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Case Summary: R. v. Glenfield
Defence + Indemnity

Do police need a warrant to access the data on a vehicle’s airbag control module without the owner or driver’s permission?   

R. v. Glenfield, [2015] O.J. No. 1212, per Hambly, J. [4175]   

I. FACTS AND ISSUES   

The Accused, Glenfield, was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a breath sample arising from a motor vehicle accident on December 22, 2011. Glenfield was driving a 2010 Jeep Cherokee owned by his employer (a Jeep dealership) but designated for his exclusive use. He drove west on Gerber Road through a stop sign and struck the Huber Dodge Caravan that was proceeding south on Nafziger Road. Just prior to the accident scene, Glenfield had crossed a bridge over a creek (135 metres back from the scene) and then went uphill towards the intersection. There were signs posted warning of the approaching intersection. Both vehicles were extensively damaged. An 11 year old passenger in the Huber van was killed.

There was evidence that Glenfield had consumed alcohol before the accident. He failed a roadside breath test. After Glenfield failed the roadside breath test, he was arrested and transported to the police detachment.

Subsequently, Cst. Stotts entered the Jeep to download information from the Event Data Recorder (EDR) that was part of the Airbag Control Module (ACM). He did this without obtaining consent of Glenfield. He felt that it was necessary to download the data at the scene to avoid the EDR being activated by another event (such as being jostled during a towing process) which might erase the EDR data relating to the collision. To access the EDR, Cst. Stotts “forcibly removed the cover in the front seat area of the Jeep at the console which exposed the ACM” and “made no attempt to remove the cover by taking out the screws that held it in place.” He then downloaded the data to his own computer. He did not download the data from the Huber van because his computer equipment was not compatible with the EDR in that vehicle.

The EDR data from Glenfield’s vehicle showed that his Jeep decelerated from 106 kms/hr at 5 seconds prior to the accident (and 134 metres from the point of impact) down to 86 kms/hr (2 metres from the point of impact) at 0.1 seconds prior to the collision. It showed that the accelerator was 0 percent at between 5 and .08 seconds before impact. It increased to 2 percent at 0.6 seconds before impact, and to 37.8 percent at 0.3 seconds before impact, dropping down to 32.3 percent at 0.2 seconds prior to impact. The accelerator was at 0 percent at 0.1 seconds before impact. The Court noted “that the data had indicated Glenfield accelerated at the hill west of the intersection immediately before the accident” and “did not activate his brakes in the 5 seconds before the accident.” 

The Crown called an expert motor vehicle collision analyst who gave the opinion that aggressive driving on the part of Glenfield with a long episode of in attention explained why he ran the stop sign, based in part on the EDR data.

The downloading of the EDR took place before the decision in R. v. Hamilton [2014] O.J. No. 747 was issued (which held that the owner of a vehicle has a privacy interest in the vehicle’s EDR data, such that police must obtain a warrant to download it).

At trial, Glenfield applied to have the EDR data excluded on the basis that it had been the result of an illegal search, contrary to his Charter, section 8 rights against unreasonable search and seizure.

II. HELD: For the Crown; EDR data admitted 

1. The Court held that Cst. Stotts’ activity in accessing and downloading the data from the EDR was a warrantless search and thus presumptively unreasonable. 

2. The Court held that Glenfield had a subjective expectation of privacy in the subject matter of the search to qualify for section 8 protection, noting that the concept of reasonableness does not add or detract from whether or not the accused had a subjective expectation of privacy.

3. Glenfield’s expectation of privacy was held to be objectively reasonable.

4. The Court considered the factors outlined in R. v. Hamilton to conclude that Glenfield’s section 8 Charter Rights had been breached by the warrantless search of his EDR.

(a) It was held that in entering the Glenfield vehicle the police committed a trespass.

(b) It was held that the information in the EDR module, revealing precise details of Glenfield’s driving, was “private information to which the police should not automatically have access” (para. 49).

(c) It was held that the information on the EDR was not in public view, was obtained by an intrusive technique that was objectively unreasonable. The Court held that the police had a right to enter the vehicle to deactivate the power source to the EDR to protect it from a risk of recorded information being erased in a subsequent jostling incident, and to allow police to seek a warrant to actually download the data on the device (para. 51 – 54).

5. However, the Court held that the evidence ought not to be excluded, despite the Charter breach, based on the three-­part test set out in R. v. Grant [2009] 2 S.C.R. 353.

(a) The Court held that the seriousness of the police Charter breach was at the “low end of the spectrum.” Cst. Stotts did not know that Glenfield had been arrested when he downloaded the data. He acted in accordance with his police agency’s policies which allowed for search and seizure of an EDR without a warrant, and this was done before the Hamilton case was decided.

(b) The impact of the accused Charter­-protected interest was held to be “minimal.”

(c) The Court held that society’s interest in the case being adjudicated on its merits “could scarcely be overstated.” Even though it would not “gut” the prosecution case, the charges involved the death of an 11 year old child.

III. COMMENTARY: A key point to note about this case is that it held that police access of Airbag Control Module data involves a breach of the driver’s section 8 Charter Rights. The Grant analysis as to whether or not the evidence should be excluded could go differently today. A key factor in the Court’s ruling was that the search took place long before case law was decided that stressed the importance of privacy in digital devices (relating to search and seizure of same) and the Hamilton case which held that a warrant was required.

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