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. Fedan, 2016 BCCA 26, per Smith, J.A. 
I. FACTS AND ISSUES
The Accused, Fedan, appealed his convictions for two counts of dangerous driving causing death arising from a single vehicle accident that occurred in the early morning hours of March 20, 2010. Fedan lost control of his pickup truck in attempting to negotiate a curve in a residential area of Kamloops where the speed limit was 50 km/hour. Two of his passengers died as a result of the accident.
Fedan’s vehicle was seized by the police pursuant to the Criminal Code, R.S.C. 1985, c. C46, Section 489(2) and stored at a towing compound. Police members in charge of the criminal investigation obtained a warrant to conduct a forensic search of the vehicle for blood, DNA, fingerprints, personal effects, documents relating to the registration, insurance and maintenance of the truck. The warrant did not expressly authorize the seizure of the airbag control module (referred to in this case as a Sensing Diagnostic Module or SDM).
Independent of the police members in charge of the criminal investigation, Sgt. Noonan (a police collision analyst and accident reconstruction expert) attended at the towing yard, removed the SDM from the truck (where it was bolted to the floor underneath the driver’s seat) and downloaded its data. He testified that he did not obtain a warrant because he had been advised back in 2005 by the Department of Justice that a search warrant was not required to access an SDM. After the search of Fedan’s SDM R. v. Hamilton, 2014 ONSC 447 was decided and Sgt. Noonan learned of it. That case held that a search warrant was required such that the removal of the SDM from the vehicle amounted to a breach of the driver’s rights against unreasonable search and seizure under Section 8 of the Charter.
The Court noted that the primary function of the SDM was to deploy the airbags upon a “deployment event” (a collision) or a “near deployment event” (a sudden deceleration in speed). Its secondary function was to capture and store data with respect to the speed, throttle and braking of the vehicle in the five seconds before the event or near deployment event. It was noted that the “data… can only be imaged with highly specialized equipment that is generally not in the possession of the ordinary driver.” In this case, although the airbags were not deployed, a near deployment event occurred when the vehicle struck a tree which triggered the SDM to capture the data in question.
The data revealed that in the five seconds prior to the accident, the vehicle sped up from 91.71 km/hour to a speed of 106.19 km/hour (two seconds before the impact with the tree), that the throttle was at 82 percent in the four seconds before the brakes were engaged and that the brakes had only been applied in the last second before the collision.
At trial, the Accused argued that the data downloaded from the SDM was inadmissible because it had been obtained by police in breach of the Accused’s Section 8 Charter rights. A voir dire was held to determine the admissibility of the data. Fedan did not testify and there was no evidence that he was aware of or understood the purpose of the SDM.
The trial judge held that Fedan’s Charter rights had not been breached. She found that there was no evidence that Fedan was aware of the SDM and therefore he had not established a subjective expectation of privacy with respect to the data. She distinguished the Hamilton case as a case where the accused was an off-duty police officer who testified that in the course of his police duties he had learned that his vehicle contained an SDM and as to what information it stored such that he had formed a belief that the data stored on it belonged to him. Also, the trial judge held that Hamilton was wrongly decided in comparing the SDM to an “onboard computer” since it did not contain core biographical data with respect to the driver of the vehicle. Without a subjective expectation of privacy, the trial judge held that Section 8 of the Charter was not engaged and did not go on to consider the other factors involved with respect to the reasonableness of the search.
In the alternative, the trial judge held that even if Fedan’s Section 8 Charter rights had been breached, she would not exclude the evidence pursuant to Section 24(2) of the Charter because Sgt. Noonan had acted in good faith based on legal advice, the impact on Fedan’s privacy interest was held to be minimal since the vehicle had been completely destroyed and had been lawfully seized and the evidence was reliable and essential to the Crown’s case.
Fedan appealed, primarily arguing that the trial judge had erred in admitting the evidence of the SDM data.
II. HELD: For the Crown; appeal dismissed
1. The Court held that Section 8 of the Charter guarantees the right to be secure from unreasonable search and seizure, which “is a personal right that protects people, not places” and “is only engaged if the applicant can establish a reasonable expectation of privacy in the subject matter of the seizure and search” (para. 62).
2. The Court held that privacy interests protected by Section 8 cover personal, territorial and informational privacy:
64 The privacy interests protected by Section 8 include personal privacy, territorial privacy and informational privacy: Tessling [R. v. Tessling, 2004 SCC 67] at para. 20; Patrick [R. v. Patrick, 2009 SCC 17] at para. 32; and Spencer [R. v. Spencer, 2014 SCC 43] at para. 35. These three broad categories of privacy interests are “not strict or mutually exclusive” and often overlap (Spencer at para. 35). Their usefulness is in providing “analytical tools” for a “principled” and “purposive” analysis of when a reasonable expectation of privacy is engaged: Tessling at para. 19; Spencer at para. 35. In this case, Mr. Fedan’s personal privacy interest, which protects bodily integrity, was not engaged; the inquiry was limited to whether he had a territorial and/or informational privacy interest in the SDM and its data.
65 Territorial privacy has been recognized in a “nuanced hierarchy” with a home at the top (R. v. Feeney,  2 S.C.R. 13 (S.C.C.)) and a vehicle near the bottom (Wise [R. v. Wise  1 S.C.R. 527]; Mellenthin [ ]R. v. Mellenthin,  3 S.C.R. 615). In Wise at 534, the Court held there was a significantly reduced expectation of privacy in a vehicle because of the highly regulated aspect of driving on a public road:
Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers. A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one’s home or office.
66 Similarly in Belnavis [R. v. Belnavais,  3 S.C.R. 341], the Court echoed the comments in Wise with respect to the reduced expectation of privacy in a vehicle:
 A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the same expectation of a vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the good of all, be greatly reduced. ...
67 Informational privacy is about protecting personal information that may reveal intimate details of the biographical core, lifestyle and personal choices of the individual, or that directly compromises the individual’s “dignity, integrity and autonomy:” R. v. Plant,  3 S.C.R. 281 (S.C.C.), at 293. In that case, the accused was found to have no reasonable expectation of privacy in computer records revealing the electricity consumption of his residence because he had no control over or access to the content of the information. Spencer introduced an additional facet to informational privacy: privacy as anonymity. While identifying the primary privacy interest as informational, the Court in Spencer also recognized that an overlap existed between the accused’s informational and territorial privacy as the computer that was the subject matter of the warrantless search was situated in the accused’s home.
3. The Court held that to qualify for Section 8 protection, the Accused must have a subjective expectation of privacy in the subject matter that is objectively reasonable, but that the courts should not place too much emphasis on the need for a subjective expectation of privacy because expectation of privacy “is a normative rather than a descriptive standard:”
63 A reasonable expectation of privacy requires a subjective expectation of privacy that is objectively reasonable. However, as was noted in Tessling:
 ... The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by s. 8 to the values of a free and democratic society.... Suggestions that a diminished subjective expectation of privacy should automatically result in a lowering of constitutional protection should therefore be opposed. It is one thing to say that a person who puts out the garbage has no reasonable expectation of privacy in it. It is quite another to say that someone who fears their telephone is bugged no longer has a subjective expectation of and thereby forfeits the protection of Section 8. Expectation of privacy is a normative rather than a descriptive standard.
. . .
68 A subjective expectation of privacy requires a finding that an individual had or is presumed to have had an expectation of privacy in the information content of the subject matter of the search. See Patrick at para. 37. It may be presumed to exist (Tessling at para. 38; R. v. Nolet, 2010 SCC 24 (S.C.C.) at para. 31) or may be inferred from the circumstances (R. v. Cole, 2012 SCC 53 (S.C.C.) at para. 34; Spencer at para. 19). The finding of a subjective expectation of privacy is “not a high hurdle”: Patrick at para. 37.
[Emphasis added by the Court.]
4. The Court listed the factors to be considered in determining whether or not an accused’s subjective expectation of privacy in a subject matter of the search is objectively reasonable:
69 The objective reasonableness of a subjective expectation of privacy is determined on “the totality of the circumstances” of a particular case with “close attention to context” (Patrick at para. 26). The analytical framework for assessing whether an applicant had a reasonable expectation of privacy in the subject matter of the search was set out in Patrick at para. 27 (see also Edwards at para. 45; Tessling at para. 19). It includes a consideration of the following factors:
1. The nature or subject matter of the search;
2. Whether the applicant had a direct interest in the subject matter of the search;
3. Whether the applicant had a subjective expectation of privacy in the informational content of the subject matter of the search; and
4. Whether the applicant’s subjective expectation of privacy was objectively reasonable.
70 In Patrick, the Court listed a number of factors to be considered in assessing objective reasonableness (at para. 27):
a. The place where the search occurred;
b. Whether the informational content of the subject matter was in public view;
c. Whether the informational content of the subject matter had been abandoned;
d. Whether the information was already in the hands of third parties; if so was it subject to an obligation of confidentiality?
e. Whether the police technique was intrusive in relation to the privacy interest;
f. Whether the use of this evidence gathering technique was itself objectively unreasonable; and
g. Whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.
71 The more personal and confidential the information, the greater there will likely be a reasonable expectation of privacy in the information: Cole at para. 46. However, “not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection”: Tessling at para. 26.
5. The Court held that Fedan’s vehicle had been lawfully seized without a warrant under Section 489(2) of the Criminal Code, which “generally includes a right of examination of that item,” except that this does not apply “with respect to personal computers that were not specifically listed in the search warrant as there were significant privacy interests engaged in the search of the computer that might contain a vast amount of personal information.”
(a) The Court also concluded that Fedan could not have had a residual territorial privacy interest in the SDM after the vehicle had been lawfully seized.
6. The Court held that the trial judge had erred in concluding that Fedan did not have a subjective expectation of privacy in the SDM data, noting that “the jurisprudence supports a presumption that Mr. Fedan had an expectation of privacy in his vehicle, albeit markedly reduced from a home or office, which extended to the SDM as it was an integral component of his vehicle, not unlike an engine” (para. 76).
7. However, the Court held that Fedan’s subjective expectation of privacy in the SDM data was not objectively reasonable, since the data had no personal identifiers that linked him to it, the SDM is not an analogous to a personal computer which does contain biographical core data and that it was difficult to accept that a vehicle operator might reasonably have intended that the last five seconds of information relating to his/her driving before a collision would be private.
8. In the alternative, the Court held that even if the Accused's Section 8 Charter rights had been breached, the SDM data should not have been excluded under Section 24(2) of the Charter because Sgt. Noonan acted in good faith relying on a legal opinion, the impact of a Charter breach was minimal because the vehicle had been destroyed and lawfully seized. Also, exclusion of the evidence “would have substantially weakened the Crown’s case… which would have had a marked negative impact on the truth-seeking function of the trial” with respect to evidence that was “non-conscripted, accurate and reliable.”
III. COMMENTARY: With respect, the reasoning in Hamilton and the case of R. v. Glenfield, 2015 ONSC 1304 is to be preferred. Those decisions held that although police had the right to seize the vehicle without a warrant to protect and preserve the evidence contained on the airbag module, a warrant still was required to access the contents thereof. Requiring a warrant in such circumstances is not at all onerous. There are at least two problems with this decision:
1. After deciding that Fedan had a subjective expectation of privacy in the data, the Court held that this subjective expectation was not objectively reasonable because it was difficult to accept that a vehicle operator might reasonably have intended that the last five seconds of information relating to his/her driving before a collision would be private (i.e. that he did not have a subjective expectation of privacy). This is a serious inconsistency.
2. In deciding that Fedan’s expectation of privacy ended once the vehicle was lawfully seized by police, the Court ignored binding Supreme Court of Canada precedent which distinguishes between the police ability to seize a device to preserve the evidence and then seeking a warrant to access the data thereon: R. v. Cole, 2012 SCC 53.
We have been advised that Fedan is pursuing leave to appeal to the Supreme Court of Canada. In light of the conflicting authority from Ontario, that Court may well see the need to hear the case and decide the point. For now, police will rely on the uncertainty in the law created by the conflicting Ontario and British Columbia cases.