No Reasonable Expectation Of Privacy In Vehicle Black Box Data In Ontario

On August 16, 2024, the Court of Appeal for Ontario (the Court) issued its decision in R. v Attard, 2024 ONCA 616, finding that there is no reasonable expectation of privacy in a vehicle’s Event Data Recorder (EDR) data.

EDRs capture vehicle data such as its speed, steering input, drive mode, throttle, and braking in the five seconds before a collision or near-collision event. The respondent was involved in a motor vehicle accident, following which, the police seized and extracted the EDRs from both vehicles involved.  The police did not obtain the respondent’s consent or judicial authorization to seize his vehicle or to extract the EDR and its data. 

At trial, the lower court excluded the EDR evidence and acquitted the respondent, finding that the police unlawfully seized the vehicle and extracted the EDR and, in any event, the respondent had a reasonable expectation of privacy in the EDR and its data.

On appeal, the Court first held that the respondent’s vehicle was lawfully seized under the Criminal Code. The Court continued to find that the lawful seizure of a vehicle extinguishes privacy interests in the vehicle and its component parts, including describing the EDR as a “a component of the car just as much as its engine, steering wheel, and brakes”. With respect to the extraction of the EDR data, the Court reviewed whether a reasonable expectation of privacy existed in the circumstances and concluded that there was no reasonable expectation of privacy in the EDR data after the vehicle was lawfully seized. The Court also noted:

1. the EDR contains no information going to the driver’s biological core, lifestyle, or personal choices, nor information that could be said to directly compromise his dignity, integrity, or autonomy;
2. there is no personal information in the EDR akin to that which could potentially be found on a computer, cell phone, or location tracker;
3. EDR data is impersonal, automatically deleted, and limited to five seconds of information regarding the operations of the car; and
4. EDR data provides no personal identifiers that could link the driver to the captured data.

Ultimately, the Court allowed the appeal, set aside the acquittal, and ordered a new trial at which the EDR data shall be admitted as evidence.

Summary By: Steffi Tran