factualinquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while theanalysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from the independent perspectiveof the reasonable and informed person who is concerned about the long-term consequences of government action for the protection ofprivacy”: Patrick, at para. 14; see also R. v.

Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at para. 34, and Ward [2012 ONCA 660], atparas. 81–85. [40] Privacy is generally broken down into three categories for the purposes of analyzing a particular fact situation – personal,territorial and informational: R v Tessling, 2004 SCC 67 at para 20, [2004] 3 SCR 432 [Tessling]; R v Patrick, 2009 SCC 17 at para 42,[2009] 1 SCR 579 [Patrick]; and R v Gomboc, 2010 SCC 55 at para 19, [2010] 3 SCR 211. However, there is often no bright line betweenthe categories and they frequently overlap: Tessling at para 24 and Patrick at para 42.

Personal privacy protects bodily integrity, which isnot relevant to this appeal. Territorial privacy finds its origins in cases that considered intrusions by the authorities into private homes, butapplies to a wider array of places than just dwelling houses, including private vehicles: Tessling at para 22; R v Wise, (SCC), [1992] 1 SCR 527 [Wise]; R v Mellenthin, (SCC), [1992] 3 SCR 615; and R v Belnavis, (SCC),[1997] 3 SCR 341. Informational privacy engages the rights of individuals to control when, how, and to what extent information aboutthem is made available to other persons: Tessling at para 23.

The issues in this matter involve potential territorial and informationalprivacy interests. 2. ACM or EDR specific jurisprudence [41] There are two divergent lines of case authority in which Canadian courts have considered an alleged s. 8 breach related toACMs and the EDR data contained therein. Mr. Major urges us to accept the reasoning from Hamilton and the Ontario and Alberta casesthat have followed it, where a s. 8 breach was found to exist.

In response, the Crown argues that Fedan, where no violation of s. 8 wasfound, is the more persuasive authority on the issue of whether a warrantless search for an ACM, and subsequent extraction of the datafrom an EDR, violates an accused’s s. 8 Charter rights. a. Hamilton line of cases [42] In Hamilton, a pickup truck and a station wagon collided at the intersection of two rural roads, resulting in the death of thedriver of the station wagon. A police collision reconstructionist promptly attended at the scene, observed the heavily damaged vehicles,and formed the opinion that the driver of the pickup truck, Mr.

Hamilton, had failed to stop when required to do so by a traffic sign. Thepolice officer entered the truck, without first asking for consent or obtaining a warrant, and accessed the ACM – which was locatedbeneath the carpet under the driver’s seat – by cutting the flooring and removing a plug. He then connected his laptop to the ACM andimaged the EDR data that was contained within it. After doing so, the police officer removed the ACM and then seized the pickup truck.The pickup truck was a total loss and was not repaired. Mr. Hamilton was not arrested but was charged with dangerous driving causingdeath.

At trial, the Crown attempted to rely on the braking, acceleration and speed information obtained from the EDR. Mr. Hamiltonsought to have this evidence excluded, asserting that it had been obtained in violation of his s. 8 Charter rights.

As a result, a voir dire washeld. [43] At the conclusion of the voir dire in Hamilton, MacDougall J. observed that this was not a search incident to arrest, there wereno exigent circumstances and the police reconstructionist had already formed the belief that he had reasonable and probable grounds tocharge the driver with dangerous operation of a motor vehicle when he entered the pickup truck. Mr. Hamilton testified at the voir direthat, as an off-duty police officer, he was aware of the presence of the ACM and the type of data that it contained, and believed that theACM belonged to him.

The interest he asserted was primarily territorial privacy with respect to the vehicle and, to a lesser extent,informational privacy with regard to the data that related to his manner of driving in the 2.5 seconds preceding the collision. The voir diredecision turned on the territorial interest. In concluding that Mr. Hamilton had a reasonable expectation of privacy with respect to theinterior of the truck and the data contained in the ACM and, therefore, a search had occurred, MacDougall J. found, inter alia, thefollowing: (

a) The subject matter of the search was the data contained in the ACM. The data is owned by the owner of the vehicle. (

b) Mr. Hamilton, based on his own experience, was aware that the ACM was in the vehicle and that its EDR contained data thatcould potentially provide incriminating evidence. He believed the investigator needed his consent or a warrant to access it. (

c) Mr. Hamilton had a direct interest in the data and a subjective expectation of a combination of territorial and informationalprivacy regarding “what was in the interior of his vehicle, and in particular, with respect to the data stored on the ACM” (at para 33). Heintended the information to be private. (

d) The Crown’s argument that the involvement of a vehicle in an accident transforms it from a place to a thing, such that anyreasonable expectation of privacy is negated, must be rejected because such a finding would untenably permit the police to conduct a

search, without limits, on any vehicle involved in a collision. (

e) The police collision reconstructionist had trespassed when he entered the truck, leading to a significant impact on the privacyanalysis. The police action was intrusive. (

f) An owner of a vehicle has a high expectation of privacy in the data stored in the ACM given “what it reveals about the personinvolved, the reasons why it was collected, and the circumstances in which it was intended to be used” (at para 54). (

g) The data in the ACM is of a qualitatively different nature and category than what could be observed by a member of thepublic and is not in the public view. It would not be within the ability of the average person to make observations with the same level ofdetail and specificity as that recorded by the EDR. The information obtained was not mundane and unsurprising. (

h) The technique used to gather the evidence from the ACM was objectively unreasonable. [44] Justice MacDougall concluded that the warrantless search was presumptively unreasonable and that the Crown had failed toestablish it was reasonable in the circumstances.

However, after conducting an analysis under s. 24(2) of the Charter, he declined toexclude the evidence. [45] Several subsequent cases from Ontario have reached the same result as Hamilton, holding that the police can only enter avehicle and access the EDR data with either the consent of the owner or on the authority of a warrant: R v Glenfield, 2015 ONSC 1304,321 CCC (3d) 483 [Glenfield]; R v Attard, 2020 ONCJ 108, 59 MVR (7th) 150 [Attard]; and R v Yogeswaran, 2021 ONSC 1242, 480CRR (2d) 226 [Yogeswaran].

In Glenfield, I note that the fact the driver did not testify regarding his own expectation of privacy was notproblematic with regard to a finding that there was a subjective expectation of privacy. In Attard, the Crown conceded that a subjectiveexpectation of privacy existed, despite the absence of testimony from the accused on the voir dire. [46] Standing out in the Ontario jurisprudence is R v Anstie, 2019 ONSC 976, where the warrantless search and seizure of EDR data– referred to as CDR data (crash data recovery) – was found not to violate s. 8 of the Charter.

That case involved a rental car, where thecontract contained a term stating that the renter consented to the data being retrieved and used by the rental car company, which areimportant distinguishing factors. However, the reasoning in Anstie also significantly diverged from that in Hamilton and Glenfield withregard to the existence of a privacy interest in the data. In discussing the objective reasonableness of the expectation of privacy, London-Weinstein J. said this: [42] The information gathered in this case, in my view, does not expose any intimate details, or core biographical detail related toMr. Anstie.

Nor is it the type of information which was created with the expectation that it would be kept private. In my view, it is not thetype of information which requires protection from the state. [43] There is no risk that core biographical information which an individual might want to keep private will be disclosed by collection ofthe data, such as the information which was the subject of dispute in cases like R. v. Jones, 2011 ONCA 632 , 107 O.R. (3d) 241and R. v. Vu, 2013 SCC 60, [2013] S.C.J. No. 60, 3 S.C.R. 657.

Those cases dealt with cell phones and personal computers, where the datacollected is vastly different from the type of data collected on a CDR. One would expect to encounter a great deal of core biographicalinformation on a person’s cell phone, or their personal computer. The devices are ubiquitous, and not surprisingly, full of personalinformation disclosing intimate details related to the user’s use of the device. [44] It must be born in mind that the data on a CDR only reveals information which relates to steering, braking and speed in the last fiveseconds prior to a collision.

The manner in which one operates a vehicle five seconds before a collision is not the type of information forwhich it is objectively reasonable to expect privacy. Driving is a public and highly regulated activity. The cars involved in this collisionwere captured on a posted video camera. A still of the two cars taken from that video was presented in this court. … [46] In this case, I have also considered that Mr. Anstie did not own the vehicle. He rented it, and the rental agreement stipulated thatEnterprise would access any CDR data in the event of an accident.

The fact that the person asserting an expectation of privacy claimshould have known that terms governing a commercial relationship may have permitted disclosure is not necessarily determinative. (R. v.Gomboc, 2010 SCC 55 at para 34). I agree with counsel for the Applicant that one cannot be said to have contracted away one’sconstitutional right to be free from unreasonable state intrusion. I did not regard the rental lease to be determinative in this case as towhether any expectation of privacy which Mr. Anstie was asserting in the CDR data was either subjectively or objectively reasonable.

Itwas one factor to be considered in the analysis, as certainly Mr. Anstie would have known that in the event of an accident, the data itselfrelating to any accident would be retrieved by the company who owned the car. This knowledge would have impacted his reasonableexpectation of privacy in the data to some degree. … In the case before me, Mr. Anstie was merely renting the car, he did not own it, butmore importantly, it is the nature of the data itself which in my view, render it unable to give rise to s. 8 protection. The data was fiveseconds of driving in the moments before a crash.

While potentially incriminating, it contains no personal characteristics which I candetect. (Emphasis in original) [47] The subsequent decisions in Attard and Yogeswaran both declined to follow Anstie. However, in Yogeswaran, after reviewingFedan, Hamilton and Glenfield, Stribopoulos J. explained that he would take a different approach from those cases to conclude that theaccused’s s. 8 Charter rights were infringed. He noted that neither Hamilton nor Glenfield involved a situation where a vehicle had beenseized pursuant to s. 489(2) of the Criminal Code.

Justice Stribopoulos stated that it was decided long ago that a vehicle owner or driverwith the owner’s permission enjoys a reasonable expectation of privacy in the vehicle, which automatically engages their s. 8 Charterrights. Thus, once those rights are engaged, he found that it did not matter whether the accused maintained an informational privacyinterest in the subject evidence.

He distinguished the holding in Fedan from other cases where an informational privacy interest wasengaged, such as accessing electricity consumption data – banking records (R v Plant, (SCC), [1993] 3 SCR 281 [Plant]),heat emanations (Schreiber v Canada (Attorney General), (SCC), [1998] 1 SCR 841 (see also Tessling)), or internetsubscriber information (Spencer) – and noted that, in none of those cases, did the police have to enter a physical place where the subject of

the search enjoyed a reasonable expectation of privacy. [48] The Alberta Provincial Court addressed these same issues in R v Greyeyes, 2021 ABPC 240 [Greyeyes]. In that case, theinformation from the ACM was downloaded by plugging a cable into the diagnostic link indicator under the dashboard and accomplishedwithout having to remove the unit from the vehicle. In the course of her judgment, Chrenek P.C.J. expressly rejected the reasoning inFedan and accepted the analysis from Hamilton, Glenfield and Yogeswaran.

As a result, a breach of s. 8 of the Charter was found and theevidence was excluded after a s. 24(2) analysis. b. Fedan [49] In Fedan, the accused was the owner and driver of a pickup truck that was involved in a single vehicle accident, wherein twopassengers were killed. The pickup truck was lawfully seized without a warrant pursuant to s. 489(2) of the Criminal Code and towed to acompound. Two days later, the police obtained a warrant to search the vehicle for blood, DNA, fingerprints, personal effects, anddocuments related to the registration, insurance and maintenance logs from the vehicle.

Notably, the warrant did not mention the ACM –referred to as the sensing diagnostic module (SDM) in that case – that was installed in the vehicle in the floor beneath the driver’s seat.Despite the warrant not addressing the seizure of the ACM or the extraction of its data, the ACM was removed and its data retrieved. TheACM captured generally the same type of data as the EDR in the present case and similarly could only be imaged through the use ofspecialized software. [50] At trial, the accused unsuccessfully asserted that the ACM data had been obtained in violation of his s. 8 Charter rights.

He didnot testify at the voir dire: R v Fedan, 2014 BCSC 1716, 68 MVR (6th) 131. The trial judge held that Mr. Fedan had no subjectiveexpectation of privacy in the information contained on the ACM because there was no evidence he was aware that such a device wasembedded in his vehicle.

The trial judge specifically rejected the analogy from Hamilton, which compared the data found on an ACM toan “onboard computer” (at para 44), emphasizing that the data was created by the vehicle and not the driver, the actions captured by theACM are visible to the public eye, the data cannot be altered, and the data cannot be read without special software. [51] The British Columbia Court of Appeal upheld the bottom-line decision regarding s. 8, but for different reasons than that of thetrial judge.

On appeal, Smith J.A. canvassed the applicable legal principles that apply when evaluating whether a person’s s. 8 Charterrights have been engaged, including the differences between a territorial privacy interest and an informational privacy interest. With regardto territorial privacy, she observed that there is a significantly reduced expectation of privacy in a vehicle, given the highly regulatednature of driving on a public road.

Turning to informational privacy, Smith J.A. said the following: [67] Informational privacy is about protecting personal information that may reveal intimate details of the biographical core, lifestyle andpersonal choices of the individual, or that directly compromises the individual’s “dignity, integrity and autonomy”: R. v. Plant, (SCC), [1993] 3 S.C.R. 281 at 293. In that case, the accused was found to have no reasonable expectation of privacy incomputer records revealing the electricity consumption of his residence because he had no control over or access to the content of theinformation.

Spencer introduced an additional facet to informational privacy: privacy as anonymity. While identifying the primary privacyinterest as informational, the Court in Spencer also recognized that an overlap existed between the accused’s informational and territorialprivacy as the computer that was the subject matter of the warrantless search was situated in the accused’s home. [52] Justice Smith noted that establishing a subjective expectation of privacy is not a high hurdle to clear and that it may bepresumed or inferred from the circumstances.

In examining this factor, she found that the trial judge had erred by declining to presumethat the accused had a subjective expectation of privacy in the ACM data, concluding that “in the absence of evidence to the contrary, inmy view the jurisprudence supports a presumption that Mr.

Fedan had an expectation of privacy in his vehicle, albeit markedly reducedfrom a home or office, which extended to the SDM as it was an integral component of his vehicle, not unlike an engine” (emphasis added,at para 76). [53] Moving on to whether that subjective expectation was reasonable, Smith J.A. framed the analysis by stating that “[t]he moredifficult question is whether Mr. Fedan’s presumed expectation of privacy in the SDM translates to an objectively reasonable expectationof privacy in its data” (at para 77).

In addressing this question, Smith J.A. found as follows: [78] There is a distinction to be made between the device and the data downloaded from the device. Mr. Fedan had a territorial privacyinterest in the device; he claims to have an informational privacy interest in its data. With respect, I am unable to see how Mr. Fedan couldhave any residual territorial privacy interest in the SDM after the vehicle was lawfully seized or any informational privacy interest in theSDM data as, standing alone, the data provided no personal identifiers that could link Mr. Fedan to the captured data.

He therefore had noreasonable expectation of privacy in the SDM or its data after the vehicle was lawfully seized. [54] The British Columbia Court of Appeal disagreed with the decisions in Hamilton and Glenfield. It buttressed its findingsregarding the absence of an informational privacy interest in the data by further referring to Tessling and concluding that no informationalprivacy interest could exist at all in the ACM’s data since no information could be gleaned from that device that revealed any intimatedetails about the accused or any information about who was driving the vehicle.

The following excerpts captures the thrust of thatdetermination: [82] Nor do I accept Mr. Fedan’s analogy between the SDM and a personal computer or a “black box” and therefore do not find thereasoning in Vu [2013 SCC 60] to be applicable. As noted, the data recorded by the device did not extend to personal identifiers of thedriver of the vehicle.

Most significantly it contained no intimate details of the driver’s biographical core, lifestyle or personal choices, orinformation that could be said to directly compromise his “dignity, integrity and autonomy” (Plant at 293). … [84] Again, after undertaking a normative assessment of the reasonableness of Mr. Fedan’s privacy claim I find it difficult to see how anoperator of a vehicle might be found to have reasonably intended the last five seconds of information pertaining to his or her driving beforea collision to be private.

Driving on a public road is a highly regulated activity that is open to public view, as evidenced by Mr. Schneiderwitnessing Mr. Fedan’s erratic driving 20 minutes before the accident. Had another member of the public witnessed the collision, that

person would have seen the information captured by the SDM, albeit with less accuracy. [85] Nor am I persuaded that privacy as anonymity, as identified in Spencer , is applicable in this case. Spencer involved significant informational privacy interests in the contents of the accused’s personal computer located in his residence. The police accessed identifying information about the appellant through an Internet Service Provider. The Court found that the identity of a person linked by their Internet usage gave rise to a privacy interest based on anonymity.

In doing so, it noted that the Internet is a unique public place in that a key feature of it is the ability for its users to remain anonymous. In this case, however, there was nothing private about the manner of Mr. Fedan’s driving on a public road. He admitted to driving the vehicle at the time of the accident. In my view a privacy interest in anonymity is not engaged in the circumstances of this case. [86] In sum, in the context of this case and the totality of the circumstances, I find Mr. Fedan did not have a reasonable expectation of privacy in the SDM and its data.

His territorial privacy interest in the device was extinguished by the lawful seizure of the vehicle and he had no informational privacy interest in the SDM data as it contained no personal information linking him to the operation of the vehicle at the material time. [ 55 ] In R v Patterson , 2020 ONCJ 536 at paras 50–51 , 76 MVR (7th) 162, Latimer J. partially agreed with Fedan by finding that a lawful seizure of a vehicle extinguishes an accused’s territorial privacy interests in a vehicle’s components.

However, at paragraph 53 of his judgment, he determined that an accused’s informational privacy interest in EDR data survives a legal seizure of a vehicle, necessitating the acquisition of a warrant in order to access it. [ 56 ] With this jurisprudence in mind, I turn to an analysis of whether the seizure of the ACM and the imaging of the EDR data contained therein constituted a search within the meaning of s. 8 of the Charter . While all portions of the test must be examined, it is my view that the analysis turns on whether Mr. Major had an objectively reasonable expectation of privacy. 3.

Analysis of the alleged s. 8 violation a. Subject matter of the search and seizure [ 57 ] The ACM was seized along with the data it contained. The ACM unit was inconsequential to anyone because it did not provide evidence of anything. It was only important in that it needed to be removed so that the EDR could be accessed and the data extracted from it. It was the data that was of interest to the police. However, the same observation could often be made about other electronic devices, such as computers or mobile devices, that are seized.

So, while it is the data that formed the dominant subject matter of the search and seizure, the ACM itself was also a subject of the search and seizure. b. Interest in the subject matter of the search and seizure [ 58 ] Mr. Major was the owner of the Dodge Ram pickup and its myriad parts, including the ACM that recorded and retained data. While he was the owner and driver of the vehicle, there was no evidence he was aware that such a component even existed. This item was not like a stand-alone device, such as a computer or a mobile device, which the user knowingly operates. Mr.

Major did not use the component in question, except to the extent that its presence was necessary to permit a safety system in his vehicle to continue operating. Importantly, at the relevant time, his vehicle was lying on the roadside in a state of complete destruction and was ultimately seized by the police and taken to an impound lot. At that point, Mr. Major had an interest in the ACM and the EDR data, but his interest was weak. c. Subjective expectation of privacy [ 59 ] Mr. Major did not testify at the voir dire as to his subjective expectation of privacy in either the vehicle, the ACM or the EDR.

However, as illustrated by Tessling and Patrick , such testimony is frequently not necessary. I agree with the reasoning from Fedan and Glenfield that found a presumption of an expectation of privacy arises in relation to an ACM and EDR data for the owner and driver of a vehicle. As such, given that there was no evidence to the contrary, I find that Mr. Major had a subjective expectation of privacy in the subject matter of the search and seizure. So saying, there was nothing that demonstrated Mr.

Major had a heightened subjective interest, given that there was no evidence at the voir dire that he was even aware that the ACM existed or that it recorded data related to the vehicle and its operation. d. Objectively reasonable expectation of privacy [ 60 ] Referencing the framework set out in Tessling and Spencer , Mr.

Major asserts that – after examining the nature of the place that was searched, the fact that the subject of the search was not in public view, his personal possession of the ACM and the EDR data, the statutory framework, the intrusiveness of the investigation technique and the intimate details that were revealed – he had an objectively reasonable expectation of privacy in both the ACM and the EDR data. [ 61 ] The Crown submits that, while an owner of a vehicle has a territorial interest in their vehicle that will usually give rise to a reasonable expectation of privacy, the specific circumstances of this matter extinguished that interest.

It further argues that the seizure of the ACM, and the accessing of the EDR data, did not implicate Mr. Major’s informational privacy interests because it did not reveal any sensitive, personal or biographical information about him. [ 62 ] I will discuss territorial privacy and informational privacy somewhat separately, recognizing that there is some overlap and that it is the totality of the circumstances that must be considered. [ 63 ] An owner of a vehicle generally has a territorial privacy interest in their vehicle.

However, the existence of that interest depends on the circumstances at the time of the seizure of the property. Fedan and Patterson rely on the fact that the vehicle had already been seized by the time that it was entered and the ACM retrieved. In the matter at hand, Mr. Major’s truck was lying on the side of the road in a state of complete ruin. Between the significant destructive force involved in the collision, and the necessary deconstructive efforts of the

rescue personnel in extricating the occupants, the truck was utterly destroyed as a functioning motor vehicle. After the occupants were removed from the truck, it was in the total control of the police and was, at a minimum , in the process of being seized pursuant to s. 489(2) of the Criminal Code , if it had not already been seized by that point. Although the evidence was unclear as to precisely when the police seized the truck, the legality of that seizure was not challenged at trial. By the time the vehicle was entered and the ACM removed, Mr.

Major no longer had any control over the Dodge Ram pickup. [ 64 ] The item that Cpl. Green wished to retrieve was a mechanical component that was known by the police to be a part of the vehicle. Corporal Green testified that an occupant of the vehicle cannot see the ACM when sitting in the vehicle and has no ability to access it. Although its location, or even existence, may not have been known by Mr. Major, there was no secrecy or privacy in the fact that it existed and would be located in the vehicle in a certain spot. Corporal Green entered the vehicle, accessed the component and removed it.

He did not search the truck or rummage around looking for evidence in order to generally assist in the investigation. He directly accessed a mechanical part of the vehicle that he knew existed and seized it without otherwise exploring the truck.

In this respect, the following excerpt from Patrick is instructive: “The point here, I believe, is that while territorial privacy is implicated in this case, the physical intrusion by the police was relatively peripheral, and viewed in context, it is better considered as part of the totality of circumstances in a claim that is preferably framed in terms of information privacy” (emphasis in original, at para 45). [ 65 ] There are countervailing factors. Mr. Major was the owner of the vehicle and had not abandoned it or given his consent for the police to access his vehicle or to remove a component of it.

There were no exigent circumstances in existence when Cpl. Green entered the vehicle and took the ACM or when Cpl. Entwistle downloaded the data. Corporal Green testified that the EDR data cannot be accessed remotely by Bluetooth, mobile device, satellite or similar method. There was no evidence that the data could have potentially been lost or tampered with while waiting for a warrant to be obtained. [ 66 ] In all of these circumstances, it is my view that any 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. [ 67 ] With regard to informational privacy, the Supreme Court has taken several opportunities to consider whether an expectation of privacy is objectively reasonable in relation to information contained in electronic devices: see, for example, R v Cole , 2012 SCC 53 , [2012] 3 SCR 34; R v Vu , 2013 SCC 60 , [2013] 3 SCR 657; Spencer ; and R v Fearon , 2014 SCC 77 , [2014] 3 SCR 621.

The common thread that emerges from these decisions is that the expectation of privacy that exists in intimate personal information – which is often contained in gadgets such as mobile devices and personal computers – is generally objectively reasonable. This is so because these devices “contain information that is meaningful, intimate, and touching on the user’s biographical core” and “everyone in Canada is constitutionally entitled to expect privacy in personal information of this kind” ( Cole at para 2).

However, in my view, an ACM, and its EDR component, are not in the same category as mobile devices, tablets, laptop computers, or other similar devices that might also be independently present in a vehicle. An EDR does not contain information of the same kind that was of concern in Cole , Vu , Spencer and Fearon . It contains precious little information at all. [ 68 ] Mr. Major’s comparison of the EDR to the attachment of a tracking device to a vehicle by the police, which was found to require a warrant in Wise , is not apt.

Unlike a tracking device, an EDR does not store GPS data or track the movements of the vehicle. It only captures limited, anonymous mechanical data, without reference to its location: an EDR can neither broadcast nor receive. It does not have the capability to store any identifying or personal information about the owner, operator or occupants of the vehicle. No one has the ability to create and store data within it, except through driving.

An EDR cannot even reveal who is driving the vehicle. [ 69 ] The closest an EDR comes to saving any personal information is its storage of the manner in which the vehicle was driven immediately pre-collision. The EDR data provides but a brief snapshot of the status of various mechanical and electrical components of the vehicle before a triggering event. According to the evidence in this matter, the data located in an EDR is not such that it provides longer-term information about the driving habits of the owner or operator of a vehicle.

While an ACM and its EDR is, at least partially, an electronic device, it is comparatively rudimentary in nature. Moreover, unlike a mobile device or computer, its owner has no control in relation to any of the information that is stored on it. They cannot input data onto it, retrieve information from it or actively use it for any purpose. It does not record non-vehicle related information nor does it acquire or give location data. In the case at hand, there was no evidence demonstrating that Mr.

Major even knew it existed. [ 70 ] 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. [ 71 ] Based on the foregoing analysis, I find that 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. e. Conclusion on the s. 8 violation [ 72 ] I conclude that Mr. Major did not have an objectively reasonable expectation of privacy in the ACM or the EDR data in the circumstances of this case. As a result, there was no search within the meaning of s. 8 of the Charter .

The trial judge did not err in finding

that the police actions in retrieving the ACM and the EDR data did not infringe Mr. Major’s s. 8 Charter rights. B. Admission of evidence generated from the EDR data [73] Aside from his Charter challenge, Mr. Major asserted that there was not a proper evidentiary foundation for the admission ofthe EDR data at the trial. On appeal, he argues that the trial judge erred by permitting the EDR data – in the form of the output from theBosch CDR software contained and referenced in Cpl. Green’s report and in his testimony – to be admitted into evidence. Mr.

Majorsubmits that, given the absence of an expert who could interpret and establish the reliability of the data, it should not have been admitted.Because the raw EDR data was meaningless without having been downloaded and interpreted by the Bosch CDR software, I will refer tothe information that the Crown tendered, which found its genesis in the EDR data, as the CDR output. It was the CDR output that wastendered at trial, not the EDR data. However, it is both the reliability of the EDR data itself and the CDR output, which is asserted byMr.

Major to have been problematic. [74] The Crown argues that the CDR output did not require expert evidence in order to be admitted. The Crown asserts that it wasadmissible under s. 31.1 of the Canada Evidence Act, RSC 1985, c C-5 [CEA]. It further submits that there was a proper foundation for theadmission and contends that the EDR data falls in the same category as an observation by a passenger of the speed displayed on aspeedometer, or the use of a video recorder on an iPhone, which would not require expert evidence as to how it functions in order to beadmissible.

The Crown argues that any questions about its reliability properly went to weight, not admissibility. [75] The admissibility of evidence is a question of law reviewed on a correctness standard: R v Mohan, (SCC),[1994] 2 SCR 9 at 20–21, and R v Anaquod, 2021 SKCA 111 at para 45, 75 CR (7th) 111. [76] A discussion of the admissibility of the evidence in question requires an examination of statutory and common law principles. 1. Admission under the CEA [77] The Crown argues that the CDR output was admissible under the provisions of the CEA. It asserts that Cpl.

Green’s testimonyregarding where he obtained the EDR data, the description of how it was downloaded, and his explanation of how it was processedthrough the Bosch CDR software to create the CDR output, combined with s. 31.1 of the CEA, was sufficient for the admission of theCDR output. It contends that any lingering issues regarding reliability would then go to weight. Mr.

Major asserts that threshold reliabilitywas not established for the EDR data or the CDR output. [78] The relevant sections of the CEA are as follows: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable ofsupporting a finding that the electronic document is that which it is purported to be. Application of best evidence rule — electronic documents 31.2(1) The best evidence rule in respect of an electronic document is satisfied (

a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored … . … Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system byor in which an electronic document is recorded or stored is proven (

a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by theelectronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of theelectronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; (

b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking tointroduce it; or (

c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who isnot a party and who did not record or store it under the control of the party seeking to introduce it. [79] The parties did not provide any case law that directly dealt with the admissibility of the CDR output under these provisions ofthe CEA. In the cases referred to in my earlier analysis, there does not appear to have been a challenge to admissibility on this basis. [80]

Section 31.1 of the CEA sets out the evidentiary burden imposed on the tenderer of electronic evidence to prove its authenticity.In R v Durocher, 2019 SKCA 97, 380 CCC (3d) 511 [Durocher], Schwann J.A. discussed the interaction between the common law rulesof admissibility and the above-quoted sections of the CEA: [75] At common law, authentication is a prerequisite to the admissibility of a document at trial.

The following is noted by the authors in[Sidney Lederman, Michelle Fuerst and John Sopinka, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018)] (at 1313): §18.6 When a document is produced at trial, the prerequisite to its admission is authentication. As J. Douglas Ewart put it, “This simplymeans that the trier of fact must be satisfied that the document in issue is what it purports to be” (J.D. Ewart et al., Documentary Evidence

in Canada (Toronto: Carswell, 1984) at 33). Methods of authentication include viva voce testimony, common law rules and presumptions,or statutory instruments. [76] Authentication requires the introduction of some evidence to establish that the document is what it purports to be: C.B. [2019 ONCA380] at para 66, R v Hirsh, 2017 SKCA 14 at paras 18 and 24, 353 CCC (3d) 230 [Hirsch], and R v Donald (1958), (NBCA), 121 CCC 304 (NBCA) at 306.

Authentication “is not onerous and may be established by direct and circumstantial evidence” (C.B. atpara 66). [77] The matter at hand concerns an electronic document and thus engages the Canada Evidence Act, RSC 1985, c C-5 [CEA], separateand apart from the common law rules: R v J.V., 2015 ONCJ 837 at para 3 [J.V.], and R v Soh, 2014 NBQB 20 at paras 32–33, 416 NBR(2d) 328 [Soh].

The provisions of the CEA pertaining to electronic documents facilitate the admission of electronic documents whilescreening for threshold authenticity and integrity, which is a codification of the common law of evidence authentication … . [81] In R v Hirsch, 2017 SKCA 14, 353 CCC (3d) 230, Caldwell J.A. observed that the integrity of an electronic document can beproven pursuant to s. 31.2 to s. 31.6 of the CEA “by establishing the integrity or reliability of the electronic document system in which it isrecorded or stored” (at para 23).

Thus, in order for the CDR output’s integrity to be established under the CEA, there must be proof of theintegrity of the system on which the data is recorded and stored. [82] The level of proof required in terms of the integrity of the system on which the data is recorded or stored is not onerous.

Thestatutory “best evidence rule” in s. 31.2 is “not concerned with requiring original documents to be proven; rather, its objective is to assistwith the verification of the integrity of an electronic document, namely to ensure its contents accurately reflect the information originallyinput into the computer system” (R v Richardson, 2020 NBCA 35 at para 28 [Richardson]).

Further, s. 31.3 sets out certain presumptionswith respect to the integrity of an electronic documents system that apply in the absence of evidence to the contrary including, inter alia,evidence that the electronic documents system was operating properly at the material time. [83] As Schwann J.A. noted in Durocher, “These presumptions are aimed at providing some assurance that no changes in theinformation found in the document have been caused by technical reasons or human intervention” (at para 89).

A court will take a“functional approach” to the level of proof required in order to establish this presumption (at para 90). While the s. 31.3 “presumption canbe satisfied on the basis of lay evidence” in certain circumstances (Richardson at para 31), this appears to be restricted to explanations ofhow relatively commonplace technologies work if a lay witness, who is familiar with their use, can so testify.

In circumstances where anexplanation of the computer-generated information or the accuracy or reliability of the generating technology is required in order toestablish the presumption in s. 31.3, expert evidence will be required: R v Ball, 2019 BCCA 32 at para 69, 371 CCC (3d) 381. [84] With this jurisprudence as a backdrop, it is my view that the provision of the CEA upon which the Crown relies on did notprovide a basis for the Crown to have the CDR output admitted into evidence. I say this for the following reasons. [85]

Section 31.1 of the CEA deals with authenticity. Here there was a sufficient evidentiary foundation to show that the data setsare what they purport to be. The testimony disclosed where the EDR data and the CDR output came from. The EDR data came from theroadside download from the ACM and the CDR output came from processing the EDR data through the Bosch CDR software. CorporalGreen testified as to the origin of the EDR data and how it came to be transformed into the CDR output.

Authenticity was not in issue.However, the mere establishment of authenticity does not address issues as to the reliability of the data, which lay at the heart ofMr. Major’s arguments. [86] Sections 31.2 and 31.3 of the CEA deal with the best evidence rule – is the copy of the data acceptable for evidentiarypurposes? These provisions would only be triggered if there were an issue as to whether the copies of the data that were sought to betendered were inferior and therefore not admissible.

This was also not the case here. [87] However, in my view, s. 31.1, s. 31.2 and s. 31.3 of the CEA – when combined with the evidence of Cpl. Green, as discussed inmore detail below – did not provide a sufficient basis for admissibility. Even considering the CEA in conjunction with Cpl. Green’sevidence, the issue of threshold reliability remained outstanding. 2. Threshold reliability [88] The admissibility of evidence involves a balancing act.

As observed by Binnie J. in R v J.-L.J., 2000 SCC 51, [2000] 2 SCR600, “the criteria for reception are relevance, reliability and necessity measured against the counterweights of consumption of time,prejudice and confusion …” (at para 47). The gatekeeper role of a trial judge is an important concept to keep in mind “in the reception ofnovel” types of evidence (at para 1). It is not disputed that the impugned evidence in the form of the CDR output is relevant.

It is thereliability of both the EDR data and the CDR output that is challenged. [89] In my view, the CDR output is precisely the type of computer-generated information that requires expert evidence to establishthe reliability of the generating technology and the resultant output. There are two separate aspects to this analysis: (

a) Was there a proper evidentiary foundation to conclude that the EDR data was reliable? (

b) Was there a proper evidentiary foundation to conclude that the CDR output was reliable? [90] The Crown submits Kon Construction Ltd. v Terranova Developments Ltd., 2015 ABCA 249, 387 DLR (4th) 623, stands forthe propos

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