In a recent case before the Ontario Superior Court, an individual was charged with two counts of dangerous driving causing bodily harm. The charges arose out of a collision at an intersection as one the vehicles was attempting to make a left turn. At the outset of his trial, the accused brought an application to exclude evidence obtained by the police as a result of a breach of his rights under s. 8 of the Charter.
On behalf of the accused, counsel argued that he enjoyed a reasonable expectation of privacy in both his vehicle and the data stored within its airbag control module (“ACM”). She submitted that by entering his car, seizing the module, and then downloading the data contained within it, the police intruded on his reasonable expectation of privacy. The Crown argued that the police lawfully seized the vehicle. A seizure necessarily involves examining the thing taken, which entitled police to enter the vehicle and remove the ACM. The Crown further contended that because an ACM only stores data about the vehicle’s operation in the five seconds immediately preceding a collision, it is not subject to a reasonable expectation of privacy. Therefore, the police did not intrude upon a privacy interest protected by s. 8 of the Charter by removing it from the vehicle and downloading the data stored within it. The police, therefore, did not require a warrant.
The trial judge accepted the defence argument. Given that the police intruded upon the accused’s reasonable expectation of privacy by entering his vehicle, taking the ACM, and downloading its data, all without the authority of a warrant or his consent, these actions presumptively violated his right to be secure against unreasonable search or seizure. The results of the ACM were ultimately excluded from the trial.