COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Fedan,

2016 BCCA 26

Date: 20160125

Docket: CA42318

Between:

Regina

Respondent

And

Wayne Rodney Fedan

Appellant

Before:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Savage

On appeal from:  An
order of the Supreme Court of British Columbia, dated September 5, 2014 (
R.
v. Fedan
, 2014 BCSC 2527, Kamloops Docket No. 91944-2).

Counsel for the Appellant:

M.B. Rankin
A. Varesi

Counsel for the Respondent:

D. Layton

Place and Date of Hearing:

Kamloops, British
  Columbia

October 9, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2016

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Savage

Summary:

The appellant was convicted of two counts of dangerous
driving causing death. He was the owner and operator of a pick-up truck
involved in an accident where two passengers died. Following the accident, the
appellants truck was lawfully seized pursuant to s. 489(2) of the
Criminal Code. The police obtained a warrant authorizing a forensic search and
seizure of blood, DNA, fingerprints, personal effects and documentation in the
vehicle relating to registration, insurance and maintenance logs. A collision
analyst and accident reconstruction expert removed the manufacturer-installed
sensing diagnostic module (the SDM) from the vehicle and downloaded its data.
This item was not listed in the search warrant. The data provided critical and
reliable information with respect to the speed, throttle and braking of the
vehicle in the five seconds immediately before a collision. A voir dire was
held on the admissibility of the SDM data. The judge held that the appellant
had no subjective expectation of privacy in the SDM data and therefore its warrantless
seizure and search did not violate his s. 8 Charter right. In the
alternative, she would have admitted the evidence under s. 24(2) of the
Charter. On appeal, the appellant submits the judge erred in admitting the SDM
data. He also submits the judge erred in relying upon evidence of a witness
whose memory was improperly refreshed by the Crown, and in misapprehending
and/or failing to address key pieces of evidence. Held: Appeal dismissed. The
admissibility of the SDM data did not violate the appellants s. 8 Charter
right. The jurisprudence supported a presumption that the appellant had a subjective
expectation of privacy in his vehicle based on his territorial privacy
interest. The SDM was a component of his vehicle and therefore the appellant
also had a presumed expectation of privacy in the device. However, he did not
have an objectively reasonable expectation of privacy in the SDM data. His
territorial privacy interest in the device was extinguished by the lawful
seizure of the vehicle, and he had no informational privacy interest in the SDM
data as it contained no information that touched on his biographical core, including
any personal identifiers linking him to the captured data. In the alternative,
if a s. 8 breach was established, the evidence should be admitted under
s. 24(2) of the Charter. The other two grounds of appeal had no merit. The
process the Crown followed to clarify a witnesss evidence was transparent,
authorized by the trial judge and did not engage s. 9(2) of the Canada
Evidence Act, and the appellant failed to demonstrate any misapprehension of
evidence that would meet the stringent test for appellate intervention.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

Overview

[1]

Wayne Fedan appeals his convictions on two counts of dangerous driving
causing death. The charges arose out of a single vehicle accident in a
residential area of Kamloops. Mr. Fedan was the owner and operator of the
pick-up truck involved in the accident. At the time he was transporting two
passengers. All three occupants of the vehicle had been drinking; no one was wearing
a seatbelt. Brittany Plotnikoff was ejected from the vehicle and died at the
scene. Her boyfriend, Kenneth Craigdallie, died shortly thereafter at the
hospital.

[2]

Following the accident, Mr. Fedans truck was lawfully seized without
a warrant pursuant to s. 489(2) of the
Criminal Code,
R.S.C. 1985,
c. C-46

[the
Code
] and was stored in a towing compound. No
issue is taken with the lawfulness of that seizure.

[3]

Two days later the police obtained a warrant to search the vehicle. The
warrant authorized a forensic search and seizure of blood, DNA, fingerprints,
personal effects, and any documents in the vehicle relating to the
registration, insurance, and maintenance logs of the truck. It did not specify
the seizure of the manufacturer-installed sensing diagnostic module (the SDM)
embedded underneath the floor of the drivers seat or a search of its data.

[4]

Sergeant Noonan, a collision analyst and accident reconstruction expert,
removed the SDM from the truck and downloaded its data. The retrieved data
provided critical and highly reliable information with respect to the speed,
throttle, and braking of the vehicle in the five seconds immediately before the
collision. The data established that: (i) the speed of the vehicle one
second before the collision was 106 km/hour; (ii) the throttle (i.e., the
pedal acceleration) was at 82% in the four seconds before the brakes were
engaged; and (iii) the brakes were applied only in the last second before
the collision.

[5]

A
voir dire
was held on the admissibility of the SDM data. Mr. Fedan
did not testify on the
voir dire
and there was no evidence that he was
aware of or understood the purpose of the device. In the absence of such
evidence, the judge found that Mr. Fedan did not have a subjective expectation
of privacy in the SDM or its data and therefore found it unnecessary to decide
if he had a reasonable expectation of privacy in the SDM or the information
contained therein. In the result, she held that the warrantless seizure and
search of the SDM did not violate Mr. Fedans s. 8
Charter
right
and admitted the SDM data into evidence.

[6]

Applying the legal test from
R. v. Beatty,
2008 SCC 5, the judge held
that the Crown had established beyond a reasonable doubt both the
actus reus
and
mens rea
of the offences. With respect to the
actus reus,
the
judge found Mr. Fedans driving in the five seconds before the accident
was objectively dangerous. As to the
mens rea,
she found his objectively
dangerous driving constituted a marked departure from the standard of driving
of the reasonably prudent driver in all of the circumstances. The judge relied
on the SDM data in making these findings. She also relied on
R. v. Settle,
2010
BCCA 426, in finding that the
mens rea
of the offence was satisfied by Mr. Schneiders
evidence of Mr. Fedans pattern of driving in the half hour before the
collision, together with the evidence of Ms. Gillis and Ms. Blackburn
of the appellants consumption of alcohol and state of intoxication before he
left their apartment.

[7]

The central issue in this appeal is whether the removal of the SDM and
the downloading of its data violated Mr. Fedans s. 8
Charter
right.
Mr. Fedan submits the warrantless seizure of the SDM and the search of its
data was unreasonable, violated his s. 8
Charter
right, and
therefore the information contained in the data should not have been admitted
into evidence. He seeks an order for a new trial or, alternatively, a judicial
stay of proceedings.

[8]

For the reasons set out below, I am of the view that Mr. Fedan did
not have a reasonable expectation of privacy in the SDM data and therefore its warrantless
seizure and search did not violate his s. 8
Charter
right. I reach
that conclusion, however, for reasons different from those of the trial judge. In
the alternative, I agree with the trial judge that in the circumstances of this
case the evidence should not be excluded under s. 24(2) of the
Charter.

Background

[9]

In the early morning hours of March 20, 2010, Mr. Fedan lost
control of his 2004 GMC Sierra 2500 pick-up truck when he attempted to
negotiate a counter-clockwise curve in a residential area of Kamloops, B.C. At
the time, he was driving at a speed in excess of the municipal speed limit of
50 km/hour and in excess of the critical curve speed of 79 km/hour (the speed
above which a vehicle will slide out of its path of travel).

[10]

As his vehicle rounded the curve it hit the curb of the road. The force
of the impact caused his vehicle to sideslip in a counter-clockwise rotation
over the edge of the curb, break through a wooden fence and ultimately side-swipe
a large tree before rotating clockwise and coming to rest 9.7 metres past the
tree. Both passengers were killed.

[11]

Mr. Fedan was charged with two counts of impaired driving causing
death, two counts of operating a motor vehicle over .08 causing death, and
two counts of dangerous driving causing death, contrary to ss. 255(3), 255(3.1)
and 249(4) of the
Code,
respectively. The trial judge excluded as
evidence a number of Mr. Fedans statements, as well as the blood samples
taken from him at the hospital following the accident. Those rulings are not disputed
by the Crown. In the result, Mr. Fedan was acquitted of the impaired
driving and over .08 charges.

[12]

Following the accident, Mr. Fedans vehicle was lawfully seized and
stored at a towing compound. On March 22, 2010, after obtaining a search
warrant, the police searched the vehicle. The warrant did not specify the seizure
and search of the SDM and its data.

[13]

An SDM is an electronic device that is bolted to the floor underneath
the drivers seat. Its primary function is to fire the airbags upon a
deployment event (e.g., a collision) or a near-deployment event (e.g., a
sudden deceleration in speed). Its secondary function is to capture limited data
with respect to the speed, throttle, and braking of the vehicle in the five seconds
before an event or near-deployment event. It does not capture any other data, nor
can data be inputted into the SDM or be changed. The data also can only be
imaged with highly specialized equipment that is generally not in the
possession of the ordinary driver.

[14]

Although the airbags in Mr. Fedans vehicle did not deploy, a
near-deployment event occurred when his vehicle hit the tree. That event was
the trigger for the SDM to capture the speed, throttle and braking of Mr. Fedans
truck in the last five seconds before the collision.

[15]

Sgt. Noonan conducted a physical examination of the scene of the
accident and on March 22, 2010, attended at the towing compound. He knew
that, based on the year and make of Mr. Fedans truck, it had an airbag
system or a manufacturer-installed SDM. Sgt. Noonan removed the SDM and downloaded
its data. He testified that he did not obtain a search warrant because he had been
advised by the Department of Justice in 2005 that a search warrant for an SDM was
not required as it contained no personal identifiers. His understanding changed
in 2014 when
R. v. Hamilton,
2014 ONSC 447, was published.
Hamilton
concluded
that, in the circumstances of that case, a search warrant was required for the
removal of an SDM from a vehicle. In this appeal, the Crown submits that
Hamilton
was not correctly decided or alternatively it is distinguishable on its
facts.

[16]

The SDM data established that in the five seconds before the accident, Mr. Fedans
truck: (i) was travelling at a speed of 106 km/hour, over twice the legal
speed limit; (ii) had accelerated in the four seconds before the brakes
were engaged; and (iii) had not engaged its brakes until one second before
it hit the tree.

[17]

Mr. Fedan appeals his convictions principally on the issue of the
admissibility of the SDM data recovered by Sgt. Noonan in a warrantless
search. He submits the judge erred in law in finding that his s. 8
Charter
right was not violated by finding that he had no subjective expectation of privacy
in the SDM and its data.

[18]

Mr. Fedan also raises two additional grounds of appeal. He submits
the judge erred: (i) in relying on evidence of a witness whose memory he submits
was improperly refreshed by the Crown; and (ii) in misapprehending and/or failing
to address key evidence, the cumulative effect of which rendered the verdict
unreasonable.

[19]

At the hearing of the appeal, the division did not call upon the Crown
to respond to the latter two grounds of appeal as we concluded they had no
merit. In our view, the only arguable issue on appeal was whether the judge
erred in finding that Mr. Fedan did not have a reasonable expectation of
privacy in the SDM data.

The Evidence

(i)       The events leading up to
the accident

[20]

At about 7:30 p.m. on the evening of March 19, 2010, Mr. Fedan
arrived with Mr. Craigdallie at the residence of Nicola Corbo to pick up Ms. Plotnikoff.
Mr. Corbo was Ms. Plotnikoffs step-father. They had with them a
sealed and unopened bottle of Crown Royal whiskey. Before the three left, Mr. Corbo
warned them not to drink and drive. Mr. Fedan assured him they would not.

[21]

At about midnight, the trio arrived at Mr. Craigdallies apartment.
His roommate Angela Gillis and her friend Michelle Blackburn were there. Ms. Blackburn
testified that Ms. Plotnikoff and Mr. Craigdallie were very drunk.
She said that while Me. Fedan also appeared to have been drinking he did
not seem as drunk as the others. Ms. Gillis and Ms. Blackburn
testified that when the trio arrived, the bottle of liquor they had with them
was partially consumed. All of the occupants continued to drink the whiskey
until the trio left at around 1:00 a.m. They took with them the liquor bottle,
which by then was near empty. Ms. Blackburn said she was concerned about
the state of the trios intoxication and asked who was driving. She said Mr. Fedan
told her that he was driving and that they were going to a party.

[22]

James Schneider was driving home from work at about 1:00 a.m. on
March 20, 2010. He noticed that a truck, later identified as Mr. Fedans
vehicle, was tailgating him. He testified that for no apparent reason the truck
changed lanes three or four times without signalling and flashed its high beams
at him several times. Mr. Schneider also observed the truck turn onto a side
street at a high speed without signalling, and nearly hit a pedestrian in a
cross-walk.

[23]

At about 1:10 a.m., Mr. Schneider called 911 to file a complaint of
an erratic driver. Mr. Schneider followed the truck for about nine blocks.
During that period he saw it pull into a parking lot and saw two individuals
exit the vehicle, one of whom he said was wearing a hat. He advised the police
of this and gave them the license number of the truck. He continued to drive
past the truck, made a U-turn and drove back again passing the truck. During
that period he saw the truck leave the parking lot and turn back onto the
street. He then drove home.

[24]

At about 1:30 a.m. Mr. Fedan was involved in a catastrophic
accident. He crashed his truck in the manner described above, in a location
about 12 blocks from where Mr. Schneider had last seen his vehicle. There
were no witnesses to the accident. A local resident called 911 about one to
three minutes after the crash.

[25]

The area of the collision was lit by three streetlights. The weather was
overcast. The road surface was flat, in good repair, and dry.

[26]

Mr. Fedans truck was completely destroyed in the accident.

(ii)

The paramedics
conversation with the appellant

[27]

Kamloops Emergency Health Services attended the scene. One of the
paramedics was Aleah Morris. Ms. Morris testified that Mr. Fedan told
her he had been driving the truck and that he had consumed three rye and cokes
since 8:30 p.m. Ms. Morris said she did not smell any alcohol on Mr. Fedan
when she attended to him.

(iii)     Sgt. Noonans
evidence

[28]

Sgt. Noonan worked independent of the RCMP on the criminal
investigation into the accident. At about 3:02 a.m., he arrived at the scene of
the accident. The Kamloops RCMP were already there and had recovered the
near-empty bottle of Crown Royal whiskey. No ball cap was discovered.

[29]

Sgt. Noonan recorded the location and took the measurements of the
roadway markings (i.e., the yaw marks). In his opinion, the yaw marks were
consistent with a vehicle exceeding the critical curve speed of 79 km/hour and sliding
and rolling. Based on the yaw marks alone, however, Sgt. Noonan could only
give a conservative estimate of the vehicles pre-impact speed at between 50
and 81 km/hour. He said that the low end of that range estimate was illogical
because the impact of the vehicle with the tree at 50 km/hour would have
stopped the vehicle at the tree. Similarly, the top end of the range was also illogical
as the vehicle would have been barely sliding out over the critical curve speed
of 79 km/hour. The physical evidence at the scene of the accident belied both
of those estimates.

[30]

On March 22, 2010, he attended at the towing compound. He had not
been involved in the preparation of, obtaining or execution of the search
warrant, which was done by officers in the Kamloops detachment. He was tasked
with removing the SDM from under the drivers seat and downloading its data.

[31]

The Delta-V data (i.e., the change of speed and the time it takes to
reach that change of speed during a crash event) showed a loss of 50 km/hour in
the half second after the trucks impact with the tree. Based on the length of
the yaw marks and the Delta-V data, Sgt. Noonan estimated the trucks pre-impact
speed at between 70 and 95 km/hour. The low end of that range assumed no braking
at one second before the event. The high end of the range assumed 100% braking
at one second before the event. In his opinion, however, this evidence still
did not produce an accurate enough estimate. The most accurate record of the
speed of the vehicle at the material time could only be obtained directly from
the SDM.

[32]

The direct data from the SDM established that Mr. Fedans truck had
been travelling at the following speeds in the last five seconds before the
accident:

(a) Five seconds before

‒
91.71 km/hour;

(b) Four seconds before

‒
96.54 km/hour;

(c) Three seconds before

‒
101.36 km/hour;

(d) Two seconds before

‒
104.58 km/hour;

(e) One second before

‒
106.19 km/hour.

[33]

It also established that: (i) in the five seconds before the crash
the throttle was at 82% until one second before the crash when it went to 0%; and
(ii) the brakes were not applied until one second before the crash.

[34]

The SDM data has a margin of error of plus or minus 4%.

Discussion

[35]

I propose to first address the two grounds of appeal dismissed summarily
at the hearing.

(i)

Did
the judge err in relying upon evidence of a witness whose memory was improperly
refreshed by the Crown?

[36]

Ms. Blackburn testified that when Mr. Fedan, Ms. Plotnikoff
and Mr. Craigdallie were leaving the apartment, she asked them who was
driving as she was concerned about their state of intoxication. She said that Mr. Fedan
told her he was driving and they were going to a party. This evidence was
relied on by the Crown to establish that Mr. Fedan was the driver of the
vehicle from the time he left the apartment around 1:00 a.m.

[37]

Mr. Fedan conceded that he was the driver of the vehicle at the
time of the accident, but argued that Mr. Schneiders evidence raised a
live issue as to whether he was the driver at the time Mr. Schneider
observed the erratic driving. Mr. Schneiders observations of the erratic
driving occurred after the trio left the apartment occupied by Ms. Gillis
and Ms. Blackburn.

[38]

At the preliminary hearing, Ms. Blackburn testified that Mr. Fedan
had told her he was going to be driving. When asked about this by the Crown in
examination in chief, she testified that nothing was said about who would be
driving. The Crown then presented Ms. Blackburn with her testimony from
the preliminary inquiry and Mr. Fedans counsel objected. The judge ruled
that the Crown could not refresh Ms. Blackburns memory while she was
testifying in examination in chief by showing her a prior inconsistent
statement from a transcript of her evidence at the preliminary inquiry.

[39]

Before the court adjourned for the day, the Crown asked the judge for
directions on an alternative proposed course of action on this issue that would
take place outside of the courtroom. He said that he was seeking these
directions in order to be completely transparent and consistent with the
courts earlier ruling. He proposed that during the overnight adjournment, he
would direct Ms. Blackburn to review the transcript of her preliminary
inquiry evidence before returning to the witness stand the next day, when he
would then ask her if she wanted to change any aspect of her evidence from the
previous day. The judge ruled that the Crowns proposed process was acceptable
and would not amount to an end run around her earlier ruling as it differed from
the manner in which the Crown had previously attempted to refresh the witnesss
memory. She also expressed the view that if the proposed process resulted in Ms. Blackburn
correcting or changing her evidence, Mr. Fedan could cross-examine her on
that change, which might in turn affect the weight to be given to Ms. Blackburns
evidence.

[40]

During the adjournment, Ms. Blackburn reviewed her evidence from
the preliminary inquiry. The following day when she resumed her examination in
chief, she corrected her earlier evidence and provided an explanation for why
she could not remember it the previous day. On cross-examination, she clarified
that Mr. Fedans response to her inquiry as to who would be driving was
made to both her and Ms. Gillis. She also confirmed that the Crown had not
asked her any specific questions about her preliminary inquiry evidence when he
gave her the transcript to review. The judge accepted Ms. Blackburns
explanation for the change in her evidence, and found her evidence to be
reliable.

[41]

In these circumstances, the process followed by the Crown to clarify Ms. Blackburns
evidence was transparent and expressly authorized by the trial judge. It did
not engage s. 9(2) of the
Canada Evidence Act,
R.S.C. 1985,
c. C-5, as it took place outside of the courtroom. It is well established
that a witnesss memory can be refreshed in this manner provided the object is
not to discredit the partys own witness:
R. v. Coffin
(1956), 114
C.C.C. 1 (S.C.C.) at paras. 19-20, 22-24;
R. v. MacDonald,
[1976]
B.C.J. No. 659 (QL) (C.A.); and
R. v. Booth
(1984), 15 C.C.C. (3d)
237 (B.C.C.A.). I find no error in the procedure that was followed.

(ii)

Did
the judge misapprehend and/or fail to address key pieces of evidence resulting
in errors that went to the root of the verdict?

[42]

Mr. Fedan submits the judge made three errors in her review of the
evidence, and those errors required his convictions to be overturned.

[43]

The first alleged error is said to be in the judges finding that Ms. Gillis
testified that Mr. Fedan admitted that he had been driving and was going
to be driving when he left their place. Ms. Gillis did not give this
evidence and in fact said she did not know who was driving. However, Ms. Blackburn
testified that Mr. Fedan made this comment to both her and Ms. Gillis.
That was the finding of the judge (at para. 45). The judge did not find
that Ms. Gillis had testified to this evidence.

[44]

The second alleged error relates to the judges finding that there was
no evidence to suggest anyone else was driving or even that the other
occupants of the truck were licensed to drive or capable of driving (at para. 45).
Mr. Fedan submits there was an inference that could have been drawn from Mr. Schneiders
evidence, that one of the individuals in the truck whom he thought was the
driver was wearing a ball cap, and that because Mr. Fedan was not wearing
a ball cap he might not have been the driver at that time. In fact, there was
no evidence that any of the occupants of the vehicle were wearing a ball cap.
Other reliable evidence indicated Mr. Fedan was the driver, including: (i) he
was the owner of the vehicle in the collision; (ii) he admitted to be being
the driver of the vehicle at the time of the collision, which occurred within
20 minutes of Mr. Schneiders observations; (iii) he told Ms. Gillis
and Ms. Blackburn that he was going to be driving to a party; and
(iv) the two passengers were very drunk and there was no evidence they
were licensed or were even capable of driving that evening.

[45]

The third alleged error by the judge was her failure to address what Mr. Fedan
submits were inconsistencies in Mr. Corbos evidence, including: (i) he
said the trio had a 40-pounder bottle of liquor when it was a 60-pounder
that was retrieved at the scene of the accident; (ii) he described Mr. Fedans
dog as small, cute and white when other witnesses described it as small, cute
and black; and (iii) Mr. Fedans truck was white when it was black.

[46]

Each of these alleged errors were, in my view, at their highest insignificant,
inconsequential, and immaterial to the judges reasoning process for conviction.
The test for overturning a conviction based on a misapprehension of the
evidence is a stringent one. As this Court noted in
R. v. Swales,
2014
BCCA 350:

[48]      The threshold to be met in demonstrating a
misapprehension of evidence warranting appellate intervention is stringent. The
misapprehension must be a question of substance; must be material to the
trial judges reasoning process; and must play an essential role, not just in
the narrative of the judgment, but in the reasoning process resulting in the
conviction:
R. v. Lohrer
at para. 2, 2004 SCC 80, [2004] 3 S.C.R.
732. All three elements of the test must be satisfied to establish a material
misapprehension of evidence. The trial judge must be shown to have erred by
actually misapprehending the evidence. As Lebel J. explained in
R. v.
Sinclair,
2011 SCC 40, [2011] 3 S.C.R. at para. 53, [t]he plain
language or the thrust of the reasons must disclose an actual mistake.

[49]      It is not enough for
the appellant to merely suggest a different interpretation of the evidence, or
merely point to some evidence which arguably weighs against the trial judges
finding. Mere differences in interpretation on factual matters are not
misapprehensions but simple disagreement with the judges differing view of the
evidence.

[47]

Mr. Fedan failed to demonstrate any alleged error that would meet
this test for appellate intervention.

(iii)     Did
the judge err in admitting the evidence of the SDM and its data?

[48]

The judge held that the removal of the SDM and the retrieval of its data
did not constitute a breach of Mr. Fedans s. 8
Charter
right
as there was no evidence that he was aware of the embedded device. In the
absence of any evidence to suggest otherwise, the judge found that Mr. Fedan
had no subjective expectation of privacy in the data. She stated:

[22]      In my view, this is where the accuseds application
fails because he has not established any subjective expectation of privacy over
the SDM or information contained therein. Although the threshold for
establishing a subjective expectation of privacy is not high, this is not a
situation where I can presume it existed. SDMs are a relatively new feature of
motor vehicles and it is unlikely that the majority of drivers even know their
vehicle is equipped with one or what it does. An SDM cannot be accessed without
special knowledge, it does not operate without a triggering impending
collision, and the information recorded therein needs to be interpreted by
special software that is unlikely to be in the possession of most people.

[24]      I concluded that
without some evidence of a subjective expectation of privacy, the accuseds
s. 8
Charter
rights have not been triggered, and I do not need to
consider whether an expectation of privacy over an SDM and the information
contained therein is objectively reasonable.

[49]

In the alternative, the judge held that if there was a s. 8
Charter
breach she would not have excluded the evidence pursuant to s. 24(2)
of the
Charter
as: (i) Sgt. Noonan had acted in good faith
throughout, having based his decision that a search warrant was not required on
legal advice from the Department of Justice; (ii) the impact on Mr. Fedans
privacy interests in the vehicle was minimal, as the vehicle was completely
destroyed in the collision and had been lawfully seized; and (iii) the
evidence was not conscripted and was reliable and essential to the Crowns case.

[50]

The judge went on to consider
Hamilton
and distinguished it on
its facts. The accused in
Hamilton
was an off-duty police officer who was
charged with dangerous driving causing death. He testified that in the course
of his duties he had become aware that his vehicle contained an SDM and that
the device stored information about the speed and braking of the vehicle in the
few seconds before a collision. He also testified that he had a subjective
belief that the data stored in the SDM belonged to him. The judge, relying on
R.
v. Jones,
2011 ONCA 632 (for the plain view doctrine) and
R. v. Vu,
2013
SCC 60 (for the need of a warrant to seize and search a personal computer),
compared the SDM-type device to an onboard computer. He found the accused had
a subjective expectation of territorial and informational privacy in the
interior of his vehicle and therefore in the SDM and its data, and that
expectation of privacy was objectively reasonable. Although the judge found
that the warrantless seizure and search of the SDM was an infringement of the
accuseds s. 8
Charter
right, he declined to exclude evidence under
s. 24(2) of the
Charter.

[51]

In this case, the judge rejected what she viewed as a flawed analogy in
Hamilton
between the device and an onboard computer, and therefore a flawed
reasoning based on
Jones
and
Vu. Jones
involved the seizure and
search of a personal computer;
Vu
involved the seizure and search of two
personal computers and a cell phone. All the devices in both cases were taken from
a residence. The judge in this case reasoned:

[23]       With all due respect
to the court in
Hamilton,
seizure of an SDM from a vehicle that has been
destroyed in an accident is not the same as search and seizure of a computer or
a cellphone from a home or a persons body. The evidence before me from
Sergeant Noonan establishes that an SDM contains no biographical or identifying
data, but is merely a highly precise observer and recorder of information
generated
by the vehicle,
not the driver. Its primary purpose is to
recognize deceleration over a given time period set by the manufacturer and
deploy airbags to prevent injury. When there is a triggering or deployment
event, it will capture five seconds of data regarding speed, brakes, and
seatbelts. While it is true that the drivers actions in operating the vehicle
will cause the SDM to engage, those same actions would likely be visible to the
public eye. The SDM does not record anything unless there is a crash event. A
triggering event cannot be artificially created by anyone. The data from the
SDM cannot be changed by anyone, nor can it be read without interpretation by
special software. [Emphasis added.]

Mr. Fedans submissions

[52]

Mr. Fedan submits the judge erred in admitting this evidence by
finding that a presumed subjective expectation of privacy could not be made because
of a lack of evidence that he knew about the device and/or its purpose. He
contends that based on settled jurisprudence an individual may be presumed to
have a subjective expectation of privacy in his or her vehicle, although the
privacy interest is markedly reduced from that in a home or office. See
R.
v. Wise,
[1992] 1 S.C.R. 527 (police installed tracking device);
R. v.
Mellenthin
, [1992] 3 S.C.R. 615 (search of vehicle while driver detained at
a check stop);

and
R. v. Belnavis,
[1997] 3 S.C.R. 341 (search of
vehicle while driver stopped for speeding). It follows, he submits, the judge erred
in refusing to presume he had a subjective expectation of privacy in the SDM by
reason of his presumed subjective expectation of privacy in his vehicle.

[53]

Relying on
Hamilton
and
R. v. Glenfield,
2015 ONSC 1304, Mr. Fedan
further submits that his expectation of privacy was objectively reasonable. In
Hamilton,
the judge found that: (i) the accused police officer had a direct
interest, as the owner of the vehicle, in the data stored in the embedded electrical
device; (ii) based on the reasoning in
R. v. Patrick,
2009 SCC 17

(no reasonable expectation of privacy in discarded garbage) and
Belnavis,
the accused had a subjective expectation of territorial and informational privacy
in the device; and (iii) the device was like an onboard computer and
therefore the applicants expectation of privacy was reasonably objective. The
judge in
Hamilton
also found that the warrantless removal of the
electrical device amounted to an intrusive search that went well beyond the
kind that reasonable motorists would regard as incidental to the exercise of
the privilege of operating a motor vehicle on a public highway (at para. 51).
He concluded:

[72]      It may be that in the future with further
advancement in the technology of the vehicles onboard computer, significantly
more information may be stored in a computer device in a vehicle. However, in
this case, as I have previously described, the information of the driving is
limited to only a 2 1/2 second time period prior to the collision. Therefore,
strictly speaking the information contained on the ACM could not reasonably be
said to fall into the category of exposing intimate details of the Applicant's
lifestyle, or information of a biographical nature.

[73]      However, Binnie J. in
R. v. M.(A.)
[2008 SCC
19] at para. 68 said that not all information that fails to meet the biographical
core of personal information test is [open] to the police and that certain
information could be private because they are reasonably intended by their
maker to be private. [Stuart Hargreaves in 59 Criminal Law Quarterly 2 86 at
p. 103. The Proper Role of the Biographic Core.]

[74]      In my view, it can
reasonably be said that the Applicant, by the manner of how he was operating
his motor vehicle at the relevant time was the maker of the information
collected and stored on his vehicle's ACM which he intended to be private.

[54]

In the result, however, the judge declined to exclude evidence under
s. 24(2) of the
Charter.

[55]

In
Glenfield,
like Mr. Fedan in this case, the accused did
not testify on the
voir dire.
However, the judge in
Glenfield
presumed
a subjective expectation of privacy in the subject matter of the search, following
R. v. Spencer
, 2014 SCC 43 (there is a reasonable expectation of privacy
in subscriber information given to police by an Internet Service Provider) and
R.
v. Cole,
2012 SCC 53 (there is a reasonable expectation of privacy in a personal
computer). In finding a s. 8 breach, the judge applied the reasoning from
Hamilton
,

including its analogy between the device and a computer, and concluded that
the warrantless seizure and search of the device and its data violated the
accuseds s. 8
Charter
right. As in
Hamilton
,

however,
he declined to exclude the data under s. 24(2) of the
Charter
.

[56]

Mr. Fedan in this case draws a similar analogy between the search
of the SDM and the search of a personal computer in
Vu.
In that case the
police obtained a warrant to search the accuseds residence. In the course of
their search the police discovered two computers and a cellphone, all of which
they searched. The warrant did not specify the search was to include the
computers in the home as the traditional legal framework for a search warrant
of a place had permitted the search of traditional receptacles, such as a
cupboard or a cabinet, without having to specify them in the warrant. The Court
in
Vu
held that the warrantless search of the accuseds personal
computers violated his s. 8
Charter
right, explaining that the
traditional legal framework was no longer appropriate for computers as they differed
from traditional receptacles in the following ways: (i) the amount of
personal information stored in them touches on a users biographical core and
the intimate details and personal choices of his or her lifestyle; (ii) the
information they automatically generate is unbeknownst to the user; (iii) the
information is retained in them even after a user believes it has been
destroyed; and (iv) the information accessed through a computer is
connected to a network through the Internet and therefore is not contained in
the same way as a conventional receptacle.

[57]

Mr. Fedan also relies on
Spencer
. In
Spencer,
the
Court recognized a privacy interest in anonymity. At issue in that case was
whether the accused had a reasonable expectation of privacy in subscriber
information that an Internet Service Provider had provided to the police. That
information was obtained by the police to identify the individual who had
downloaded child pornography at a certain IP (Internet Protocol) address. In
determining whether the accused had a subjective expectation of privacy, the
Court took a broad and functional approach to defining the subject matter of
the search, looking at the nature of the precise information sought as well as
the nature of the information it revealed, and how it informed the accuseds
subjective expectation of privacy. Privacy as anonymity was engaged because the
police request to link a given IP address to subscriber information was in
effect a request to link a specific person to specific online activities (at para. 50).

[58]

In summary, Mr. Fedan submits that: (i) the presumed reasonable
expectation of privacy in his vehicle (recognized in
Wise, Mellenthin
and
Belnavis
) provides the basis for a presumed reasonable expectation of
privacy in the device which was a component of his vehicle; (ii) although destroyed
in the accident, he had not abandoned his privacy interest in the vehicle; (iii) his
informational privacy interest in the SDM data is analogous to an onboard
computer or a black box; (iv) the informational content of the SDM was
not visible to the public eye in that a witness would not have been able to observe
the precise speed of the vehicle, the extent of its acceleration and when it
braked; and (v) the seizure of the SDM was intrusive as admittedly it was not
an easy task to remove the device.

The Crowns submissions

[59]

The Crown submits the trial judge correctly found Mr. Fedan had no
subjective expectation of privacy in his vehicle as it was completely destroyed
in the accident and lawfully seized under s. 489(2) of the
Code.
Section
489(2) provides:

489(2)
Every peace officer  who is lawfully present
in a place pursuant to a warrant or otherwise in the execution of duties may, without
a warrant, seize any thing that the officer believes on reasonable grounds

(a)
has
been obtained by the commission of an offence against this or any other Act of
Parliament;

(b)
has
been used in the commission of an offence against this or any other Act of
Parliament; or

(c)
will
afford evidence in respect of an offence against this or any other Act of
Parliament.

[Emphasis added.]

[60]

The Crown further submits the data captured by the SDM only related to
the use of the vehicle (speed, throttle and braking), was limited to a five-second
window before the crash, and did not record any intimate details of Mr. Fedans
biographical core, lifestyle or personal choices. In this context, the Crown
submits Mr. Fedan could not have had a subjective expectation of privacy.

[61]

In the alternative, if Mr. Fedan had a subjective expectation of
privacy in the SDM and its data, the Crown submits the expectation was not
objectively reasonable because: (i) his reduced expectation of privacy in
his vehicle had all but vanished when the vehicle was destroyed in the accident
and lawfully seized by the police in a criminal investigation; (ii) while
the informational content of the SDM was not in public view when the data was captured,
like the Forward Looking Infra-Red (FLIR) detected heat patterns emanating
from the home in
R. v. Tessling,
2004 SCC 67, the data obtained would
have been visible to any witness who had been present to observe the event,
albeit not with the same exact precision (in
Tessling
the accused was found
to have no reasonable expectation of privacy in heat emanating from his house);
(iii) the SDM data was not accessible to third parties as the vehicle had
been lawfully seized and securely stored at a compound; (iv) the removal
of the SDM was not intrusive as the vehicle was already destroyed; (v) the
information obtained from the SDM was highly relevant and reliable; and (vi) the
information retrieved did not expose any intimate details of Mr. Fedans biographical
core, lifestyle or personal choices.

Relevant legal principles

[62]

Section 8 of the
Charter
guarantees the right to be secure
against unreasonable search and seizure. It is a personal right that protects
people, not places:
R. v. Edwards,
[1996] 1 S.C.R. 128. Section 8 is
only engaged if the applicant can establish a reasonable expectation of privacy
in the subject matter of the seizure and search:
Hunter v. Southam Inc.,
[1984]
2 S.C.R. 145 at 159.

[63]

A reasonable expectation of privacy requires a subjective expectation of
privacy that is objectively reasonable. However, as was noted in
Tessling
:

[42]       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
s. 8.
Expectation of privacy is a normative rather than a descriptive
standard
. [Emphasis added.]

[64]

The privacy interests protected by s. 8 include personal privacy,
territorial privacy and informational privacy:
Tessling
at para. 20;
Patrick
at para. 32; and
Spencer
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. Fedans 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
, [1997] 2 S.C.R. 13) and a vehicle near the
bottom (
Wise
;
Mellenthin
). 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 ones home or office.

[66]

Similarly in
Belnavis
, the Court echoed the comments in
Wise
with
respect to the reduced expectation of privacy in a vehicle:

[39]      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 individuals dignity,
integrity and autonomy:
R. v. Plant,
[1993] 3 S.C.R. 281 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
accuseds informational and territorial privacy as the computer that was the
subject matter of the warrantless search was situated in the accuseds home.

The subjective expectation
of privacy

[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 at para. 31) or may be inferred from the circumstances (
R. v.
Cole,
2012 SCC 53 at para. 34;
Spencer
at para. 19). The
finding of a subjective expectation of privacy is not a high hurdle:
Patrick
at para. 37.

The reasonableness of the privacy
interest

[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
applicants 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 appellants
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.

Application of the principles to
this case

[72]

A search warrant authorizes the search of a location and the seizure of specified
items from that location for examination of a criminal offence. In some
circumstances, an item can be seized without a warrant. Section 489(2)
authorizes the seizure of any thing without a warrant where an officer in the
execution of his or her duties reasonably believes that a thing: (i) has
been obtained by the commission of an offence; (ii) has been used in the
commission of an offence; or (iii)
will afford evidence in respect of
an offence
. There must be an evidentiary basis to justify the use of the
extended power to seize under s. 489(2)(a), (b) or (c).

[73]

Mr. Fedans vehicle was lawfully seized under s. 489(2) of the
Code
without a warrant. The authorized seizure of an item generally
includes a right of examination of that item. The question is whether the
lawful seizure of his vehicle, in which he had a direct interest as its owner
and therefore in the SDM, extinguished any privacy interest he may have had in
the SDM and its data.

[74]

Prior judicial authorization to search a specific location for specific
things generally includes a reasonable examination of anything at that location
within which the specified things might be found  specific prior authorization
to search anything at that location is not required (
Vu
at para. 23).
However, in
Vu
the Court found that this conventional principle did 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 a computer that might contain a vast amount of personal information.
Therefore, judicial pre-authorization for the search of a personal computer was
required.

[75]

In this case, the police obtained a search warrant for the forensic
examination of the interior of Mr. Fedans lawfully seized vehicle. The
warrant authorized a search of that location for evidence (blood, DNA,
fingerprints, documentation) which might reasonably provide information that could
identify the driver of the vehicle involved in the double fatality. The
forensic search clearly engaged Mr. Fedans informational privacy
interests and therefore required a search warrant.

[76]

The threshold issues for determining if a search warrant is required is
whether there is a subjective expectation of privacy in the item to be seized
and examined that is objectively reasonable. The trial judge recognized that
this is not a high hurdle to be met in determining whether an accused has a
subjective expectation of privacy in their vehicle and that it can often be
presumed. In this case, however, the judge declined to make that presumption
because of the absence of evidence that Mr. Fedan was even aware that the
SDM was embedded in his vehicle. With respect, in the absence of evidence to
the contrary, in my view 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.

[77]

The more difficult question is whether Mr. Fedans presumed
expectation of privacy in the SDM translates to an objectively reasonable
expectation of privacy in its data. Context is important in this analysis.

[78]

There is a distinction to be made between the device and the data
downloaded from the device. Mr. Fedan had a territorial privacy interest
in the device; he claims to have an informational privacy interest in its data.
With respect, I am unable to see how Mr. Fedan could have any residual
territorial privacy interest in the SDM after the vehicle was lawfully seized
or any informational privacy interest in the SDM data as, standing alone, the
data provided no personal identifiers that could link Mr. Fedan to the
captured data. He therefore had no reasonable expectation of privacy in the SDM
or its data after the vehicle was lawfully seized.

[79]

In
Tessling,
the accuseds territorial privacy interest in his
home was relied on as an analytical tool to evaluate the reasonableness of
[his] expectation of privacy in the personal information the FLIR technology
produced about the activities in his home. In this case, however, Mr. Fedans
limited territorial privacy interest in his vehicle was extinguished after the vehicle
was lawfully seized. At that point in time, he no longer had any lawful right
to possess, access, use or dispose of his vehicle in any manner. He could not therefore
have had any objectively reasonable territorial privacy interest in the device.

[80]

In
Tessling,
the Court also held that the information obtained by
the FLIR technology with respect to the heat emanating from the accuseds home did
not engage the accuseds informational privacy interests because of the nature
and quality of the information that it revealed about the activities inside the
home. Binnie J. concluded at para. 62:

Certainly FLIR imaging generates
information
about
the home but s. 8 protects people, not places.
The information generated by FLIR imaging about the respondent does not touch
on a biographical core of personal information, nor does it ten[d] to reveal
intimate details of [his] lifestyle (
Plant
, at p. 293). It shows
that some of the activities in the house generate heat. That is not enough to
get the respondent over the constitutional threshold.

[81]

Similarly, in this case, the data recovered by the SDM provided no
personal information about Mr. Fedan. The captured information pertained
only to the use of the vehicle in a five-second window of time before a
deployment or near-deployment event. It did not capture any information that
revealed intimate details of Mr. Fedans biographical core, and in
particular about who was driving the car. Further evidence had to be obtained
to connect the driving of his vehicle to Mr. Fedan himself. In my view, Mr. Fedans
informational privacy interests were not engaged by the downloading of the SDM
data.

[82]

Nor do I accept Mr. Fedans analogy between the SDM and a personal
computer or a black box and therefore do not find the reasoning in
Vu
to
be applicable
.
As noted, the data recorded by the device did not extend
to personal identifiers of the driver of the vehicle. Most significantly it contained
no intimate details of the drivers biographical core, lifestyle or personal
choices, or information that could be said to directly compromise his dignity,
integrity and autonomy (
Plant
at 293).

[83]

In
Hamilton
and
Glenfield,
respectively, the courts held that
the information captured need not pertain to the applicants biographical core,
lifestyle or personal choices before a subjective expectation of privacy could be
found to be objectively reasonable. In each of those cases, citing Justice
Binnie in
R. v. M.(A.),
2008 SCC 19, the judge concluded that even though
the captured information did not rise to that level, it could still be considered
private information if the maker of the information reasonably intended it to
be private. With respect, I do not agree. In
M.(A.),
at issue was
whether the accused had a reasonable expectation of privacy in his backpack. In
distinguishing the case from
Tessling
and
Plant,
Binnie J. held
that in those cases, the information had already escaped the possession and
control of the suspect, where as in the case at hand, the guilty secret of
the contents of the accuseds backpack was not known to third parties and was
intended to be private (at para. 67).

[84]

Again, after undertaking a normative assessment of the reasonableness of
Mr. Fedans privacy claim I find it difficult to see how an operator of a
vehicle might be found to have reasonably intended the last five seconds of
information pertaining to his or her driving before a collision to be private.
Driving on a public road is a highly regulated activity that is open to public
view, as evidenced by Mr. Schneider witnessing Mr. Fedans erratic
driving 20 minutes before the accident. Had another member of the public
witnessed the collision, that person would have seen the information captured
by the SDM, albeit with less accuracy.

[85]

Nor am I persuaded that privacy as anonymity, as identified in
Spencer,
is applicable in this case.
Spencer
involved significant
informational privacy interests in the contents of the accuseds personal
computer located in his residence. The police accessed identifying information
about the appellant through an Internet Service Provider. The Court found that
the identity of a person linked by their Internet usage gave rise to a privacy
interest based on anonymity. In doing so, it noted that the Internet is a
unique public place in that a key feature of it is the ability for its users to
remain anonymous. In this case, however, there was nothing private about the
manner of Mr. Fedans driving on a public road. He admitted to driving the
vehicle at the time of the accident. In my view a privacy interest in anonymity
is not engaged in the circumstances of this case.

[86]

In sum, in the context of this case and the totality of the
circumstances, I find Mr. Fedan did not have a reasonable expectation of
privacy in the SDM and its data. His territorial privacy interest in the device
was extinguished by the lawful seizure of the vehicle and he had no
informational privacy interest in the SDM data as it contained no personal
information linking him to the operation of the vehicle at the material time. Accordingly,
I find no error in the judges finding that his s. 8
Charter
right
was not violated and in the admission of this evidence in the trial proper.

[87]

In the alternative, if a s. 8
Charter
breach was
established, I agree with the trial judge that the evidence should not be
excluded under s. 24(2) of the
Charter.
The SDM could easily have been
included in the information to obtain the search warrant had Sgt. Noonan
known that a warrant was required for its search. He did not seek a warrant
because he had received legal advice from the Department of Justice that a
search warrant was not required. Once
Hamilton
was published, his
practice changed.

[88]

The trial judge found that Sgt. Noonan acted in good faith
throughout as he was relying on a legal opinion from the Department of Justice
that a warrant was not required. There was also no apparent uncertainty in the
law at that time until the decisions in
Hamilton
and
Glenfield.
Without
any prompting, Sgt. Noonan immediately changed his practice and began
obtaining a search warrant in these circumstances. His actions throughout
supported the judges finding that he acted in good faith.

[89]

The trial judge also found that the impact of the
Charter
breach
was minimal as Mr. Fedans vehicle was destroyed and had been lawfully
seized, he was neither present nor had access to the SDM during its seizure and
search, and in any event Sgt. Noonan had reasonable grounds to obtain a
warrant for its seizure and search and would likely have obtained one.

[90]

Last, the exclusion of the evidence would have substantially weakened
the Crowns case in establishing that Mr. Fedans driving was objectively
dangerous at the time of the accident, which would have had a marked negative
impact on the truth-seeking function of the trial. The proposed evidence was non-conscripted,
accurate and reliable. As in
Hamilton
and
Glenfield,
the evidence
in these circumstances should not be excluded under s. 24(2).

[91]

In the result, I am satisfied the SDM and the data retrieved from the
device was properly admitted into evidence and I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Mr. Justice
Frankel

I AGREE:

The Honourable Mr. Justice
Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Miller,

2016 BCCA 30

Date: 20160125

Docket: CA42721

Between:

Regina

Respondent

And

Leslie
James Miller

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Provincial Court of British Columbia, dated June 7, 2013
(
R. v. Miller
, Richmond Docket 56387-2-C).

Counsel for the Appellant:

F. Arbabi and M.
  Reinhart

Counsel for the Respondent:

T. C. Gerhart

Written Joint Submission filed:

January 11, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2016

Written Reasons of the Court

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Court:

[1]

The appellant pleaded guilty to trafficking in a controlled substance,
unlawful transfer of a firearm and unlawful possession of a loaded prohibited
firearm.  He was convicted on December 18, 2012, and sentenced on June 7, 2013,
to 6 years and 6.5 months imprisonment.  At the time of sentencing, he
had been in custody for 197 days for which he received credit of 6.5 months on
a 1:1 basis, resulting in a remaining sentence of 6 years imprisonment.

[2]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
, 2014 SCC 26, he pursued his wish to appeal
his sentence.

[3]

The Crown does not oppose the granting of credit at a rate of 1:1.5.
The appellant is not otherwise disqualified from such credit under
s. 719(3.1) of the
Criminal Code
.

[4]

An extension of time for the filing of this appeal is granted and leave
to appeal is granted.  The appeal is allowed to the extent that the sentence is
reduced to 5 years and 267 days imprisonment, after allowing a credit of
a further 98 days for pre-sentence custody.

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Paquet,

2016 BCCA 31

Date: 20160125

Docket: CA43334

Between:

Regina

Respondent

And

Justin
Dwayne Paquet

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Provincial Court of British Columbia, dated June 27, 2013 (
R.
v. Paquet
, Surrey Docket 197625-3C).

Counsel for the Appellant:

L. J. Helps

Counsel for the Respondent:

E. A. Campbell

Written Joint Submission filed:

January 11, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2016

Written Reasons of the Court

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Court:

[1]

The appellant was convicted on June 19, 2013, of robbery (count 1) with
an imitation firearm (count 3), disguising his face with intent to commit an
indictable offence (count 2), and willfully resisting or obstructing a peace
officer (count 5).  He was sentenced on June 27, 2013, to 6 years
imprisonment for each of counts 1 and 2, to be served concurrently, 1 year
imprisonment on count 3, consecutive to counts 1 and 2, and 6 months
imprisonment, concurrent, on count 5.  At the time of sentencing for another
matter (June 21, 2013), he had been in custody for 201 days for which he
received credit on a 1:1 basis.

[2]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
, 2014 SCC 26, he pursued his wish to appeal
his sentence.

[3]

The Crown does not oppose the granting of credit at a rate of 1:1.5.
The appellant is not otherwise disqualified from such credit under
s. 719(3.1) of the
Criminal Code
.

[4]

An extension of time for the filing of this appeal is granted and leave
to appeal is granted.  The appeal is allowed to the extent that the concurrent sentences
on counts 1 and 2 are reduced to 5 years and 63 days imprisonment,
after allowing a credit of a further 101 days for pre-sentence custody, for a
total credit of 302 days.

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Smith,

2016 BCCA 29

Date: 20160125

Docket: CA43148

Between:

Regina

Respondent

And

Trevor
James Smith

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch

On appeal from:  An
order of the Supreme Court of British Columbia, dated September 26, 2011 (
R.
v. Smith
, Kamloops Docket 91778-2).

Counsel for the Appellant:

G. R. Kotz

Counsel for the Respondent:

E. A. Campbell

Written Joint Submission filed:

December 16, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2016

Written Reasons of the Court

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held: Appeal allowed.  The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Court:

[1]

The appellant pleaded guilty to robbery with a firearm and assault
causing bodily harm.  He was convicted on July 13, 2011, and sentenced on September 26,
2011, to 5 years and 5 months imprisonment on the first count, with 1
year concurrent on the second count.  At the time of sentencing, he had been in
custody for eight months for which he received credit on a 1:1 basis, resulting
in a remaining sentence of 4 years and 9 months imprisonment.

[2]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
, 2014 SCC 26, he pursued his wish to appeal
his sentence.

[3]

The Crown does not oppose the granting of credit at a rate of 1:1.5.
The appellant is not otherwise disqualified from such credit under
s. 719(3.1) of the
Criminal Code
.

[4]

An extension of time for the filing of this appeal is granted and leave
to appeal is granted.  The appeal is allowed to the extent that the sentence on
count 1 is reduced to 4 years and 5 months imprisonment, after
allowing a credit of a further four months for pre-sentence custody, for a
total credit of one year.

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Azaz,

2016 BCCA 35

Date: 20160126

Docket:
CA43065

Between:

Regina

Respondent

And

Brahim
Mohammed Azaz

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Provincial Court of British Columbia,
dated July 25, 2013 (
R. v. Azaz
, Vancouver Registry 227347).

Counsel for the Appellant:

C. Darnay

Counsel for the Respondent:

E. Campbell

Joint Statement on Sentence Appeal filed:

Vancouver, British
  Columbia

November 26, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 26, 2016

Written Reasons of the Court

Summary:

The appellant appeals from
sentence, seeking enhanced credit for his time in pre‑sentence custody
pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal
allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days
for each day spent in pre‑sentence custody.

Reasons
for Judgment of the Court:

[1]

On 25 July 2013, the appellant was sentenced on Vancouver
Information 227347-1 as follows:

·

Count
1: robbery, contrary to s. 344(1)(b) of the
Criminal Code
, R.S.C.
1985, c. C‑46: two years, in addition to 337 days credit for pre‑sentence
custody;

·

Count
2: use of imitation firearm, presumably contrary to s. 85(2) of the
Criminal
Code
, however the Notice of Appeal identifies the section as 85(1). The
sentence for this offence was one year, consecutive; and

·

Count 3: face masked with intent, contrary to s. 351(2) of
the
Criminal Code
: one year, concurrent.

[2]

The appellant had been in custody from 16 August 2012 until
sentencing. That was 343 days. However, counsel calculated it as 337 days.

[3]

The appellant served another sentence during that time. On 12 October
2012, he was sentenced to eight days, in addition to 52 days credit for theft.
After two‑thirds of that eight‑day sentence (five days), the
appellant would have resumed earning credit toward the robbery sentence. Thus, 57
days (52 + 5 days) of the time spent in custody from 16 August
2012 until 25 July 2013 was not available as credit toward the robbery
sentence. That leaves 286 days (343 less 57 days) spent in pre‑sentence
custody that is available for credit.

[4]

On 11 April 2014, the Supreme Court of Canada rendered judgment in
R. v. Summers
,
2014 SCC 26. The record indicates that upon learning of
Summers
, the
appellant acted in a timely manner to pursue an appeal from sentence.

[5]

Based on
Summers
, the appellant applies for an extension of time
to apply for leave to appeal, and leave to appeal if an extension is granted.
If leave is granted, the appellant appeals from sentence and seeks enhanced
credit for pre‑sentence custody at the rate of 1.5 days for every day
spent in pre‑sentence custody.

[6]

Applying that rate to the 286 days spent by the appellant in pre‑sentence
custody results in 429 days (one year and 64 days) as the maximum enhanced
credit under s. 719(3.1) of the
Criminal Code
.

[7]

The judge held that the appropriate sentence before credit for
pre-sentence time in custody would have been 1,067 days (two years plus 337
days spent in pre‑sentence custody). Subtracting 429 days from that
results in a sentence of 638 days (one year and 273 days).

[8]

The appellant and Crown agreed to conduct this appeal in writing,
without oral argument, pursuant to a protocol established by this Court for
certain post-
Summers
sentence appeals. The Crown does not oppose the
application for an extension of time, and does not oppose the granting of
credit at the rate of 1.5 days for each day spent in pre-sentence custody in
light of
Summers
.

[9]

Accordingly, an extension of time to apply for leave to appeal is
granted, leave to appeal is granted, and the appeal is allowed only to the
extent that the sentence on count 1 is reduced to one year and 273 days, in
addition to credit for 429 days (one year and 64 days) spent in pre‑sentence
custody.

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Collins,

2016 BCCA 36

Date: 20160126

Docket:
CA42886

Between:

Regina

Respondent

And

Neil
Elliott Collins

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Supreme Court of British Columbia, dated
January 20, 2014 (
R. v. Collins
, 2014 BCSC 511, Kelowna Registry 78439).

Counsel for the Appellant:

C. Darnay

Counsel for the Respondent:

T. Gerhart

Joint Statement on Sentence Appeal filed:

Vancouver, British
  Columbia

November 10, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  26, 2016

Written Reasons of the Court

Summary:

The appellant appeals from
sentence, seeking enhanced credit for his time in pre‑sentence custody
pursuant to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal
allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days
for each day spent in pre‑sentence custody.

Reasons
for Judgment of the Court:

[1]

On 20 January 2014, the appellant was sentenced on Kelowna Information 78439
as follows:

·

two
counts of possessing controlled drugs for the purpose of trafficking, contrary
to s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996,
c. 19: three and one‑half years (1,277 days) for each count, served
concurrently, less credit of 76 days for pre‑sentence custody, for a net
sentence of 1,201 days imprisonment.

·

one count of possession of stolen property, contrary to s. 355(b)
of the
Criminal Code
, R.S.C. 1985, c. C‑46: three and one‑half
years (1,277 days), served concurrently, less credit of 76 days for pre‑sentence
custody, for a net sentence of 1,201 days imprisonment.

[2]

The appellant had been in custody for 76 days prior to sentencing.

[3]

On 11 April 2014, the Supreme Court of Canada rendered judgment in
R. v. Summers
,
2014 SCC 26.

[4]

Based on
Summers
, the appellant applies for an extension of time
to apply for leave to appeal, and leave to appeal if an extension is granted. If
leave is granted, the appellant appeals from sentence and seeks enhanced credit
for pre‑sentence custody at the rate of 1.5 days for every day spent in
pre‑sentence custody.

[5]

Applying that rate to the 76 days spent by the appellant in pre‑sentence
custody results in 114 days as the maximum enhanced credit under s. 719(3.1)
of the
Criminal Code
.

[6]

The judge held that the appropriate sentence for all three counts before
credit for pre‑sentence time in custody would have been three and one-half
years (1,277 days) served concurrently. Subtracting 114 days from that
results in a sentence of 1,163 days.

[7]

The appellant and Crown agreed to conduct this appeal in writing,
without oral argument, pursuant to a protocol established by this Court for
certain post‑
Summers
sentence appeals. The Crown does not oppose
the application for an extension of time, and does not oppose the granting of
credit at the rate of 1.5 days for each day spent in pre‑sentence custody
in light of
Summers
.

[8]

Accordingly, an extension of time to apply for leave to appeal is
granted, leave to appeal is granted, and the appeal is allowed only to the
extent that the sentence is reduced to 1,163 days, in addition to credit for 114
days spent in pre‑sentence custody.

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gill,

2016 BCCA 37

Date: 20160126

Docket:
CA42987

Between:

Regina

Respondent

And

Manraj
Singh Gill

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock

On appeal from:  An
order of the Provincial Court of British Columbia,
dated December 6, 2013 (
R. v. Gill
, Abbotsford Registry 79484).

Counsel for the Appellant:

G. Barriere

Counsel for the Respondent:

T. Gerhart

Joint Statement on Sentence Appeal filed:

Vancouver, British
  Columbia

October 21, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  26, 2016

Written Reasons of the Court

Summary:

The appellant appeals from
sentence, seeking enhanced credit for his time in pre-sentence custody pursuant
to R. v. Summers, 2014 SCC 26. The Crown consents. Held: appeal
allowed. The appellant is entitled to enhanced credit at the rate of 1.5 days
for each day spent in pre‑sentence custody.

Reasons
for Judgment of the Court:

[1]

On 6 December 2013, the appellant was sentenced on Abbotsford
Information 79484-1 as follows:

·

one
count of possessing controlled drugs for the purpose of trafficking, contrary
to s. 5(2) of the
Controlled Drugs and Substances Act
, S.C. 1996,
c. 19: 28 months imprisonment served concurrently, in addition to credit
of three months for pre‑sentence custody.

·

one count of possession of ammunition while prohibited from doing
so, contrary to s. 117.01(1) of the
Criminal Code
, R.S.C. 1985,
c. C‑46: 28 months imprisonment served concurrently, including
credit of three months for pre‑sentence custody.

[2]

The appellant had been in custody from 5 September 2013 until sentencing.
That was 92 days.

[3]

On 11 April 2014, the Supreme Court of Canada rendered judgment in
R. v. Summers
,
2014 SCC 26.

[4]

Based on
Summers
, the appellant applies for an extension of time
to apply for leave to appeal, and leave to appeal if an extension is granted.
If leave is granted, the appellant appeals from sentence and seeks enhanced
credit for pre‑sentence custody at the rate of 1.5 days for every day
spent in pre‑sentence custody.

[5]

Applying that rate to the 92 days spent by the appellant in pre-sentence
custody results in 138 days as the maximum enhanced credit under s. 719(3.1)
of the
Criminal Code
.

[6]

The judge held that the appropriate sentence for robbery before credit
for pre‑sentence time in custody would have been 31 months (28 months
plus three months spent in pre‑sentence custody). Subtracting 138 days
from that results in a sentence of 26 months and 12 days.

[7]

The appellant and Crown agreed to conduct this appeal in writing,
without oral argument, pursuant to a protocol established by this Court for
certain post‑
Summers
sentence appeals. The Crown does not oppose
the application for an extension of time, and does not oppose the granting of
credit at the rate of 1.5 days for each day spent in pre‑sentence custody
in light of
Summers
.

[8]

Accordingly, an extension of time to apply for leave to appeal is
granted, leave to appeal is granted, and the appeal is allowed only to the
extent that the sentence is reduced to 26 months and 12 days, in addition to
credit for 138 days spent in pre‑sentence custody.

The Honourable Chief Justice Bauman

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Willcock