Little Black Box: When smart devices aren’t so smart

When a defence lawyer gets a new file that involves the search and seizure of evidence from their client, the first thing they will want to investigate is if the search was lawful. An unlawful search can often result in evidence being excluded from Trial. Laws surrounding search and seizure are ever-changing, but the fundamental rights laid out in our Canadian Charter of Rights and Freedoms are enduring. Section 8 of the Charter protects Canadians from unreasonable search and seizure, which means that police are often required to obtain a warrant (judicial authorization) before proceeding to collect any evidence they wish to use at Trial.

There have been several pivotal developments in this area of the law recently, one coming from the Court of Appeal. Rodney Fedan of Kamloops, B.C., lost the appeal of his dangerous driving causing death conviction after he argued that his Charter rights were violated when RCMP collected information from his truck’s “little black box” without a warrant. The little black box I am referring to is known as a Sensing Diagnostic Module (“SDM”); they are commonly installed by manufacturers in passenger vehicles. Their main purpose is to monitor the condition/deployment of the airbags, but they have become increasingly more intelligent over the past decade, and are coveted by accident re-constructionists for the data they record and store. Re-constructionists can download the data from the “little black box” and use it to develop insight into the nature of a motor vehicle accident. In Mr. Fedan’s case, the 5 seconds of data recorded by the SDM immediately preceding the crash (which is generally all they record) was all that was needed to prove that Mr. Fedan was travelling at approximately 106 km/hour when he veered off of the winding road he and his passengers. The ensuing accident resulted in the death of 22 year old Brittany Plotnikoff and 38 year old Ken Craigdallie.

Fedan argued that his reasonable expectation of privacy was breached when RCMP officers seized the data from his SDM without a warrant. Unfortunately for him, 3 B.C. Court of Appeal Judges disagreed when they held that the Supreme Court Judge was reasonable in allowing the material into evidence at Trial.

It is crucial to note that Mr. Fedan was not aware that the SDM was capable of downloading and storing data that would be useful to the RCMP in such an investigation. Since he had no knowledge of the data’s existence, he could have no reasonable expectation over its privacy. This is in stark contrast to the level of privacy a person would expect to have over the information stored on their computer or cellphone – warrants are generally required to seize and search these devices (unless searching them is considered to be incidental to arrest).

When the case was originally heard in October 2014, Mr. Fedan was sentenced to 3 years in jail and was banned for driving from 3 years. He was not convicted of impaired driving after the blood samples obtained were ruled to be inadmissible.

Impaired driving cases are complex, and are taken extremely serious by the police and the Courts. If you are facing charges related to drinking and driving, contact Jason and David Tarnow for a free consultation. Our office is conveniently located in central Richmond, easily accessible from anywhere in the lower mainland.

RCMP raid marijuana dispensaries on Vancouver Island

On Tuesday, December 1, 2015, RCMP made good on a threat to bust several pot dispensaries in the Nanaimo area of Vancouver Island.

At least 10 shops had received warnings in mid-November from the Mounties to cease all operations, or risk being raided, resulting in fines and/or arrests being made. It has been reported that 2 of those shops closed their businesses voluntarily upon request.

The RCMP declined to provide names of which dispensaries were entered into, but general managers of three shops located in Nanaimo confirmed to the media that they were the subject of search warrants.

Trees Dispensary, Phoenix Pain Management, and Natures Source Society all had search warrants executed at their establishments on December 1st. Phoenix Pain Management confirmed that two of their members, both senior citizens, were arrested on site.

The RCMP issued a statement advising that their motivation in raiding the dispensaries came as a result of public complaints that the shops were operating illegally and in an unsavoury manner. It is unknown if the RCMP will be seeking search warrants in order to enter and shut down the remaining businesses that are allegedly running illegally.

The choice to seek judicial authorization to raid the shops comes as a surprise to some, after Vancouver’s decision earlier this year to zone and licence dispensaries that are operating in compliance with certain guidelines.  The City’s decision requires that all marijuana shops apply for a business licence as the first step in becoming regulated.

In October, the City announced that out of 177 applications, 11 had passed the first stage, and would be able to apply for permits. The hundreds of applications that did not pass the first stage were in contravention of various regulations, including their proximity to schools, community centres, and each other.

If you have had any criminal charges for controlled substances and/or drugs, do not hesitate to call our law office. We assist people in Metro Vancouver and all corners of British Columbia.