No Free Downloads

Jeremy Glenfileld was charged with impaired driving causing death, dangerous driving causing death and refusing to provide a sample of his breath.  Shortly before Christmas in 2011, Glenfield was alone in his car when he ran a stop sign and struck the Huber family, husband and wife and their two young sons, who were proceeding lawfully through the intersection. Glenfield struck the driver’s side passenger door where 11 year Jeremy was sitting; he died the next day.

At the time of the accident it was snowing lightly and the roads were wet. Witnesses smelled alcohol on Glenfield’s breath. Within 6 minutes of arriving on scene police issued a roadside demand, which Glenfield failed. Later at the police station Glenfield refused to provide a sample of his breath.

Glenfield elected to have a preliminary hearing; he was committed to stand trial. Glenfield then elected to have trial by judge and jury. At the start of his trial and with the Crown’s consent Glenfield re-elected to have a trial by judge alone. The trial proceeded in a blended fashion with Glenfield’s two applications to have evidence excluded heard along with the trial evidence.

One of the applications concerned the “Event Data Recorder [EDR]” seized from Glenfield’s Jeep at the scene of the accident: 2015 ONSC 1304.  Cst Stotts arrived on scene nearly an hour after Glenfield had failed the roadside demand. Stotts was assigned to collect “roadway evidence.” Stotts had no idea who the Jeep belonged to and if any charges had been laid. Stotts entered the Jeep and downloaded the information on the EDR. Stotts testified that he did so in order to avoid having the EDR reset by the jostling that would be caused by towing.

To get to the EDR, Stotts forcibly removed a cover in the front passenger area of the console and using a Crash Data Retrieval system he downloaded some of the data. It is that information that Glenfiled sought to have excluded on the basis that his right to be free from unreasonable search and seizure had been violated.

Hambly J held that “the owner of the damaged vehicle in a collision has a reasonable expectation of privacy in the contents of the EDR” [para 46]. Since the police had neither Glenfield’s consent nor a warrant they were trespassing when they entered Glenfield’s vehicle.

Hambly J held that there was no evidence that police:

knew how the accident happened. He sought to download the EDR in the Huber van but did not have the equipment to do so. He seems to have proceeded on the basis that there was a motor vehicle accident resulting in two damaged vehicles. He would therefore download the EDR information on them that he could conveniently access. This could be used in the prosecution of any charges that might be laid. If this is permitted, this means that the police can without a warrant enter any damaged vehicle at the scene of an accident, gain access to a computer like device in the vehicle by damaging the vehicle and download information from it of extensive details about the movement of the vehicle. There were no exigent circumstances making it necessary for the police to act before obtaining a warrant. The police could have entered the vehicle for the sole purpose of deactivating the power to the EDR. This would have protected the risk of the information recorded of the movement of the vehicle in the five seconds before the accident being erased by an accidental event. The vehicle could have been towed to a storage yard and a warrant obtained the following day. The vehicle also could have been left at the scene until the following day. It was not obstructing traffic. A police officer could have been stationed there to maintain the security of the vehicle.6. Biographic Core Test [para 51].

After concluding that the police had violated Glenfield’s section 8 Charter rights the court then turned to whether the evidence should be excluded. Hambly J held first, that the seriousness of the breach was at the low end of the spectrum [para 74]. Second, that the impact on Glenfield’s Charter protected interest was low. [para 75] Third, that the exclusion of the evidence would effectively gut the crown’s case. [para 76]

In balancing the factors the Court concluded that Glenfield had failed to establish administration of justice would be brought into disrepute by the admission of the EDR evidence. [para 78]

One important aspect of this decision is Hambly J’s instruction to police on how they could have lawfully secured and searched for the data on the EDR.  Hambly J explained that “police could have entered the vehicle for the sole purpose of deactivating the power to the EDR”. By deactivating the power they would have protected the information on the EDR while they secured a warrant. [para 51]