Electronic data from vehicle ruled properly removed, but not properly admitted

In R. v. Major, the accused had been convicted at trial of dangerous driving and criminal negligence, stemming from a motor vehicle accident in which he was the driver of a pickup truck that collided with another truck. Two RCMP forensic collision reconstructionists attended at the scene of the horrific accident, and removed the factory-installed airbag control module (ACM) and accessed data from the event data recorded (EDR), which is a component of the ACM. They created an image of the data on an RCMP computer and analyzed it, which revealed that the accused’s truck 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.” Over the accused’s objections, the EDR data and the reconstructionists’ testimony about it was admitted at trial and he was convicted. On appeal he renewed these objections.

The Court of Appeal first turned to the question of whether the removal of the ACM and accessing of the EDR had breached the accused’s rights under s. 8 of the Charter. After reviewing the essential s. 8 law on search and seizure, Tholl J.A. (for a unanimous court) canvassed two competing lines of authority specifically on the issue of s. 8 breaches regarding ACM and EDR seizure. The first stemmed from the case of R v Hamilton, 2014 ONSC 447, and in these cases the courts tended to find that seizing the data without consent or a warrant amounted to a s. 8 breach, on the basis that the accused had a reasonable expectation of privacy in the vehicle which covered the data (despite its being relatively obscure or unknown to most drivers). The second line of authority stemmed from the case of R v Fedan, 2016 BCCA 26, and in these cases the courts tended to find that it could be presumed that an accused had a subjective expectation of privacy in the data due to its presence in the vehicle, but that such an expectation of privacy was not objectively reasonable “since no information could be gleaned from [the ACM and EDR] that revealed any intimate details about the accused or any information about who was driving the vehicle.”

Turning to this case, the Court held that the accused had a limited interest in the data, insofar as it was embedded in his vehicle, and that in accordance with the Fedan line of cases it could be presumed without proof (i.e., the accused had not testified on the topic) that he had a subjective expectation of privacy in everything to do with his personal vehicle. However, the court was not convinced that the expectation of privacy was objectively reasonable:

[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.

Accordingly, there had been no section 8 breach.

Justice Tholl then turned to whether the data had been properly admitted. While the Crown argued that it was admissible as an electronic record under ss. 31.1-31.8 of the Canada Evidence Act, Tholl J.A. pointed out [astutely, in our view: eds.] that these provisions simply provided for authentication and the baseline integrity of the data, and that a proper evidentiary foundation still had to be laid for admissibility. The Crown further argued that technology-generated data, which was commonly relied upon for the safety of the operation of mechanical devices, was prima facie reliable enough to be admissible. However, Tholl J.A. also took issue with this argument:

[92]           It must be remembered that the data being accessed in the matter at hand was contained in a component of a motor vehicle’s safety system that is unfamiliar to the average person. It is not comparable to a vehicle speedometer, a GPS system, an iPhone, or an Excel spreadsheet. For these four latter pieces of technology, while the average user probably has little knowledge of how they actually work from an internal perspective, they are so ubiquitous that they are easily understood by lay people who feel comfortable with their reliability, based on their commonplace and routine usage. The EDR data and the CDR output do not fall into this same category. By way of illustration, I query what a trier of fact could make of the ten pages of hexadecimal data dump contained at pages 25 to 34 of the output from the Bosch CDR software that was filed as an exhibit.

[93]           The EDR data is created using a process unknown to the average person, is not accessible by an owner of the vehicle or their mechanic, and can only be extracted with highly specialized third-party software. In this case, there was no evidence as to how the data was actually gathered, what margin of error might exist and what circumstances could influence its accuracy. There was no evidence as to whether the EDR component recorded information accurately. There was also no explanation of any anomalies found in the EDR data.

 

In this case, while the reconstructionist who testified for the Crown had been qualified as an expert in accident reconstruction, the trial judge had refused to qualify him as an expert as regarded the EDR data, in particular, and indeed he had been unable to answer some questions on the analysis of the data that he and his colleague had produced. Without such expert opinion (and in spite of some judicial opinion to the contrary), the judge had erred in admitting it:

[101]      While at some point in the future the use and understanding of these data recorders may become so commonplace that expert testimony is not required to establish their reliability, it is sufficient for me to find that this is not the case now. I am left to conclude that the bare fact that data has been recorded in an EDR and extracted by software does not establish its reliability. Thus, without evidence from a properly qualified expert as to how the system accurately records data and creates accurate output, the CDR output did not meet the threshold required for admission [….]

[102]      I conclude that a properly qualified expert witness was required in order for the CDR output to be admitted at trial. The technology has not yet progressed to the point where it falls into the same category as a speedometer, video recorder, wrist-watch, spreadsheet program, or similar item of everyday use. Absent consent by an accused, threshold reliability must be established by the Crown before such evidence may be admitted. The trial judge specifically ruled that Cpl. Green could not provide the required expert opinion evidence in relation to this aspect of the evidence. As such, there was insufficient evidence to establish the threshold reliability of the EDR data or the CDR output.

Given that the data had been the primary evidence of the speed of the vehicle at the time of the accident – a central fact – the error had rendered the verdict unsafe and the case had to be returned for a new trial.