From Black Boxes to CCTV Footage: A Lawyer’s Guide to Securing Evidence from the Scene

Matthew Pearn & Joselyn Sceeles | September 26, 2025

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When we first start our work on a litigation file, it is an important part of our job as lawyers to assemble and then marshal the critical evidence which our clients need to prove their case. At times, that evidence can be fleeting or almost non-existent. However, in a data-rich world, there is often hidden evidence to be identified, preserved, and ultimately used to our clients’ advantage.

Consider this scenario: It’s a snowy February evening in Fredericton. Your client is driving home along Smythe Street when another vehicle travelling along Prospect Street barrels through the intersection of the streets, causing a collision. The other driver insists your client blew through a red light. A passerby swears it was the other way around. Your client, meanwhile, is in shock and can’t recall the colour of the light at all. Police attend, but by the time they arrive, the intersection is cleared, the witnesses are gone, and the snow has conveniently obscured any skid marks. On the face of it, it looks like a classic he said / she said with no way to break the tie. Nothing to work with… right?

But wait. That intersection has a traffic camera operated by the City of Fredericton. A nearby home has a Ring doorbell camera pointed at the intersection. While your client’s vehicle is an older model, the defendant’s 2025 Honda Civic is equipped with an Advanced Driver Assistance System (ADAS) and Info-tainment system: a camera at the top center of the windshield capturing video and audio, and also a Bluetooth system which tracks whether the driver was on their phone during the collision. Finally, inside your client’s car sits the Event Data Recorder (EDR)—that little black box no one ever thinks about—quietly logging speed, braking, and seatbelt use at the precise moment of impact. What first looked like a hopeless evidentiary void reveals itself to be a data-rich case, provided you know how to ask for it, preserve it, and use it.

Legal Mechanics: General Principles of Evidence Preservation and Access

When an accident occurs and a client comes to us with a claim, we lawyers must act quickly to assess what evidence exists, determine who controls it, and initiate a clear chain of custody. To protect its admissibility, we often need to work with experts to preserve “perishable” electronic and physical evidence. “

When an accident occurs and a client comes to us with a claim, we lawyers must act quickly to assess what evidence exists, determine who controls it, and initiate a clear chain of custody. To protect its admissibility, we often need to work with experts to preserve “perishable”electronic and physical evidence. 

While we will later explore a wider range of available evidence in detail, the same basic principles and questions apply across the board: who owns the data, and how can it be obtained or preserved for future use? 

Preservation Letters

It is essential to take appropriate steps to preserve evidence that may become irretrievable later. For example, in a motor vehicle collision, the vehicle involved could change hands and be taken as salvage by an insurer or be sold over to another party. Seat-belt marking, EDR, and other evidence left on the body of the vehicle can be lost. If the vehicle is still roadworthy, other forms of electronically stored information may be lost to overwriting. 

Rule 35 of the New Brunswick Rules of Court provides a formal legal mechanism to protect evidence. Pursuant to Rule 35.02, the court may order the custody, detention, or preservation of any property in question or relating to an issue in the proceeding. This rule allows parties to seek court intervention to secure physical evidence when there is a risk that it may be lost, destroyed, or otherwise rendered unavailable.

In addition to Rule 35, sending preservation requests to the opposing party (and perhaps others) helps to ensure that potentially relevant evidence is protected from spoliation. Failure to comply with a preservation request can have important consequences. Spoliation or destruction of relevant information may lead to sanctions, adverse inferences, or other remedies against non-cooperative parties. Proactively sending a preservation letter helps mitigate these risks by formally documenting the obligation and putting recipients on notice of their legal duties. It is also important to note that most forensic engineering firms offer preservation services for a relatively modest cost. These companies can obtain and securely store data to safeguard evidence.

The proliferation of electronically stored information (ESI) is reshaping principles of preservation and production in civil litigation. While the Rules of Court remain the primary source of authority in New Brunswick, many other provinces have expressly adopted The Sedona Canada Principles Addressing Electronic Discovery. The Sedona Canada Principles provide detailed, practical standards. Principle 3 provides that: 

“As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.”

The commentary accompanying the Sedona Canada Principles outlines the requirements for a preservation letter. The notice should clearly outline the types of information to be preserved and emphasize that ESI is particularly vulnerable, requiring careful handling to prevent any alteration, deletion, or destruction. 

The New Brunswick Court of Appeal addressed the Sedona Canada Principles in Wawanesa Mutual Insurance Company v. Wade, 2015 NBCA 43. In that case, Wawanesa urged the court to apply the Sedona Principles. Although the motion judge reproduced portions of Wawanesa’s submissions on the Principles, he did not specifically address them in his reasons. On appeal, Justice Green concluded that this was not an error. He explained that New Brunswick has not amended its Rules to incorporate the Sedona Principles, nor have any practice directives been issued by the New Brunswick courts. While Justice Green cautioned that reliance on the Sedona Principles alone could lead to error, it remains that the Principles nonetheless provide helpful guidance, so long as they remain consistent with the Rules.  

RTIPPA and PIPEDA Requests for Information

The Right to Information and Protection of Privacy Act (RTIPPA) applies to all public bodies and establishes their accountability by granting a right of access to public records while also protecting the personal information they hold.  If you suspect that a public body possesses information critical to your case, the first step is to consider which form of request is required. There are two categories of requests under RTIPPA. The first is a general request for information of a non-personal nature, which may be released to anyone. The second is a personal information request, commonly referred to as an ATIP (Access to Information and Privacy) request, which applies to records not generally available to the public. For example, government-owned street camera footage containing identifiable images of individuals is considered personal information and must be obtained through an ATIP request. Conversely, the location of every government-owned street camera located within a municipality is not personal information. Neither type of request to a government office carries an associated cost, and both may be submitted either through online forms or by written letter.  

Section 9 of RTIPPA mandates that public bodies make every reasonable effort to assist an applicant promptly, fully, and in an open and accurate manner. Public bodies are required to respond to information requests within 30 days. Oftentimes, a public body will self-extend this period to 60 days. If an applicant is dissatisfied with the outcome of their request (i.e. a partial or complete refusal to disclose), there are two possible courses of action. 

The first option is to refer the matter to Ombud New Brunswick. In this case, a complaint must be filed within 40 days from the date the response was received. Ombud New Brunswick provides a complaint form that must be completed, along with a copy of the initial request and a description of the reasons for dissatisfaction. 

The second option is to refer the matter to a judge of the Court of Kings Bench. The same 40-day limitation period applies, and a Referral Form (Form 1) must be submitted along with the supporting documents. For further details on the investigation and resolution process, applicants may consult the Ombud New Brunswick website.

Preliminary Motions for Production of Non-Party Data

Crucial evidence may be owned or in the possession of persons or businesses who are not parties to the litigation. Preliminary Motions for examinations under oath and for production of non-party documents can be very helpful in retrieving information you may need to commence your suit (both in the naming of proper defendants and also in confirming key allegations for within your Statement of Claim).

Oftentimes, there are intersections between a criminal prosecution and a related civil claim (e.g. physical/sexual assault, reckless driving causing death). In criminal matters, Section 487 of the Criminal Code allows a peace officer or public officer to apply for an Order preserving or producing information held by a non-party, although in certain cases, a warrant may still be required. While outside the scope of this paper, we note that the contents of a criminal investigation, including an RCMP accident reconstruction file, may be very important to your own related civil claim.  

In civil matters, counsel would typically begin by delivering the non-party (such as a property owner with a video surveillance system) with a preservation request and request for disclosure. If the request is refused, counsel may bring a Preliminary Motion (Form37B) even before the action is filed under Rule 31.11 of the Rules of Court for production of a document held by a non-party, or under Rule 32.12 of the Rules of Court for an Order permitting a preliminary examination of a non-party when the civil action has not yet been filed. As noted above, a lawyer could consider a motion for relief under Rule 35.01 for inspection and preservation of evidence needed to resolve a claim.

Video Surveillance - CCTV & Home Security Systems 

A significant source of “perishable” surveillance evidence comes from privately owned video recording systems operated by businesses and individuals. These include CCTV cameras installed at busy traffic intersections, in parking lots, storefronts, and business interiors, as well as home security systems and consumer devices such as Ring / Nest doorbell video cameras. 

Unlike municipal surveillance, privately operated systems are generally installed to safeguard property and monitor access. Devices such as doorbell cameras are typically positioned to capture images of people, vehicles (and license plates), and other items brought to the door. This type of footage can provide not only direct identification but also circumstantial evidence of behaviour, activities, or patterns that may support a case.

Beyond this are other spaces occupied by the public which are video recorded. These can include hospital waiting rooms and laparoscopic surgical suites, and government-owned buildings open to the public like Service Canada / Service New Brunswick. 

Private surveillance data is not governed by RTIPPA and therefore cannot be obtained through an Access to Information (ATIP) request. Surveillance operated by a business, however, is regulated by the Personal Information Protection and Electronic Documents Act (PIPEDA), which imposes rules on consent, purpose, safeguards, and access. Personal or domestic surveillance (e.g., home doorbell cameras) falls outside of the purpose of both statutes, though other legal remedies may apply in cases of misuse. 

While PIPEDA grants individuals the right to access their own personal information, it does not compel disclosure of surveillance data to third parties. Access to both business-held and private footage ultimately depends on the context of legal or administrative proceedings. 

1. Publicly Operated Surveillance Cameras

Courts often rely upon surveillance evidence from publicly operated video cameras, such as intersection cameras, traffic speed enforcement cameras, and surveillance systems in high-theft or high-traffic public areas. These cameras are typically owned and managed by municipalities, but also by other levels of government and by crown corporations (e.g. Horizon Health & Vitalité Health Network). Where the footage often contains identifying imagery, it is classified as personal information and therefore subject to the RTIPPA. 

Pursuant to sections 43 and 44 of the RTIPPA, municipalities must ensure that any collection or use of personal information is legally authorized and that their use of surveillance is necessary and tied to a specific purpose. Since surveillance involves the collection of personal data, such systems are not deployed everywhere; however, where they do exist, municipalities are required to respond to ATIP requests. Persons seeking access to images of themselves held by a public body must generally submit an ATIP request to the relevant public body. 

In the recent decision of Kennedy v. Restigouche Hospital Centre, 2021 NBQB 151, the applicant (a hospital patient) was denied his RTIPPA request to obtain video surveillance of himself in hospital held by the Vitalité Health Network. Kennedy made application to court to appeal the denial of video disclosure. Justice Landry ultimately ordered the respondent to provide a copy of the video of him in hospital, pursuant to section 7(1) of RTIPPA, subject to blurring the images of others shown. Similarly, in the unreported decision of Ronald McAleer c. Vitalié Health Network, Justice Ivan Robichaud held that video surveillance recordings of a hospital parking lot, which captured images of identifiable individuals, constituted the collection of personal information. In that case, the requesting party was investigating a civil claim, and while not provided a copy to keep, the party was allowed to view the video.  

Recordings from facilities held by health authorities can prove helpful within medical malpractice litigation (e.g conduct in a surgical suite and patient neglect in an emergency room). Recordings of common areas/parking lots could prove helpful in a slip-and-fall accident or pedestrian-car collision. Keep in mind that while RTIPPA production may be limited to seeing images of the client, once a Plaintiff demonstrates that video evidence exists, the Plaintiff can request unredacted disclosure and production pursuant to Rule 31. Similarly, this can be used as foundation for an Order under Rule 32 for production from a non-party (see Raymond v. Halifax Regional Municipality, 2020 NSSC 316, Kent v. Kent, 2010 NLCA 53, for discussion on seeking video evidence relevant to a plaintiff’s claim).

2. Privately Operated / Owned Surveillance Cameras

In the context of home security devices, courts have drawn important distinctions on whether or not to order disclosure based on the nature and location of the recordings. In Chan v Pham, the British Columbia Supreme Court considered whether non-party doorbell camera footage of a motor vehicle accident was producible. The plaintiff sought production of videos obtained by the defendants as the result of an independent investigation conducted by their insurers. The defendants resisted production on the basis of litigation privilege. The Court rejected this argument, holding that the footage was not privileged because it had not been created for the dominant purpose of litigation. Moreover, given that the recordings were made of a public location, no heightened privacy interests prevented disclosure. At the same time, the Court stressed that parties must rely on the proper procedural mechanisms under the Rules of Court to obtain non-party evidence, rather than attempting to secure production informally. 

By contrast, cases involving recordings inside the home raise more complex privacy concerns. In Ibrahimova v Cavanagh, the Ontario Superior Court declined to order production of a plaintiff’s own in-home surveillance in a medical malpractice action where the footage was sought by the defendants to challenge the plaintiff's claim for damages. The Court acknowledged that the recordings were relevant and material to a live issue but emphasized that the plaintiffs had a significant expectation of privacy in their home. The footage had been created for safety purposes, not intended for public use, and other reliable evidence had already been produced. In these circumstances, the plaintiffs’ privacy interests outweighed the probative value of the requested disclosure.

Together, these cases underscore that the admissibility and production of home surveillance footage turn on context. Surveillance taken of public settings, where privacy expectations are minimal, is more likely to be ordered (if relevant). Conversely, recordings made within the privacy of the home attract a heightened expectation of privacy that can outweigh the evidentiary value of production even when the material is relevant to the dispute.

Vehicle-Specific Evidence 

1. Black Box / EDR Data

A ‘Black Box,’ also known as an Event Data Recorder (EDR), is a small device located within a vehicle’s Airbag Control Module (ACM). The EDR records and stores data generated by the ACM, including information on airbag deployment, acceleration, seatbelt usage, brake position, cruise control, dashboard lights, tire pressure, wheel torque, ABS activity, to list a few. Essentially, the EDR captures 5–8 seconds of a vehicle’s pre and post-crash activity, providing an accurate record of the events leading up to, and during, a collision. The scope of data collected varies depending on the vehicle’s make, model, and year.

Obtaining EDR data requires a trained expert, as auto dealerships and typical repair shops do not have access to the specialized equipment, such as a Bosch Crash Data Retrieval (CDR) kit. Once retrieved, the data must be interpreted using specialized software, which requires expert training to understand. Additionally, EDR data must be analyzed in conjunction with physical evidence to provide full context. Therefore, accident reconstruction experts (private experts and police) are uniquely set up to evaluate the data and to create related reports. Despite the complexity in obtaining this information, this data is objective, unbiased, and highly accurate, making it crucial in many cases where liability is an issue. 

Ownership and access to the black box data depend on the circumstances. In fatal collisions, the RCMP or local police will usually have an expert who retrieves the black box data at the scene as part of their investigation. A court order may be required to access the data later if the vehicle is not in police custody or if additional criminal proceedings necessitate it. Once any criminal proceedings are concluded, the report can generally be requested directly from the analysts, or in the alternative, the court will order production. In other cases, such as when the vehicle has been deemed unrepairable and is now owned by an insurance company, the process differs slightly. Insurance companies will typically allow an expert to analyze the data upon request, even for opposing counsel, as the information is unbiased. It is common practice for each side’s expert to image the data in the presence of the other, with reports exchanged afterward to ensure transparency.

The greatest hurdle is time. Delays in obtaining a file or downloading the evidence at the collection stage can make critical data inaccessible. For most vehicles, EDR systems overwrite approximately every 250 kilometres and only retain a limited number of significant events. Post-crash haste is necessary to ensure that any subsequent disruptions/impacts to a vehicle which is still driveable do not inadvertently add to or alter data in the box. Acting quickly is essential. This may involve tracking down the vehicle, establishing its connection to a relevant legal proceeding, and arranging for secure storage. 

2. Advanced Driver Assistance System & Infotainment Systems 

While Event Data Recorders (EDRs) have been in vehicles since around 1999, more advanced technologies—such as Advanced Driver Assistance Systems (ADAS) and Info-tainment systems—are newer and generally found in models from 2015 onward. These systems can capture data beyond what the traditional black box records.

The ADAS uses a series of cameras and sensors to scan the road, detect obstacles, pedestrians, and other vehicles, storing this information similarly to an EDR. Videos collected by the ADAS system is clear evidence that stands on its own. Info-tainment systems, on the other hand, are the vehicle's central command centre, recording user interactions with the vehicle, including logged GPS locations, calls, and media usage. The major difference between information collected by the Info-tainment system versus the black box data is that while the EDR records what the car was doing, the Info-tainment system records what you were doing with the vehicle's features. By connecting to the Bluetooth in a car, the Info-tainment system records how many times a phone is answered while the vehicle is running. It registers what information/app is being looked at and records text conversations and search histories. This data can provide direct insight into driver behaviour and possible distractions, offering a more immediate and compelling form of evidence. The biggest challenge in collecting this type of data is that it crosses into personal information, making it much harder to obtain. As such, Plaintiff counsel attempting to retrieve data from a defendant’s vehicle must obtain consent from the vehicle owner.

Practical Realities & Common Pitfalls

Even where the legal framework for accessing vehicle data or surveillance footage is clear, lawyers often face significant practical challenges. 

Timing is critical because surveillance footage is frequently overwritten or deleted within days or weeks, which makes early preservation requests essential. Similarly, the opportunity to retrieve EDR data and other evidence from a vehicle can be lost if the vehicle is sold for salvage.

Costs can also be a prohibitive factor in retrieving vehicle data. Extracting and interpreting this data often requires experts, specialized equipment, and preservation expense. 

Privacy considerations also play a central role when seeking video evidence. Recordings made in public spaces, where expectations of privacy are low, are more likely to be disclosed, whereas footage from inside a private residence attracts a much higher expectation of privacy. 

While considering Right to Information requests, courts consider the rights of individuals inadvertently captured in video footage and who are not connected to the request, recognizing that disclosure could expose them to unnecessary intrusion. 

In addition, cooperation with opposing counsel, private non-parties, or public bodies can effect the efficiency with which evidence is obtained. Ultimately, success depends not only on knowing the statutory and court-based mechanisms for access, but also by taking a proactive approach to preservation and collection from the very outset of your engagement in a legal dispute.

Conclusion

The evidentiary landscape in modern litigation is increasingly shaped by the availability of vehicle-specific data and surveillance footage. From EDRs and ADAS, Info-tainment systems, municipal street cameras, and private security devices, each source offers unique opportunities and challenges for proving or defending liability. 

While the legal mechanisms for accessing this information are well-established, a lawyer’s success in obtaining these materials depends on more than simply knowing the law. 

Counsel must act quickly to preserve evidence, anticipate ownership and privacy issues, and manage the costs and logistics of expert involvement. 

Whether through an ATIP request, a motion for third-party production, or a preservation order, the lawyer who recognizes where critical data may reside and takes proactive steps to secure it will be positioned to turn fleeting, overlooked information into decisive evidence.