In a recent opinion that may have broader reach in the world of connected cars the Ontario Court of Appeal unanimously held there is no expectation of information privacy in data contained in a motor vehicle event data recorder. Although the ruling does not resolve a conflict in Canadian constitutional law among other provinces it is likely to have a controlling influence on future litigation and the development of jurisprudence that touches on the privacy rights of owners and operators in motor vehicles.

1. Introduction

On August 16, 2024, the Ontario Court of Appeal released the unanimous opinion in R. v. Attard holding there is no objectively reasonable expectation of privacy in crash data retrieved from the event data recorder of a motor vehicle seized as evidence of a criminal offence. (here) An event data recorder (EDR) is a device installed on some motor vehicles to record information related to a traffic accident. Information from these devices, often called crash data retrieval, can be collected after an accident and analyzed to help determine the bahaviour of a vehicle during and after an accident. (here) In this case, the device collected data with respect to the speed, throttle and braking of the vehicle in the five seconds before the airbag deployed. In reasons delivered by Justice Eileen Gillese the ruling settled a conflict in Canadian constitutional law as applied by the courts of Ontario although the issue remains open in some other Canadian provinces including Alberta.

2. Background

On March 23, 2018, a serious motor vehicle collision occurred at the intersection of Queen Street East and Highway 50 in Brampton, Ontario. Officer Jeff Ball of the Major Collision Bureau arrived at the scene – described by the trial judge as one of “carnage”. Officer Ball spoke with witnesses including an off-duty police officer who recorded the collision on his dashcam. The dashcam footage showed that Mr. Attard’s vehicle  was “driving faster than the other southbound cars.” Later that evening, the two vehicles were towed to a police storage facility. Officer Ball testified at trial that when he arrived on scene “he had a suspicion that excessive speed was involved in the accident”. But by the time the vehicles were seized “he had concluded that he might be investigating the offence of dangerous driving.” He seized the vehicles under s. 489(2) of the Criminal Code because he “believed that those cars contained evidence of the offence”. He also testified that he had made seizures under that section before and was following the ruling of the British Columbia Court of Appeal in R. v. Fedan. (here)

Five days after the accident, the EDRs were extracted from both vehicles and the crash data downloaded. The data showed the vehicles’ speed, engine RPM, motor RPM, brake pattern, brake oil pressure, steering input, shift position, drive mode, cruise control and longitudinal/latitudinal acceleration for the five seconds prior to the accident. The data from Mr. Attard’s vehicle showed he was going 120 km/hr., in an 80 kilometre zone, 4.75 seconds before the crash; accelerated to 130 km/hr. 0.75 seconds before the crash; and, was going 113 km/hr. at the time of impact. The vehicle he struck “spun 540 degrees” after impact. It had been stopped in the dedicated left turn lane to turn west on to Queen Street East. Mr. Attard’s vehicle slid across the road, over a median, across a sidewalk and flipped on its roof as it rolled into a ditch. Both motorists were injured.

3. A Conflict in the Law

The opinions of two Canadian provincial courts of appeal have held there is no reasonable expectation of privacy in EDR data following lawful seizure of a car as evidence of a criminal offence – the British Columbia Court of Appeal in Fedan mentioned previously and the Saskatchewan Court of Appeal in R. v. Major. (here) However, the trial courts of Ontario have been divided. In Attard, the trial judge relied on R. v. Hamilton and R. v. Glenfield to find the expectation of privacy in EDR data is objectively reasonable. (here and here) Two other Ontario courts came to the same conclusion in R. v. Patterson and R. v. Yogeswaran. (here and here) In conflicting rulings, Ontario trial courts in R. v. Anstie and R. v. J.S. came to the same conclusion as in Fedan and Major. (here and here) There is no reasonable expectation of privacy in EDR data and any territorial privacy interest is extinguished after a seizure under s. 489(2) of the Code which authorizes a police officer to seize “any thing” without a warrant that the officer believes on reasonable grounds was used in the commission of an offence or will afford evidence.

4. The Attard Opinion

In the reasons on an exclusion motion under s. 24(2) of the Canadian Charter of Rights and Freedoms, the trial judge held that, while the “thing” seized under s. 489(2) can include a motor vehicle, the police must have reasonable grounds to believe the thing will “afford evidence with respect to an offence”. However, when Officer Ball seized Mr. Attard’s vehicle he only had a suspicion about excessive speed rather than reasonable grounds to believe the collision was the result of dangerous driving. Officer Ball relied on s. 489(2) retrospectively and his notes did not mention a criminal investigation into dangerous driving. Even if the officer did rely on s. 489(2), the vehicle should not be treated as a “thing”. Relying on the opinion of the Supreme Court of Canada in R. v. Belnavis the trial judge found that motor vehicles are “places” rather than “things” in which there is a reasonable but reduced expectation of territorial privacy. If the EDR could be searched under a s. 489(2) seizure on any allegation of dangerous driving, the police could seize “whatever might be in the car without prior judicial authorization”. The trial judge concluded that “the category of information that is accurately stored in the EDR is not exposed to the public and is inherently different than the tangible mechanical parts of a vehicle.”

The Ontario Court of Appeal reversed, following Fedan and Major, holding there is no reasonable expectation of privacy in EDR data. Although Officer Ball said his initial impression of the accident scene raised a “suspicion” that the crash was due to excessive speed, his suspicion developed into reasonable grounds as a result of subsequent investigation including review of the dashcam footage, interviews of witnesses, and the damage sustained by the vehicles and their positions in the intersection. “[A]n objective consideration of the totality of the circumstances bears out that, after investigating the scene, Officer Ball’s initial suspicion had solidified into belief on reasonable grounds, and the trial judge erred in law in concluding otherwise,” said Justice Gillese. The police had reasonable grounds to seize Mr. Attard’s vehicle under s. 489(2) of the Code and the seizure was therefore lawful. The lawful seizure extinguished any territorial privacy interest in the vehicle “and its component parts” including the EDR. However, that did not end the analysis.

Mr. Attard claimed an informational privacy interest in the crash data. The parties agreed on the essential aspects of the test but for one question: was his subjective expectation of privacy in the crash data objectively reasonable? In concluding that the expectation of privacy was not objectively reasonable, Justice Gillese described an EDR as completely objective. “It contains no information going to the driver’s biological core, lifestyle, or personal choices, nor information that could be said to directly compromise his ‘dignity, integrity and autonomy’ […].” There is no personal information in an EDR akin to that contained on a computer, cell phone or tracking device. As the Saskatchewan Court of Appeal said in Major, the data provides “no independent insight into the behaviour of anyone in the car”. The ERD data “provides no personal identifiers” that could link the driver to its captured data which is about the manner of driving – a public, highly regulated activity. In this case, the driving was caught on camera and dashcam. While the data contained more detailed information than what a member of the public might observe, the information is qualitatively similar – the speed of the vehicle and whether it was braking.

5. Conclusion

The state of the law in Ontario, then, is this. There is no reasonable expectation of information privacy in EDR data and any limited territiorial privacy interest is extinguished by a lawful seizure under s. 489(2) of the Code. As a result of the ruling in Attard, it appears likely that the courts of Alberta would follow Fedan and Major where the Supreme Court of Canada denied leave to appeal in both cases. However, I cannot conclude this post without leaving you with this observation. Justice Gillese emphasized, following Major, that EDR data “provides no independent insight into the bahaviours of anyone in the car.” But isn’t that the whole point of this litigation? Isn’t that why the Crown sought to introduce the data into evidence in the first place? The EDR data did provide insight into the behaviour of the driver. It provided critical evidence the dashcam could not – that he was speeding!