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No privacy interest in truck SDM


February 1, 2016
By Mike Novakowski

British Columbia’s highest court has ruled that the owner and driver of a truck involved in a fatal MVA had no privacy interest in its sensing diagnostic module (SDM) after the vehicle was lawfully seized.

In <R. v. Fedan, 2016 BCCA 26> the accused lost control of his pick-up truck on a curve and struck a large tree. Both passengers were killed. The area was lit by streetlights, the weather was overcast and the road was flat, dry and in good repair.

Police seized the vehicle and stored it at a towing compound. Two days later, police obtained a warrant to search the vehicle for evidence such as blood, DNA, personal effects and documents to identify the driver. The search warrant did not specify the seizure and search of the SDM – an electronic device capturing the speed, throttle and braking of the vehicle in the five seconds before an airbag event (eg. collision) or near-deployment event (eg. sudden deceleration).

A police officer not involved in preparing, obtaining or executing the search warrant removed the SDM, embedded underneath the floor of the driver’s seat. Its data was imaged with specialized equipment and revealed that the truck was travelling 106 km/h in the five seconds before the accident (more than twice the speed limit) and had accelerated in the four seconds before the brakes were engaged. The brakes were applied one second before the tree was hit. This data, along with other evidence resulted in several charges being laid, including two counts of dangerous driving causing death.

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A BC Supreme Court judge found removing the SDM and retrieving its data did not breach <s. 8> of the Charter. There was no evidence that Fedan was aware of the SDM, therefore, he did not have a subjective expectation of privacy in the data. Thus, without a subjective expectation of privacy <s. 8> was not triggered and there was no reason to consider whether there was an objective reasonable expectation of privacy. Even if there was a breach, the evidence was admissible under <s. 24(2)>.

The judge found the evidence proved Fedan drove dangerously and convicted him of the two counts of dangerous driving causing death.

Fedan appealed his convictions to the BC Court of Appeal arguing the trial judge erred in not presuming a subjective reasonable expectation of privacy in the SDM, which was objectively reasonable. In his view, he had a presumed expectation of privacy in his vehicle which extended to the SDM, a component akin to an “onboard computer” or “black box.” He had not abandoned this privacy interest in the accident, the data contained within it (precise speed, acceleration and braking) was not visible to the public eye, and its seizure was intrusive since it was not easy to remove.

The Crown, on the other hand, argued the trial judge did not err in finding no subjective expectation of privacy in his vehicle since it was destroyed in the accident and was lawfully seized under <s. 489(2)> of the Criminal Code. As well, the captured data only related to the use of the vehicle (speed, throttle and braking), was limited to a five-second window before the crash and did not record any intimate details of Fedan’s biographical core, lifestyle or personal choices.

Even if there was a subjective expectation of privacy in the SDM and its data, the Crown contended it was not objectively reasonable. Any privacy expectation had all but vanished when the vehicle was destroyed in the accident and was lawfully seized by the police in a criminal investigation. In addition, the SDM data would have been visible to any witness present to observe the event, was highly relevant and reliable and its removal was not intrusive because the vehicle had already been destroyed.

{Reasonable expectation of privacy}

of the Charter is only engaged if an accused can establish a reasonable expectation of privacy in the subject matter of the seizure and search. A subjective expectation requires a finding that an individual had or was presumed to have had an expectation of privacy in the content of the subject matter of the search which was objectively reasonable on the totality of the circumstances, considering a number of factors.
protects privacy that includes personal (bodily integrity), territorial (such as a home or vehicle) and informational (personal information that may reveal intimate details about a person).

The appeal court found the vehicle had been lawfully seized without a warrant under <s. 489(2)> and stored in the towing compound. “In some circumstances, an item can be seized without a warrant,” said Justice Smith.

“Section 489(2) authorizes the seizure of any thing without a warrant where an officer in the execution of his or her duties reasonably believes that a thing: (i) has been obtained by the commission of an offence; (ii) has been used in the commission of an offence; or (iii) will afford evidence in respect of an offence. There must be an evidentiary basis to justify the use of the extended power to seize under s. 489(2)(a), (b) or (c).”

This lawful seizure of the vehicle included the right to examine it and extinguished any privacy interest Fedan may have had in the SDM and its data. Although Fedan could have been presumed to have a subjective expectation of privacy in his vehicle, which extended to the SDM, this privacy interest was not objectively reasonable.

“I am unable to see how [the accused] could have any residual territorial privacy interest in the SDM after the vehicle was lawfully seized or any informational privacy interest in the SDM data as, standing alone, the data provided no personal identifiers that could link [the accused] to the captured data” said Smith.

“He therefore had no reasonable expectation of privacy in the SDM or its data after the vehicle was lawfully seized.”

The SDM was different than a personal computer or “black box” such that police would need a warrant specifically authorizing its search, as found in <R. v. Vu, 2013 SCC 60> with respect to searches of personal computers and smart phones. Nor was Fedan entitled to privacy as anonymity, as identified in <R. v. Spencer, 2014 SCC 41,> because there was nothing private about his manner of driving on a public road.

<[I]n this case, the data recovered by the SDM provided no personal information about Mr. Fedan. The captured information pertained only to the use of the vehicle in a five-second window of time before a deployment or near-deployment event. It did not capture any information that revealed intimate details of Mr. Fedan’s biographical core, and in particular about who was driving the car. Further evidence had to be obtained to connect the driving of his vehicle to Mr. Fedan himself. In my view, Mr. Fedan’s informational privacy interests were not engaged by the downloading of the SDM data.

Nor do I accept Mr. Fedan’s analogy between the SDM and a personal computer or a “black box” and therefore do not find the reasoning in Vu to be applicable. As noted, the data recorded by the device did not extend to personal identifiers of the driver of the vehicle. Most significantly it 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”> [reference omitted, para. 82].

And further:

<Again, after undertaking a normative assessment of the reasonableness of Mr. Fedan’s privacy claim I find it difficult to see how an operator of a vehicle might be found to have reasonably intended the last five seconds of information pertaining to his or her driving before a collision to be private. Driving on a public road is a highly regulated activity that is open to public view, as evidenced by Mr. Schneider witnessing 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…

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> [paras. 84-86].

There was no error in the trial judge’s finding that Fedan’s <s. 8> Charter right was not violated. Even if there was a Charter breach, the trial judge did not err in admitting the evidence under <s. 24(2)>.

The SDM and its data was properly admitted as evidence and Fedan’s conviction appeal was dismissed.


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