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.