Many newer model vehicles are equipped with a device similar to those installed on airplanes (i.e. “black boxes”). These devices are called “Event Data Recorders” (EDR’s). EDR’s started becoming common in the mid-2000’s, and today almost all newer models are equipped with this device.
Event data recorders track vehicle data such as speed, acceleration, braking, steering, and air-bag deployment before, during, and after a crash. The intended purpose of the ERD was to provide automakers with feedback on how their vehicles performed during a collision; with the ultimate goal of making the vehicle safer.
Ultimately, police and accident reconstructionists began using this information when a vehicle was involved in a fatal collision. Subsequent to a collision, all the investigator had to do was to plug into a vehicles diagnostics port and retrieve a data file. This data file could later reveal approximate speed, acceleration, braking, steering, and air-bag deployment.
Recently, there has been a great deal of litigation in criminal courts with regards to the use of this data. There have been cases where the EDR data has been used in conjunction with an “accident reconstructionists report”. Further, there have been cases where the accident reconstructionists findings, have been based on EDR data. For investigators and accident reconstructionists, EDR data is invaluable, as it provides them with real-time data before, during, and after a crash. The issue that has arisen relates to the ownership of the EDR data and the manner in which it is seized.
The captured data is considered the property of the vehicle owner. Retrieving and seizing this data without the consent of the owner or without a warrant would result in a breach of the vehicle owner’s s.8 rights under the Charter of Rights and Freedoms.
In a recent case from the Ontario Superior Court of Justice (see link below), the issue was whether the police at an accident scene can download the information of the Event Data Recorder (EDR) of a damaged motor vehicle of the speed, braking and accelerator pedal position of the vehicle in the five seconds before the accident without a warrant and without the consent of the driver. Justice Hambly found that the police are not permitted to do this. He stated that the driver has a privacy interest in the contents of the EDR which is protected by s. 8 of the Charter. The police can only access this data with the consent of the owner or on the authority of a properly issued warrant. Despite the fact that, Justice Hambly found a s.8 breach, he did not exclude the data pursuant to s. 24(2) of the Charter. In other words, though the search violated the driver’s right to privacy, the data collected as a result of it was found to be admissible.
See: R. v. Glenfield, 2015 ONSC 1304 - http://canlii.ca/t/ggnd9