Court of Appeal for Ontario

Date: 2022-07-26 Docket: C69859

Tulloch, Huscroft and Miller JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Michael Chow Respondent

Counsel: Amy Rose, for the appellant Danielle Robitaille, for the respondent

Heard: February 23, 2022 by video conference

On appeal from the order of Justice Susan G. Himel of the Superior Court of Justice, dated November 2, 2020, dismissing an appeal from the acquittal entered on January 29, 2020, by Justice Joseph W. Bovard of the Ontario Court of Justice.

Huscroft J.A.:

Overview

[1] A man rents an apartment from a stranger for a short-term visit to Toronto. The apartment will be his home for the duration of the visit: he will sleep there, eat meals, use the bathroom, and perform any number of daily tasks there. He may meet with friends at the apartment. He may have sex there.

[2] He will presume that the apartment is a safe place to stay – that he will enjoy privacy while he stays there. However, he soon finds a hidden camera in the apartment. The camera is pointed at his bed.

[3] He calls the police, who visit the apartment at his request. The police investigate and the apartment owner is charged with the offence of voyeurism.

[4] And the apartment owner is acquitted.

[5] He is acquitted because the trial judge finds that he has a reasonable expectation of privacy in the apartment he rented to the man whose privacy he was charged with violating. The police acted wrongly when they entered and searched the apartment at the complainant’s invitation to investigate the alleged crime, and wrongly seized the device alleged to have been used in committing the voyeurism offence. The evidence is excluded and the respondent is acquitted of the voyeurism charge. This decision is upheld by the summary conviction appeal judge, who finds that “none of the officers demonstrated any understanding of the constitutional rights of the owner of the property”.

[6] The decisions below are erroneous. As I will explain, the respondent did not have a reasonable expectation of privacy in the apartment he rented to the complainant at the relevant time: the time of the impugned police actions. In the absence of a reasonable expectation of privacy there was no search within the meaning of s. 8 of the Charter, and hence no breach of the respondent’s s. 8 rights, when the police entered the apartment at the complainant’s request. Further, the hidden camera alleged to have been used to commit the voyeurism offence was properly seized pursuant to s. 489(2)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The evidence should have been admitted.

[7] I would allow the appeal, set aside the acquittal, admit the excluded evidence, and order a new trial.

Background

[8] I will canvass the facts only briefly. The prosecution proceeded on the basis of an agreed statement of facts, which is set out at appendix A.

[9] The respondent owns a Toronto apartment he rents to third parties through the Airbnb company. The complainant rented the apartment for a ten-day period during the Toronto International Film Festival and checked into the apartment on September 6, 2018. During the night of September 7, the complainant was bothered by light coming from what appeared to be an ordinary alarm clock on a table facing the bed and moved his bag in front of the clock to block the light. In the morning of September 9, the complainant noticed that his camera bag had been moved and was no longer in front of the alarm clock. A message left by the respondent indicated that he had been in the apartment and left some coupons for the complainant.

[10] The complainant inspected the alarm clock and discovered that it contained a concealed camera. He notified Airbnb, which instructed him to check into a hotel and call the police. The complainant did so and returned to the apartment with Police Constable Lewis. The complainant took PC Lewis into the bedroom and showed him the alarm clock. PC Lewis seized the device on the instructions of Detective McDonald, whom he consulted by telephone. He took it to the police station, where it was inspected by Detective Constable Wallace the next day.

[11] DC Wallace discovered that the device had a memory card, so he returned it to the property locker. He obtained and executed a warrant to search the device and its memory card. Among other things, the memory card contained video of an unidentified man (not the complainant) masturbating in the apartment bedroom. Police obtained a warrant to search the respondent’s home at 53 Longboat Avenue. Nothing from this location was seized.

[12] The respondent was charged with voyeurism. He brought an application to exclude the evidence, alleging a violation of s. 8 of the Charter.

The trial judge’s decision

[13] The trial judge found that the subject matter of the search was the Airbnb apartment as well as the clock-camera. The respondent was the sole owner of the apartment and had control over it, so he had a strong interest in the apartment and its contents. The trial judge found that there was scant evidence as to the respondent’s use of the Airbnb apartment, but that he had been there on four occasions as shown on the clock-camera footage. He had some possessions at the apartment and a subjective expectation of privacy, but less than he would have if the apartment were his full-time home. The trial judge also found that the respondent had a reasonable expectation of privacy in the clock-camera and the contents of the memory card.

[14] The trial judge found that the respondent’s expectation of privacy was objectively reasonable based on his ownership of the apartment, control over it, occasional usage, and regulation of its usage by others. The trial judge considered that the respondent’s expectation of privacy was reduced by renting the apartment, but he found there was no evidence as to the nature of the rental agreement with the complainant and so no basis to conclude that the respondent had granted exclusive use and possession of the apartment to the complainant. The trial judge described the suggestion that the complainant had exclusive use and possession of the apartment as “mere speculation”, given that the respondent had entered the apartment using his key and left coupons and a note for the complainant during his stay. The trial judge found there was not enough evidence to conclude that the respondent and complainant were in a landlord-and-tenant relationship, but it was possible to infer from the evidence that the respondent “retained a significant measure of mutually agreed upon control of the apartment”. The trial judge found that the respondent’s expectation of privacy in the clock-camera was also objectively reasonable, as his ownership of and control over the contents of the apartment included the device and its contents.

[15] The trial judge found that the complainant’s invitation to the police to enter and search the apartment without a warrant and seize the clock-camera violated the respondent’s reasonable expectation of privacy. He rejected the Crown’s argument that the seizure of the clock-camera was authorized under s. 489(2)(b) of the Criminal Code, finding that the police thought only that there was a possibility that the offence of voyeurism had been committed using the device – a suspicion as opposed to reasonable and probable grounds. The clock-camera was not on its face evidence of a criminal offence. The trial judge found that the warrantless search of the device also violated s. 8, but the warrant obtained subsequently was validly issued.

[16] Turning to s. 24(2), the trial judge found that the cumulative effect of the three searches was a serious breach of the respondent’s rights. The impact of the breach on the respondent was serious. There was a “pattern of careless conduct by the police that led them to commit multiple breaches” of the respondent’s Charter rights. In these circumstances, admission of the evidence would bring the administration of justice into disrepute.

The summary conviction appeal judge’s decision

[17] The summary conviction appeal judge (“the appeal judge”) considered that this was a case of “overlapping interests in the premises”: the respondent owned the apartment and had access to it during the time it was rented to the complainant, while the complainant had the use of the apartment and the right to invite others into it. Neither party’s rights were “extinguished” during the relevant period of time. The respondent had a reasonable expectation of privacy in the apartment and in its possessions, albeit perhaps a diminished one. But the complainant also had the right to control the apartment during the relevant time.

[18] The appeal judge found that the complainant had the right to admit the police into the apartment. However, she agreed with the trial judge that the complainant could not authorize the police to search the apartment or inspect the respondent’s possessions. The complainant’s privacy interests could not “override” the respondent’s, nor could he “waive” the respondent’s privacy interests by providing consent to the police to search the apartment. The police search was a warrantless search and so presumptively unreasonable.

[19] The appeal judge found that although the officer might have had a subjective belief, there was no objectively reasonable basis to believe that an offence was being or had been committed. The conditions set out in s. 489(2) were not met. The appeal judge found there was no suggestion of urgency in searching the apartment or seizing the clock-camera without a warrant. The police also breached the respondent’s s. 8 rights by opening the device to see if it contained a memory card.

[20] In summary, the appeal judge found two breaches of the respondent’s s. 8 rights: the search of the apartment and seizure of the clock-camera by PC Lewis, and the search of the device once it was in police custody. She agreed with the trial judge that the administration of justice would be brought into disrepute by including this evidence at trial, stating that there was “absolutely no reason” why the police did not obtain a search warrant.

Discussion

[21] The case law governing unreasonable search and seizure establishes a lengthy list of considerations that are relevant in determining whether a reasonable expectation of privacy exists, but these factors are not to be applied mechanically. It is well established that the reasonable expectation of privacy is a normative concept: see for example, R. v. Mills, 2019 SCC 22, [2019] 2 S.C.R. 320, at para. 20; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 136-137; and R. v. Reeves, 2018 SCC 56, [2018] 3 S.C.R. 531, at para. 28. This means, in part, that in determining the application of s. 8, the question is not limited to whether a reasonable expectation of privacy has already been recognized in the case law. The court considers whether a claim to privacy should be recognized – in other words, whether it is deserving of constitutional protection in the unique circumstances of each particular case. The answer to that question can be determined only by careful consideration of the interests and values of a free and democratic society that are in competition in each case.

[22] In this case, the question was not whether the respondent had a reasonable expectation of privacy in the apartment in general or in all circumstances; the question was whether he had a reasonable expectation of privacy when the impugned police conduct occurred – when the apartment was rented to the complainant. The answer to this question does not determine whether those who rent property for use by others must always or may never have a reasonable expectation of privacy in that property, complete or diminished. No such categorical conclusion is necessary or appropriate.

[23] As I will explain, the respondent may well have had a subjective expectation of privacy in the apartment. But it was not objectively reasonable for the respondent to expect that the complainant could not invite the police into the apartment to investigate a crime that may have been committed against him in the apartment. This is not a claim to privacy that ought to be constitutionally protected.

The respondent did not have a reasonable expectation of privacy

[24] In order to have standing to assert a breach of s. 8, the respondent had to establish, on a balance of probabilities, that he had a reasonable expectation of privacy in the subject matter of the putative search or seizure: R. v. Simpson, 2015 SCC 40, [2015] 2 S.C.R. 827, at para. 47; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 30. The search is a “putative” one because, as Brown J. notes in Mills at para. 12, there is no search and seizure within the meaning of s. 8 if the respondent cannot establish a reasonable expectation of privacy.

[25] Although the factual findings of the trial judge are entitled to deference, the application of a legal standard to the facts of the case – whether those facts amount at law to a reasonable expectation of privacy – is a question of law that is subject to review for correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[26] The subject matter of the putative search was the apartment owned by the respondent, along with the clock-camera in the bedroom. The respondent’s interest in these things is clear: he is the owner of the apartment where a criminal offence is alleged to have occurred and the owner of the device purportedly used to commit the offence alleged.

The respondent’s subjective expectation

[27] The respondent did not testify on the voir dire, so if he had a subjective expectation of privacy in the apartment and clock-camera it must be established by inference or presumption. A subjective expectation of privacy may be inferred or presumed where an accused’s home is concerned, given that the home is “where our most intimate and private activities are most likely to take place”: R. v. Stairs, 2022 SCC 11, at para. 49 citing R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 22. In Tessling the court presumed that, unless the contrary is shown, information about what happens inside the home is regarded by the occupants as private: at para. 38. See also R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 37; and Nolet, at para. 31.

[28] Plainly, an accused person is presumed to have a subjective expectation of privacy in his home. But what is it that makes something a home? Ownership is a relevant consideration, but it does not follow from ownership alone that a residential property is the accused’s home, such that a subjective expectation of privacy is properly inferred or presumed in the absence of evidence from the accused that establishes it. Even if there were evidence that a property was used as a home, it might not be appropriate to infer or presume a subjective expectation of privacy if the property was not an accused person’s home at the relevant time – that is, when the impugned police conduct occurred.

[29] In this case there was, at most, evidence that the respondent had been at the apartment a handful of times during the brief period in which he owned it. Video recorded by the clock-camera showed that he was in the apartment on four occasions. But there was no evidence that the respondent had used the apartment as his home in any meaningful sense, and there was considerable evidence to the contrary.

[30] The trial judge found that the respondent appeared to have stayed overnight on only two occasions, and there was no evidence of the respondent having had a meal in the apartment. The photographs entered into evidence showed no books, no items on the table, and an empty closet: in short, a sparsely furnished apartment with no personal effects. This is consistent with the use of the apartment as an income-generating property rather than a home and supports the inference that the respondent lived at his Longboat Avenue address.

[31] It is reasonable to presume that the respondent had a subjective expectation of privacy during the times he stayed at the apartment. But again, the relevant time for determining whether the respondent has met his burden of establishing a subjective expectation of privacy in this case was the time during which the apartment was rented to the complainant. That is when the impugned police conduct occurred. What was the respondent’s subjective expectation during this time?

[32] As the Crown notes, during this time there is no evidence that the respondent kept meaningful personal items at the apartment, or any items that tended to reveal any intimate details of his lifestyle or personal choices, and no evidence that he kept any part of the apartment private from the complainant. The apartment was under the complainant’s control during the rental period. He controlled access to the apartment without any apparent limitations. There is no evidence that the respondent was entitled to come and go from the unit during the complainant’s stay, either while the complainant occupied the apartment or when he was away from it.

[33] In summary, once we move beyond the mere fact of the respondent’s ownership of the apartment, it is not obvious that the respondent had a subjective expectation of privacy in the apartment during the period it was rented to the complainant. But even if it were to be accepted that the respondent met his burden of establishing that he had a subjective expectation of privacy during the complainant’s rental period, the respondent cannot meet his burden of establishing that his expectation was objectively reasonable.

The respondent’s expectation of privacy was not objectively reasonable

[34] Whether a subjective expectation of privacy is objectively reasonable determines whether an expectation of privacy is reasonable in particular circumstances. Although phrased in terms of the expectations of the reasonable observer, objective reasonableness is the product of a sophisticated evaluation of the normative dimensions of a particular claim. The evaluation is value-laden throughout: the accused individual’s dignity, integrity, and autonomy are relevant considerations, but so too are the long-term consequences for society, which in this case includes the ability of law enforcement to effectively protect the privacy of those who are vulnerable to surreptitious recording in intimate settings. See generally, R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.

[35] Both the trial and appeal judges emphasized the respondent’s ownership of and control over the apartment in establishing that the respondent’s expectation of privacy in the apartment and its contents was objectively reasonable. They acknowledged that the respondent spent little time at the apartment but considered it significant that he regulated access to the apartment and kept a key when it was rented out.

[36] Ownership of property is a relevant consideration but it is not determinative of the reasonable expectation of privacy for all purposes, in all circumstances: R. v. Pugliese (1992), 8 O.R. (3d) 259 (C.A.). The control that ordinarily flows from ownership of property can be limited or relinquished, for shorter or longer periods of time, for commercial or beneficent reasons. It goes without saying that anyone who temporarily gives up possession of their property, whether for a short or long-term period, will keep a key. Keys are an incident of ownership, but control over the apartment need not be inferred from possession of them. In this case, there was no evidence that the respondent was authorized to enter the apartment during the complainant’s stay, either while the complainant was present in the apartment or away from it. His unilateral action in entering the apartment without notice to the complainant and without his consent cannot support a claim that he had an objectively reasonable expectation of privacy in the apartment at the relevant time.

[37] I do not say an owner’s expectation of privacy can never be objectively reasonable once property has been rented to a third party. An objectively reasonable expectation of privacy may exist in a variety of rental contexts. It may exist, for example, where accommodation is shared or where the property rented is a home that includes personal effects. In these contexts, an accused’s dignity, integrity, and autonomy interests may be more readily apparent. It is impossible to be prescriptive given the normative nature of the concept. But in every case, the burden is on the rights claimant to establish that a reasonable expectation of privacy exists: Simpson, at para. 47; R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 10; Nolet, at para. 30. The respondent failed to meet that burden in this case.

[38] The respondent rented the apartment to the complainant – a stranger – for a period of ten consecutive days. The respondent could not live at the apartment during this time, and it is reasonable to infer that he lived at 53 Longboat Avenue. This is the address the police described as the respondent’s primary residence in their application to obtain a search warrant. It is the respondent’s registered address and the address used for materials filed in connection with this case.

[39] That the respondent may have stayed at the apartment on one or two occasions prior to the complainant’s rental is not significant, let alone determinative of whether the apartment was his home. The trial judge states, correctly, that there are no clearly defined time limits in determining whether a location is a home, noting that someone may be away on business, or may use the property as a pied-à-terre. But this misses the point: the respondent would presumably have had an objectively reasonable expectation of privacy during any time he stayed at the apartment or treated it as his home, but in this case the respondent is asserting that he had an objectively reasonable expectation of privacy during the time he rented the apartment to a stranger.

[40] What is more, by his actions the respondent created a reasonable expectation of privacy in the complainant by renting the apartment to him. The complainant was entitled to the protection of s. 8 as against the state during the rental period, but he was also entitled to the protection of the state, in so far as the Criminal Code applied. In these circumstances, the respondent did not have an overlapping or shared privacy expectation in the apartment while it was rented to the complainant. He had no privacy expectation at all.

[41] Putting the point in normative terms, there is no reason why a reasonable expectation of privacy should be recognized in the circumstances of this case. A reasonable person in the respondent’s place would expect that the complainant was entitled to call the police if he thought a crime had been committed against him at the apartment and would expect the complainant to invite the police into the apartment to investigate. It was, after all, the complainant’s home during the relevant time.

[42] At the same time, there is good reason that a reasonable expectation of privacy should not be recognized in this case: acceptance of the respondent’s claim of privacy against the state would render it all but impossible to give effect to the complainant’s rights. The competing interests and values at stake weigh against recognition of the respondent’s claim that he had a reasonable expectation of privacy at the time of the impugned police conduct. This analysis applies to the clock-camera as well as the apartment itself: the device was an impersonal appliance left for use by the complainant as part of the apartment rental.

[43] It follows that the trial judge and the appeal judge erred in concluding that the warrantless search of the apartment at the invitation of the complainant violated the respondent’s s. 8 rights. The complainant was entitled to consent to have the police enter the apartment to investigate his concern that he had been the victim of a crime committed against him in the apartment.

The clock-camera was properly seized

[44] The facts surrounding the seizure of the clock-camera are not in dispute. The investigating officer, PC Lewis, seized it on the direction of Detective McDonald “to save it from being, being destroyed by the rental unit – the rental owner. So just to preserve the evidence.” He testified, further, that he did not seek a warrant for the seizure because “the fear was that [the respondent] was going to return to the unit as he did the day before to drop off coupons”.

[45] The Crown has argued throughout that the clock-camera was seized pursuant to s. 489(2)(b) of the Criminal Code. That section provides:

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, 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

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

[46] I have already concluded that the police were entitled to enter the apartment at the complainant’s invitation. PC Lewis was therefore lawfully present within the meaning of s. 489(2). Whether PC Lewis had reasonable grounds to believe that the clock-camera had been used in the commission of an offence is a question of law that is subject to review for correctness.

[47] The objective reasonableness of a police officer’s subjective belief must be determined having regard to the objective and ascertainable facts as seen through the eyes of a reasonable person with the same knowledge, training, and experience of the police officer: R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-24; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 25. This requires the exercise of common sense. The police were under no duty to undertake further investigation to seek out exculpatory factors or to rule out possible innocent explanations: Chehil, at para. 34.

[48] With respect, the trial judge and the appeal judge erred in concluding that PC Lewis had no more than a suspicion of criminality. I agree with the Crown’s submission: there was a “compelling constellation of information” known to the police when PC Lewis seized the clock-camera. The device that appeared to be a alarm clock was unplugged, but blue LED lights turned on while PC Lewis was in the bedroom; a hidden camera lens was visible behind a removable screen; the device had a slot for a memory card; an identical device was advertised online as containing a WIFI-enabled night vision camcorder with infra-red lights; and the complainant reported that the respondent had entered the apartment and removed the bag he had put in front of the device.

[49] The respondent says that the presence of the device does not imply criminality, so PC Lewis’s understanding of the functioning of the device was key to the reasonable grounds analysis. I do not agree.

[50] It is of no moment that PC Lewis and Detective McDonald did not know exactly how the device worked or whether it was capable of transmitting information. Neither of these technological questions precluded him from having reasonable grounds to believe the offence of voyeurism had been committed. PC Lewis and Detective McDonald knew that the device had a hidden camera; that it was aimed at the complainant’s bed; and that the complainant’s bag had been removed so as not to block the camera. What more could be required before he was entitled to believe the offence of voyeurism had been committed? The offence of voyeurism may be committed through cameras activated remotely, and it is difficult to catch someone in the act of doing so. Security cameras are ubiquitous, but cameras hidden in alarm clocks, pointed at the beds of strangers, are not.

[51] Nor is it determinative in this case that PC Lewis did not recite the language of reasonable grounds in his evidence or in his notes. There was a large body of evidence from which it could reasonably be inferred that he had the requisite grounds: R. v. Nesbeth, 2008 ONCA 579, 238 C.C.C. (3d) 567, at paras. 19-20, leave to appeal refused, [2009] S.C.C.A. No. 10. The respondent acknowledges that the words “reasonable and probable grounds” need not be articulated by the police but argues that it should not be inferred that PC Lewis and Detective McDonald had the requisite grounds in this case. PC Lewis’s evidence was “confused and vague”, and there was no evidence from Detective McDonald.

[52] I do not accept these arguments. It may well have been better for Detective McDonald to have testified, but the absence of his testimony is not fatal to the decision to seize the device. As with PC Lewis, it can reasonably be inferred that Detective McDonald had the requisite grounds following his briefing by PC Lewis. There is ample evidence in support of this inference.

Examination and search of the clock-camera

[53] Given the lawfulness of the seizure of the device, I accept the Crown’s submission that the police were entitled to inspect its physical qualities, though not the informational contents of the memory card within it: R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 45-46. Once the police confirmed that there was an SD memory card in the device, they obtained a warrant before accessing the data on the memory card.

[54] The respondent makes a brief argument in his factum that the warrant was overbroad. This argument was not pressed on appeal, and I see no merit in it.

Conclusion

[55] In summary, the respondent had no reasonable expectation of privacy in the apartment while it was rented to the complainant. The police did not violate the respondent’s rights in entering the apartment and investigating the complaint. The clock-camera was properly seized pursuant to s. 489(2)(b) of the Criminal Code, and the police were entitled to examine its physical qualities. The memory card was properly searched pursuant to a warrant.

[56] I would allow the appeal, set aside the acquittal, admit the excluded evidence, and order a new trial.

Released: July 26, 2022 “M.T.” “Grant Huscroft J.A.” “I agree. M. Tulloch J.A.” “I agree. B.W. Miller J.A.”

Appendix A: Agreed Statement of Facts

1. Michael Chow is the owner of Unit 606 at 105 Victoria Street in Toronto, Ontario (the "Apartment").
2. Mr. Chow purchased the Apartment on July 13, 2018.
3. In September 2018, Robert Wallenberg was visiting Toronto for the Toronto International Film Festival. Mr. Chow rented the Apartment as an Airbnb unit to Mr. Wallenberg from September 6-16, 2018. Mr. Wallenberg stayed there with his friend, Kevin Alexander.
4. Airbnb is an online marketplace which lets people rent out their properties or spare rooms to guests on a temporary or short term basis.
5. Mr. Wallenberg checked in on September 6, 2018. The following night, September 7, 2018, he moved his camera bag in front of the digital alarm clock next to his bed because the blue LED lights were bothering him. The alarm clock was on a bedside table, facing the bed.
6. In the early morning hours of September 9, 2018, Mr. Wallenberg returned to the Apartment and entered the bedroom. He believed his camera bag had been moved. He also received a message from Mr. Chow indicating that he had left some coupons for them on the counter.
7. Mr. Wallenberg inspected the digital alarm clock more closely and discovered what he believed was a camera concealed beneath the tinted front-piece of the clock (the "clock camera").
8. Mr. Wallenberg conducted an open source Internet search of the clock camera and became more suspicious.
9. Mr. Wallenberg notified Airbnb, which directed him to check into a hotel and call the police. He did so, and relocated to the Delta Chelsea Hotel.
10. Cst. Lewis responded to the call and is testifying on the motion.
11. D/Cst. Wallace was the Officer in Charge of the subsequent investigation.
12. On September 10, 2018, D/Cst. Wallace retrieved the clock camera from the Toronto Police Property Locker and visually inspected it.
13. He removed the back plate of the clock camera and observed the clock camera to contain a SD memory card. He then returned the clock camera to the Toronto Police Property Locker.
14. D/Cst. Wallace did not obtain a warrant to perform this inspection of the clock camera.
15. D/Cst. Wallace then sought and obtained search warrants for two locations: (1) the camera clock, including the contents of its memory card, inside the Toronto Police Property Locker; and (2) 53 Longboat Avenue.
16. Police executed the search warrant on 53 Longboat Avenue on September 25, 2018 and seized nothing.
17. D/Cst. Wallace executed the search warrant on the clock camera on September 21, 2018. He viewed the entirety of the video files on the memory card. The video footage on the memory card can be summarized as follows:
18. The video footage on the SD memory card is divided into hundreds of individual files, each file being between 2 to 5 minutes in length.

30 July 2018

19. The video footage from this date begins at 10:41:34pm and ends at 10:46:35pm.
20. The camera is positioned on a glass table in a kitchen.
21. Mr. Chow is visible on camera, tidying and cleaning the kitchen. Mr. Chow is wearing boxer brief underwear and is accompanied by his dog.
22. Mr. Chow fills a dog bowl with water before returning with a mug, filling it with water from the fridge, drinking the water, and leaving the mug on the kitchen counter.

31 July 2018

23. The video footage from this date begins at 12:42:01am and ends at 2:28:01pm.
24. From 12:42:01am to 6:23:13am, the visuals are dark and there is no sound.
25. At approximately 6:23:13am, the sun starts to come up, and the room is illuminated. The clock camera is in the same position as in the July 30, 2018 video.
26. Between 6:54am and 6:58am, Mr. Chow is observed on camera walking in and out of the kitchen area, getting water from the fridge and putting dishes away.
27. Mr. Chow appears on camera in the kitchen again at 7:04am At 7:05am, he is heard off-camera instructing his dog to come inside. At 7:07am, he adjusts the position of the clock camera and gets water from the fridge.
28. Mr. Chow appears on camera again at 7:09am. He gets something from the fridge.
29. From that point until 2:27pm, the camera remains on the glass table in the kitchen, and no one appears on camera. Music can be heard playing in the background.
30. At 2:27pm, three unknown males appear on camera in the kitchen. One of the unknown males leaves something on the glass table in the kitchen. The video ends at 2:28:01pm.

3-4 August 2018

31. The next stretch of video begins at 7:09:48pm on August 3, 2018.
32. At 7:09pm on August 3, 2018, the camera is positioned on a table in 606-105 Victoria Street, facing a couch.
33. Mr. Chow is sitting on the couch with his dog, using his phone. He is wearing just underwear. The camera is facing him.
34. At 7:12pm, Mr. Chow picks up the clock camera, looks at it, and places it back onto the table.
35. He continues to lounge on the couch in his underwear, using his phone.
36. At 7:17pm, Mr. Chow gets up from the couch.
37. At 8:17pm, Mr. Chow returns to the couch, picks up the camera, and moves it to the bedroom. He places it on a table facing the bed, and approximately half of the bed is captured on camera. His dog accompanies him to the bedroom.
38. From 8:19pm to 9:01pm, there is no activity. The clock camera remains in the bedroom.
39. At 9:02pm, Mr. Chow can be heard having a conversation.
40. At 9:08pm, Mr. Chow turns the bedroom lights on.
41. At 9:09pm, he adjusts the clock camera. It now captures the entire side profile of the bed closest to the table.
42. At 9:17pm, the camera is obstructed by a blue object.
43. At 12:17am on August 4, the blue object is removed, the bedroom light is on, and the room is empty.
44. At 12:20am, Mr. Chow appears on camera in his underwear. He gets into bed, and is watching something on a tablet computer.
45. At 12:43am, Mr. Chow turns the lights off.
46. From that time until around 6 a.m., the room is dark and quiet.
47. At 6:04am, the sun starts to come up, and Mr. Chow is visible in bed, sleeping next to his dog.
48. At 6:59am, Mr. Chow gets out of bed and exits the bedroom.
49. At 7:02am, he chastises his dog for urinating on the bedroom floor.
50. From 7:02am-7:06am, Mr. Chow is cleaning a portion of the bedroom floor.
51. At 7:08am, he gets back in bed, using his phone and tablet.
52. At 7:28am, Mr. Chow gets out of bed again and leaves the bedroom.
53. At 7:30am, he returns and continues cleaning the floor.
54. At 7:31am, he exits the bedroom.
55. From 7:31am to 11:37am, the bedroom is empty.
56. Mr. Chow returns to the bedroom at 11:37am with a bottle of Skout's Honor cleaning product and continues cleaning the floor using this product.
57. From 11:44am to 12:00pm, Mr. Chow strips the bedsheets, and makes the bed with new sheets.
58. At 1:15pm, Mr. Chow returns to the bedroom, picks up the camera, and places it back down on the table.
59. There is no video footage from 1:16:43pm to 1:18:10pm. The video file that should contain that footage - "0116 43 PM 08-04-2018" - cannot be rendered.
60. The video files referenced in paragraphs 61 to 88 are incorrectly timestamped. They appear on the video timestamped with a date of August 5, extending from "1:18:10am" to "9:56:12am." In reality, they occur in the afternoon and early evening of August 4.
61. The video footage from "1:18:10am" to "8:43:00am" occurs in daylight. Beginning at "8:43:00am", the bedroom is dark.
62. The video footage at "1:18:10am" is preceded by approximately seven seconds of obstructed footage that is incorrectly timestamped as January 1, 1970.
63. At "1:18:10am", the camera is in the bedroom but is pointed at the window instead of the bed. The image is upside down. Mr. Chow is standing at the window.
64. Mr. Chow walks over, picks up the clock, and holds it.
65. The camera footage jumps from "1:19:06am" to "1:19:10am".
66. The camera is now back on the table facing the bed. The entire side profile of the bed is captured on camera.
67. Mr. Chow leaves the bedroom with his dog at "1:22am".
68. At "1:31am", a conversation can be heard in the other room.
69. At "1:33am", Mr. Chow enters the bedroom Unknown Male #1 (UM1) and Unknown Male #2 (UM2). UM1 is carrying Mr. Chow's dog in his arms.
70. They exit the bedroom after about 35 seconds and the conversation continues in the other room.
71. At "1:37am", UM2, Unknown Male #3 (UM3) and Unknown Female #1 (UF1) enter the bedroom and have a discussion. They exit at "1:38am". Conversation outside the bedroom continues until "1:45am".
72. From "1:45am" to "3:44am", the bedroom is empty and there is no sound.
73. From "3:45am" to "3:47am", UM2 is in and out of the bedroom, having a conversation.
74. At "3:48am", UM3 enters the bedroom, lies on the bed, and uses his phone. He exits the bedroom at "3:49am".
75. From "3:49am" to "4:33am", conversation can be heard from the other room.
76. At "4:33am", UM1 enters the bedroom. He closes the blinds, lies on the bed atop the bedsheets, pulls out his phone and begins to masturbate. His erect penis is visible on camera.
77. UM1 stops masturbating at "4:46am" and gets up from the bed.
78. At "4:47am", UM1 appears on screen again, and is wearing a towel. He sits on the side of the bed looking at his mobile phone. At "4:49am", he leaves the bedroom.
79. UM1 returns to the bedroom briefly at "4:53am" and steps onto the bed before exiting again. UM2 is present in the room. UM1 is completely nude and is covering his penis with his left hand while holding his phone in his right hand. A conversation can be heard outside.
80. Beginning at "4:58am", the bedroom is empty and no sound can be heard.
81. At "5:29am", the image on the camera reverses, now showing a mirror image.
82. At "5:54am", UM1 returns to the bedroom, places a suitcase on the bed, and exits.
83. From "6:01am" to "6:57am", UM1 is in and out of the bedroom, removing clothes from the suitcase. He is shirtless.
84. At "6:57am", he takes off his shorts, exposing his underwear, and exits the bedroom.
85. At "7:11am", UM1 returns to the bedroom and is naked. His penis is visible on camera. He puts underwear on, puts jeans on, and leaves the bedroom holding a shirt.
86. At "7:38am", the conversation in the other room stops.
87. The bedroom starts getting dark at "8:43am". By "8:59am", the visuals are dark and there is no sound.
88. The last recording on the SD memory card ends at "9:56:12am".