Confession Box

by Carroll McCormick

MONTREAL, Que. – A recently concluded criminal case in Montreal suggests that using speed and braking information from car “black boxes” to reconstruct the final seconds before an accident is a court novelty and maybe even a threat to civil liberties.

But in the commercial truck sector, police and insurance companies routinely use electronic truck engines’ Engine Control Unit (ECU) data in accident investigations.

ECUs and Vehicle Control Units (VCU) are capable of collecting, storing and transmitting vast amounts of data on scores of variables, including engine RPM, shifting, idle time, braking, vehicle speed, vehicle location and when engines are started and stopped.

“When there is an accident we use the black box (the CPU) so we can learn exactly if the trucker is responsible for the accident or not. We can tell what speed the driver was (going at) and his reaction time.

“Most of the time it benefits our insured, because we can demonstrate that he is not responsible for the accident,” says Suzie Pellerin, communications director for the Montreal-based insurance company Axa.

Bill Johnstone, branch manager, global tech services for Crawford Canada, the country’s largest adjustment firm, echoes Pellerin’s comment: “…you can go to the insurance company with manual logs or computer print outs on the power units. Most people are willing to provide this information. I don’t know of anyone who has refused. Generally, most reputable companies provide insurance companies with the information they need to complete an investigation and identify liability.”

Still, trucking companies should not simply release to authorities data stored in the CPU or VCU, or which has been transmitted to home base, says Francois Rouette, transportation lawyer and partner in the Quebec law firm Cain, Lamarre, Casgrin Wells.

“The rule is always the same when you are supposed to be accused of anything and are liable to be accused of anything: You have the right to remain silent. There is no obligation to volunteer information.”

This sounds like boilerplate lawyer advice, but it is all about controlling how information can and will be used, especially if an accident lands a driver and his company in court.

Rouette acknowledges that more often than not engine and vehicle data helps his clients but, he warns, “…it may create problems down the road, as more sophisticated information can help us get hanged.”

And, of course, lawyers are, of strategic necessity, expert at controlling how information is used in court.

“As long as the information from the black box is obtained legally, I think that the positives of having this information available is greater than the negatives,” says Rouette.

However, he adds, “It is a case-by-case thing. I think that any evidence that can be analyzed by an expert and can be determined to aid – once it is legally in the hands of the police – it should be able to be used in court.

“On the sole basis of this, I think it is a stretch to use this to get a conviction.

“The evidence of high speed can be entered (in evidence) but that doesn’t prove anything else other than the trucker was speeding. You have to consider other conditions.

“The evidence can only be used with other evidence, to lead to a conclusion that a crime was committed.”

One case Rouette cites was that of a Quebec-based trucker who hit a police car about three years ago.

“The police seized everything. The trucker was a client of mine. The Ontario Provincial Police called me for authorization to use the vehicle and engine information they had obtained.”

The driver was acquitted of criminal charges, Rouette notes.

Quebec’s provincial police force, the Suret du Qubec and suitably equipped metro police forces obtain warrants for CPU data as a matter of policy, according to media spokesperson agent Gilles Mitchell.

“In the case where there is a collision, we automatically have to get a warrant for the inspection because it is more like a search warrant.”

Rouette comments, “You don’t need a search warrant for anything that is out in the open. The contents of the black box are not out in the open. The evidence will be thrown out if it is not obtained legally because people are protected against unreasonable search and seizure under the Charter.”

The Quebec Trucking Association (QTA) currently has no official position on the use of CPU data for accident investigations, but recently decided to develop a training course that would teach its members how to reply to journalists, ambulance attendants, police, firemen – anyone involved in an accident, in order to protect themselves and not incriminate themselves.

The course will be developed in 2004 and might be ready to give as early as the fall.

Who knows, maybe the course will include a section on how CPU data is used in accident investigations.

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