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Use a False Name, Lose Privacy Protection

12 Dec 2022 9:34 AM | CAN-TECH Law (Administrator)

Ontario Court of Appeal holds that accused had no standing to challenge search of vehicle he rented under a false name

In R. v. Dosanjh, the accused was convicted of first degree murder, arising from having shot the victim and escaped in a “getaway car” moments later. Among the evidence against him was data taken from the vehicle’s “infotainment system” that, among things, tracked the movement of the car. At trial the tracking data was admitted after the trial judge refused to exclude the evidence despite finding a breach of s. 8 of the Charter. On appeal, the accused argued that the trial judge had made various errors in this analysis, and the Crown countered with the argument that, since the accused had rented the car using a false name, the trial judge had erred in finding the accused even had standing to raise the s. 8 breach. The Court of Appeal agreed with the Crown, holding that the trial judge had erred in finding that the accused’s subjective expectation of privacy in the data was also objectively reasonable, and without this the accused had no standing to argue the breach.

For the Court Fairburn ACJO held:

[124]   Not all biographical core information is made equal. In relation to each set of data, the trial judge should have calibrated the degree to which the appellant’s biographical core of personal information was engaged. We are not talking here about medical records, private communications or the like, all of which presumptively contain a high degree of personal information. Rather, we are talking about information that rests further down the privacy line.

[125]   As for the contact list, it was not even the appellant’s contact list. While it may have held the appellant’s number and name, thereby connecting the appellant to Mr. Passi, there was nothing more that could have engaged the appellant’s privacy interest.

[126]   While I accept that GPS data stored in an Infotainment system can inform where a car was and, by implication, where the driver was during a specific period of time, it is really just a form of tracking data. To this end, it has been long established that tracking information “is a less intrusive means of surveillance than electronic audio or video surveillance”: R. v. Wise, [1992] 1 S.C.R. 527, at para. 48. The somewhat diminished privacy interest engaged by tracking data is reflected in the fact that, even where an individual has standing in relation to that data, the police can obtain a judicial authorization to have it produced on the lower standard of “reasonable grounds to suspect”: Criminal Code, ss. 487.017. As well, also engaging the lesser standard of suspicion, the police can obtain an authorization to install a tracking device on a vehicle and have that vehicle tracked in real time for lengthy periods: Criminal Code, s. 492.2(1).

[127]   Therefore, there exists both a jurisprudential and legislative recognition that, while tracking data may engage a biographical core of personal information, that data rests a good distance away from the more intimately personal end of the privacy spectrum. As part of the “totality of circumstances”, the trial judge should have considered these factors when calibrating the objective reasonableness of the appellant’s subjective privacy interest.

[128]   As well, the trial judge should have considered other factors informing the objective analysis. What is absent from his reasoning is how the appellant came to be in possession of the QX60 – which was relevant to an assessment of both the place where the search occurred and the appellant’s control over the subject matter.

[129]   It was the appellant’s burden to establish on a balance of probabilities that he had a reasonable expectation of privacy in the subject matter of the search. Although he did not have to demonstrate a proprietary interest in the vehicle, he had to establish something beyond a tenuous connection to it…. By holding himself out to the rental agency as Jaspinder Nagra – personating Jaspinder Nagra – the appellant came into fraudulent possession of the QX60, thereby rendering his connection to the vehicle tenuous at best. Not only was the appellant in unlawful possession of the QX60 when it was collecting and storing data on the Infotainment system, but he had no colour of right over the vehicle – no excuse for his possession. In short, he could neither use the car nor exclude others from it. 

[130]   In fact, and in the most minimalist of terms, he was a trespasser in the QX60 when it was collecting and storing the subject matter of the search: Simpson, at paras. 50-51; R. v. Caza, 2005 BCCA 318, 198 C.C.C. (3d) 273, at paras. 32-33. The fact that the appellant fraudulently accessed the place and his lack of control over the QX60 – without a colour of right – are relevant circumstances informing whether he could objectively expect privacy in the data generated by his use of the QX60.

[….]

[134]   The question is whether Canadians ought to have a reasonable expectation of privacy in GPS data and the contents of a friend’s contact list, all of which has been created and stored in a vehicle they have, in essence, stolen. The answer to this question does not depend on whether the information contains evidence of illegal activity.

[135]   The answer to this question is: “no”.

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

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

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

  

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