Case Overview: R. v. Attard, 2024 ONCA 616

Court: Ontario Court of Appeal Date: August 16, 2024 Panel: Gillese, van Rensburg, and Roberts JJ.A.

Facts:

Wendel Attard was charged with dangerous operation of a motor vehicle causing bodily harm after a serious crash in Brampton, Ontario. At trial, the Crown sought to admit data from the vehicle's Event Data Recorder (EDR), which logged details such as speed, throttle, and braking in the five seconds before impact. The data showed Attard was speeding—up to 130 km/h in an 80 km/h zone.

Police had seized the car and extracted the EDR without a warrant or consent, relying on s. 489(2) of the Criminal Code.

Trial Decision:

The trial judge excluded the EDR evidence, finding:

• The police lacked reasonable grounds under s. 489(2) to seize the vehicle.
• Attard had a reasonable expectation of privacy in the EDR data, engaging s. 8 of the Charter.
• Under s. 24(2), the exclusion of the evidence was necessary to uphold the integrity of the justice system.

Attard was acquitted due to insufficient evidence of speed and acceleration without the EDR.

Court of Appeal Ruling:

The Court of Appeal allowed the Crown’s appeal, finding three key errors in the trial decision:

1. The seizure was lawful: Officer Ball had reasonable grounds under s. 489(2)(c) based on witness accounts, dashcam footage, and the scene’s severity.
2. No reasonable expectation of privacy in the EDR data once the vehicle was lawfully seized—echoing appellate decisions from B.C. (Fedan) and Saskatchewan (Major).
3. The exclusion under s. 24(2) was an error. Given the legal uncertainty around EDR privacy at the time and the reliability and importance of the evidence, the data should have been admitted.

Outcome:

The acquittal was set aside. A new trial was ordered, with the EDR evidence to be admitted.