Court File and Parties
Date: 2020-01-29
Court File No.: Toronto, College Park 18-75004818
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Michael Chow
Before: Justice J. W. Bovard
Heard on: December 20, 2019
Reasons for Judgment released on: January 29, 2020
Counsel
Mr. E. Akriotis — counsel for the Crown
Ms. D. Robitaille / Mr. P. Grbac — counsel for the defendant Michael Chow
Reasons for Judgment
Bovard J.:
Introduction to the Charges
[1] Michael Chow is charged with voyeurism under s. 162 (1) (a) of the Criminal Code. The Crown proceeded by way of summary conviction.
[2] The defence argues that the police breached Mr. Chow's rights under s. 8 of the Charter and asks for an order under s. 24 (2) of the Charter that excludes all the incriminating evidence against him.
[3] The defence has the onus to show on a balance of probabilities that the police breached Mr. Chow's Charter rights, and if they did, that the evidence should be excluded.
[4] The Crown has the burden to prove beyond a reasonable doubt that Mr. Chow is guilty of the offence.
Introduction
[5] In September 2018, the complainant, Mr. Robert Wallenberg, rented an Airbnb apartment in Toronto from Mr. Chow for 10 days. While in the unit, he realized that the clock radio in the bedroom, which was pointed at the bed, had a camera in it that was capable of recording and saving data.
[6] Mr. Wallenberg notified AirBnB, who told him to go to a hotel and call the police. He did so and Cst. Lewis went to the hotel to speak with him. After they spoke, they went to the AirBnB apartment.
[7] Mr. Wallenberg let in the officer and showed him the clock-camera. While he was there, Cst. Lewis called a detective who told him to seize the clock-camera and take it to the police station and put it in a property locker.
[8] The next day, Detective Cst. Wallace, without a warrant, took it out from the property locker and inspected it. He saw that it had an SD memory card. Then he returned it to the property locker and went to obtain a warrant to search the clock-camera, including the SD memory card.
[9] The data on the chip showed Mr. Chow, his dog, and other persons in the apartment engaged in various activities, including in the bedroom.
[10] The police then charged Mr. Chow with voyeurism.
The Issues
[11] The issue regarding s. 8 involves four incidents. First, the entry by Cst. Lewis into Mr. Chow's apartment, second the seizure of the clock-camera from the apartment by Cst. Lewis, third the inspection of the clock-camera by Detective Cst. Wallace. All of these occurred without a warrant. The fourth incident is the issuing of the search warrant to search the clock-camera.
[12] The first question that I must resolve is whether Mr. Chow maintained a reasonable expectation of privacy in the Airbnb unit while Mr. Wallenberg was renting it. Related to this, I must determine if Mr. Wallenberg had the authority to allow Cst. Lewis to enter and seize the clock-camera.
[13] If I find that the police breached Mr. Chow's rights under s.8 of the Charter, then the issue is whether I should exclude or admit the evidence pursuant to s.24 of the Charter.
Disposition
[14] For the reasons stated below I allow the defence application regarding:
- the entry by Cst. Lewis into Mr. Chow's apartment,
- the seizure of the clock-camera from the apartment by Cst. Lewis,
- the inspection of the clock-camera by Detective Cst. Wallace.
[15] I dismiss the defence application regarding the search warrant. I find that the search warrant was valid.
[16] I allow the defence application regarding s. 24 (2) and I exclude the evidence.
The Evidence
[17] The evidence comes from Cst. Lewis's testimony and an agreed statement of facts (ASF), which is exhibit 1.
The Agreed Statement of Facts
[18] The ASF states:
R. v. CHOW — Agreed Statement of Facts
Michael Chow is the owner of Unit 606 at 105 Victoria Street in Toronto, Ontario (the "Apartment").
Mr. Chow purchased the Apartment on July 13, 2018.
In September 2018, Robert Wallenberg was visiting Toronto for the Toronto International Film Festival (TIFF). 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.
Airbnb is an online marketplace which lets people rent out their properties or spare rooms to guests on a temporary or short term basis.
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.
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.
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").
Mr. Wallenberg conducted an open source Internet search of the clock camera and became more suspicious.
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.
Cst. Lewis responded to the call and is testifying on the motion.
D/Cst. Wallace was the Officer in Charge of the subsequent investigation.
On September 10, 2018, D/Cst. Wallace retrieved the clock camera from the Toronto Police Property Locker and visually inspected it.
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.
D/Cst. Wallace did not obtain a warrant to perform this inspection of the clock camera.
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.
Police executed the search warrant on 53 Longboat Avenue on September 25, 2018 and seized nothing.
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:
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
The video footage from this date begins at 10:41:34pm and ends at 10:46:35pm.
The camera is positioned on a glass table in a kitchen.
Mr. Chow is visible on camera, tidying and cleaning the kitchen. Mr. Chow is wearing boxer brief underwear and is accompanied by his dog.
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
The video footage from this date begins at 12:42:01am and ends at 2:28:01pm.
From 12:42:01am to 6:23:13am, the visuals are dark and there is no sound.
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.
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.
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.
Mr. Chow appears on camera again at 7:09am. He gets something from the fridge.
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.
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
The next stretch of video begins at 7:09:48pm on August 3, 2018.
At 7:09pm on August 3, 2018, the camera is positioned on a table in 606-105 Victoria Street, facing a couch.
Mr. Chow is sitting on the couch with his dog, using his phone. He is wearing just underwear. The camera is facing him.
At 7:12pm, Mr. Chow picks up the clock camera, looks at it, and places it back onto the table.
He continues to lounge on the couch in his underwear, using his phone.
At 7:17pm, Mr. Chow gets up from the couch.
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.
From 8:19pm to 9:01pm, there is no activity. The clock camera remains in the bedroom.
At 9:02pm, Mr. Chow can be heard having a conversation.
At 9:08pm, Mr. Chow turns the bedroom lights on.
At 9:09pm, he adjusts the clock camera. It now captures the entire side profile of the bed closest to the table.
At 9:17pm, the camera is obstructed by a blue object.
At 12:17am on August 4, the blue object is removed, the bedroom light is on, and the room is empty.
At 12:20am, Mr. Chow appears on camera in his underwear. He gets into bed, and is watching something on a tablet computer.
At 12:43am, Mr. Chow turns the lights off.
From that time until around 6am, the room is dark and quiet.
At 6:04am, the sun starts to come up, and Mr. Chow is visible in bed, sleeping next to his dog.
At 6:59am, Mr. Chow gets out of bed and exits the bedroom.
At 7:02am, he chastises his dog for urinating on the bedroom floor.
From 7:02am-7:06am, Mr. Chow is cleaning a portion of the bedroom floor.
At 7:08am, he gets back in bed, using his phone and tablet.
At 7:28am, Mr. Chow gets out of bed again and leaves the bedroom.
At 7:30am, he returns and continues cleaning the floor.
At 7:31am, he exits the bedroom.
From 7:31am to 11:37am, the bedroom is empty.
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.
From 11:44am to 12:00pm, Mr. Chow strips the bedsheets, and makes the bed with new sheets.
At 1:15pm, Mr. Chow returns to the bedroom, picks up the camera, and places it back down on the table.
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.
The video files referenced in paragraphs 61 to 88 are incorrectly time stamped. 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.
The video footage from "1:18:10am" to "8:43:00am" occurs in daylight. Beginning at "8:43:00am", the bedroom is dark.
The video footage at "1:18:10am" is preceded by approximately seven seconds of obstructed footage that is incorrectly timestamped as January 1, 1970.
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.
Mr. Chow walks over, picks up the clock, and holds it.
The camera footage jumps from "1:19:06am" to "1:19:10am".
The camera is now back on the table facing the bed. The entire side profile of the bed is captured on camera.
Mr. Chow leaves the bedroom with his dog at "1:22am".
At "1:31am", a conversation can be heard in the other room.
At "1:33am", Mr. Chow enters the bedroom with Unknown Male #1 (UM1) and Unknown Male #2 (UM2). UM1 is carrying Mr. Chow's dog in his arms.
They exit the bedroom after about 35 seconds and the conversation continues in the other room.
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".
From "1:45am" to "3:44am", the bedroom is empty and there is no sound.
From "3:45am" to "3:47am", UM2 is in and out of the bedroom, having a conversation.
At "3:48am", UM3 enters the bedroom, lies on the bed, and uses his phone. He exits the bedroom at "3:49am".
From "3:49am" to "4:33am", conversation can be heard from the other room.
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.
UM1 stops masturbating at "4:46am" and gets up from the bed.
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.
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.
Beginning at "4:58am", the bedroom is empty and no sound can be heard.
At "5:29am", the image on the camera reverses, now showing a mirror image.
At "5:54am", UM1 returns to the bedroom, places a suitcase on the bed, and exits.
From "6:01am" to "6:57am", UM1 is in and out of the bedroom, removing clothes from the suitcase. He is shirtless.
At "6:57am", he takes off his shorts, exposing his underwear, and exits the bedroom.
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.
At "7:38am", the conversation in the other room stops.
The bedroom starts getting dark at "8:43am". By "8:59am", the visuals are dark and there is no sound.
The last recording on the SD memory card ends at "9:56:12am".
Cst. Lewis's Testimony
[19] Cst. Lewis testified that he went to the hotel to see Mr. Wallenberg, who told him that he had found a clock-camera pointing at the bed in the bedroom of the AirBnB apartment. Cst. Lewis understood that he was renting the unit for ten days for the purpose of attending the Toronto International Film Festival. There were seven days left in the rental period.
[20] Cst. Lewis believed that Mr. Wallenberg "still had ownership of the, I guess, the AirBnB and had the key". Therefore, he believed that Mr. Wallenberg had the authority to let him enter the unit because he was still renting the unit and had the key. He said that "He hadn't quite vacated it yet. He, he did move to a – the Delta, but he still had ownership of the key and he was – he was supposed to return the key after, after – when we, I guess, entered the unit".
[21] Because of this belief he did not try to contact Mr. Chow, the owner of the unit to "canvas" his consent to his entry into the unit. Nor did he give Mr. Chow notice that he was going to enter the unit. Nor did he make any inquires at the condominium building. He did not believe that there was concierge or security personnel in the lobby. He did not try to determine who managed the building, either.
[22] Cst. Lewis did not investigate who, if anyone, normally lived in the unit. He did not think to call Mr. Chow to ask him if he had temporarily vacated the unit for TIFF. Nor did he ask Mr. Chow anything about the use of the clock-camera.
[23] He did not consider Mr. Chow's right to privacy because he "believed it belonged to Mr. Wallenberg … for ten days …" Nor did he consider what private information Mr. Chow might have had on the clock-camera.
[24] Cst. Lewis stated that after speaking to Mr. Wallenberg at the hotel:
I drove him back to the Airbnb to show me what it was that he found, which he then showed me the, the alarm clock which was on a, a small table on the – that was closer to the door on, on the – beside the bed that faced the bed and there was a – it just looked like a black – a small black alarm clock at this point, and then he then took the lens off, or the, not the lens, the – I guess there's a cover, a small cover, off the front.
THE COURT: Sorry, you took it off or he took it off?
A. He, he was showing me how to....
THE COURT: You took it off?
A. Yeah.
[25] Cst. Lewis said that the clock-camera was unplugged, sitting on a small table. Mr. Wallenberg told him that he found on the internet that this type of clock had a hidden camera inside.
[26] Cst. Lewis understood that it was not illegal to own a home camera system. Therefore, he knew that it was not illegal to own the clock-camera.
[27] Mr. Wallenberg showed Cst. Lewis the AirBnB advertisement that Mr. Chow posted. It shows the bedroom and what appears to be the same clock-camera on the table. It is exhibit 7.
[28] The internet advertisement for the clock-camera that Mr. Wallenberg showed Cst. Lewis is exhibit 8. Among other things, it showed that the clock-camera had Wi-Fi accessibility.
[29] At one point, the clock-camera turned on although it was unplugged. The blue LED lights illuminated for a few minutes.
[30] Based on all the information that he gathered, Cst. Lewis concluded that the clock-camera was put on the table as "a recording machine for possibly someone renting out the, the AirBnB". He wanted to "look into further to see if there was possible – any criminality into it". He was concerned about voyeurism. But he conceded that he did not understand how the clock-camera worked, or when it was recording.
[31] When Cst. Lewis seized the clock-camera, he did not know if the camera function worked, or if it was recording that day or at any other time. He does not have technical expertise in this area. He could not figure out how the camera function in the clock worked. For example, he did not know if it could be operated remotely. He did not call the tech crimes unit for assistance. They would not have come to the apartment on such short notice.
[32] Nor did Cst. Lewis know how many persons might have had access to the on or off function of the clock-camera.
[33] At this point, he called Detective McDonald and advised him of the situation. Detective McDonald told him to seize the clock-camera and take an audio statement from Mr. Wallenberg.
[34] Since there were several days left on Mr. Wallenberg's rental agreement for the unit, Detective McDonald could have applied for a warrant to seize the clock-camera, but he did not take any steps to get a warrant. Cst. Lewis said that they were concerned that Mr. Chow would return to the unit as he had the day before to drop off coupons. Cst. Lewis agreed that the police spent "quite some time" in the unit investigating this event. Mr. Chow did not return to the unit while they were there.
[35] Cst. Lewis followed Detective McDonald's instructions. At 8:04 a.m., he seized the clock-camera. Then he took an audio statement from Mr. Wallenberg. He also called Officer Cooper to come and take SOCO photographs of the apartment.
[36] Then, Cst. Lewis seized the clock-camera and took it to the police station. He put it in a property locker in a sealed bag.
[37] The Crown asked him what gave him the authority to seize the clock-camera. Cst. Lewis responded that he "took direction from Detective McDonald". He added that he believed that he seized it "to save it from being, being destroyed by the rental unit – the rental owner. So just preserve the evidence". However, he did not make any notation of having reasonable and probable grounds. He did not testify that he had reasonable and probable grounds that a crime had been committed by means of the clock-camera. This is because he was just following Detective McDonald's orders to seize the clock-camera.
[38] Cst. Lewis looked at a booklet of several pictures of the apartment, including the bedroom and the clock-camera (exhibit 3). He identified and described what they depicted.
[39] In addition to these pictures, the SOCO officer took a picture of a note that Mr. Chow left in the apartment and which was there when Cst. Lewis was in the apartment. It says "Welcome. Feel free to message me with questions. 416-[XXX-XXX]. BTW if anyone asks you are my guests visiting for TIFF not AirBnB. Thanks".
[40] Cst. Lewis agreed with defence counsel that this note indicates that it did not seem that this AirBnB unit was not being professionally managed. In addition, he agreed that "there appears to be potentially some concern with Wallenberg and his friend identifying themselves as AirBnB guests …"
[41] Cst. Lewis said that he did not take the note to mean that the owner of the unit was a regular resident in the unit. It just appeared to him that the owner was not allowed to rent the unit as an AirBnB unit. He knew that Mr. Chow had a key to the unit because Mr. Wallenberg told him that Mr. Chow had entered the unit and left coupons when he was not there.
[42] The officer identified the clock-camera and some of its components. They are exhibits.
Analysis
Was There a Search?
[43] In R. v. Spencer, the Supreme Court of Canada addressed in the following manner the issue of whether the police conducted a search:
The first issue is whether this protection against unreasonable searches and seizures was engaged here. That depends on whether what the police did to obtain the subscriber information matching the IP address was a search or seizure within the meaning of s. 8 of the Charter. The answer to this question turns on whether, in the totality of the circumstances, Mr. Spencer had a reasonable expectation of privacy in the information provided to the police by Shaw. If he did, then obtaining that information was a search.
[44] In the case at bar, the issue regarding s. 8 involves four incidents:
- The entry by Cst. Lewis into Mr. Chow's apartment without a warrant,
- The seizure of the clock-camera from the apartment by Cst. Lewis without a warrant.
- The inspection of the clock-camera by Detective Cst. Wallace without a warrant.
- The issuing of the search warrant to search the clock-camera.
[45] First, pursuant to R. v. Spencer, I must decide whether "in the totality of the circumstances" Mr. Chow had a reasonable expectation of privacy in the AirBnB unit and in the clock-camera.
[46] Answering this question involves "considering and weighing a large number of interrelated factors".
[47] In paragraph 18, Spencer states that these factors can be grouped "under four main headings for analytical convenience":
(1) the subject matter of the alleged search;
(2) the claimant's interest in the subject matter;
(3) the claimant's subjective expectation of privacy in the subject matter;
(4) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of the circumstances
[48] Spencer also indicates that:
this is not a purely factual inquiry. The reasonable expectation of privacy standard is normative rather than simply descriptive: Tessling, at para. 42. Thus, while the analysis is sensitive to the factual context, it is inevitably "laden with value judgments which are made from the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy"
[49] I will now consider the four factors mentioned in Spencer.
The Subject Matter of the Alleged Search
[50] I agree with the defence submission that initially the subject matter of the search was the AirBnB apartment, not just the clock-camera. Although, Cst. Lewis did not search the entire apartment, he entered it and searched part of it; namely, the bedroom, where he seized the clock-camera.
[51] Later, Detective Cst. Wallace searched the clock-camera when he took it out of the property locker at the police station.
[52] Therefore, the subject matter of the search was the apartment and the clock-camera and its contents as recorded on the SD memory card.
The Claimant's Interest in the Subject Matter
[53] Spencer held in paragraph 36 that:
The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought.
[54] Mr. Chow is the sole owner of the AirBnB apartment and had control over it and its contents. He advertised the apartment for rent on the AirBnB rental platform and rented it out to persons. As such, he has a strong interest in the apartment and in its contents.
The Claimant's Subjective Expectation of Privacy in the Subject Matter
[55] R. v. Tessling held that:
it may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private. Such an expectation is rooted in the ancient law of trespass and finds its modern justification in the intimacies of personal and family life.
[56] Regarding the AirBnB apartment, the ASF states that Mr. Chow bought the apartment and "is the owner" of the apartment. The SD memory card files show that Mr. Chow attended at the apartment with his dog on one occasion. On another occasion he was there briefly with other persons. The SD memory card recording also shows that he spent one or two nights there.
[57] The defence states in paragraph 18 of her Charter application that Mr. Chow "occupied the Apartment, splitting his time with another property he owned …" The defence characterizes Mr. Chow as a "frequent occupant" of the apartment.
[58] The evidence shows that he occupied it as I indicated above, but no more. I find that "splitting his time with another property" implies that he spent 50% of his time in the AirBnB apartment. There is no evidence of this.
[59] The evidence on which I can evaluate the submission that Mr. Chow was a "frequent" occupant is scant. He bought the apartment on July 13, 2018. The SD memory files recorded him in the apartment on four occasions between July 30, 2018 and August 4, 2018. Some of these attendances were longer than others, including up to two overnight stays. There is no other evidence on which to judge the "frequency" of his attendances at the apartment.
[60] However, he did own the apartment and used it on the four occasions shown on the video files. The evidence allows for a reasonable inference that his use of the apartment is as it was depicted in the video files. This would show a use that tends towards occasional use which is less than using it as a regular home. For example, there is no evidence of him having a meal in the apartment. He may have had meals there, but there is no evidence of this.
[61] The Crown argued that Mr. Chow was not an occupant of the apartment, Mr. Wallenberg was. I think that goes too far. The evidence shows that Mr. Chow occupied the apartment on the occasions shown in the videos. His possessions filled the apartment. This characteristic of "occupancy" was not erased when he rented the apartment to Mr. Wallenberg.
[62] I find that in these circumstances Mr. Chow had a subjective expectation of privacy in the apartment. However, to a lesser degree than if it were his full-time home.
[63] Regarding the clock-camera, I find that Mr. Chow had a reasonable expectation of privacy in the clock-camera and in the contents of the SD memory card. The evidence shows that he spent the night in the apartment on one or two occasions and that the clock-camera recorded his activities during this time. The recordings show him engaged in various activities in his underwear. It is reasonable to expect that he expected that what the camera recorded on these occasions would be private.
Whether This Subjective Expectation of Privacy Was Objectively Reasonable, Having Regard to the Totality of the Circumstances
[64] The defence states in paragraph 16 of her application that regarding this question "a variety of other factors come into play including ownership, control and the historical use of the space". She cites Tessling (paras. 31-32), Spencer (paras. 17-18) and R. v. Edwards as authority for this.
[65] In Edwards, the court held:
A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54, and Wong, supra, at p. 62.
The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:
(i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.
[66] Based on these criteria, I find that Mr. Chow's expectations of privacy in the AirBnB apartment and in the clock-camera were reasonable. He owned the apartment, exercised what appears to be sole control over it, used it on several occasions within the three weeks since he bought it, and was able to regulate access to the apartment, including the right to grant access to it. He kept a key to the apartment even though it was rented out.
[67] As stated above, in these circumstances it is presumed that he had an expectation of privacy in the apartment because to a significant, albeit limited extent it functioned as a home for him. I do not think that there are clearly defined time limits to determine whether a location is a home. For example, one may have a home, but be away from it most of the time while travelling for business.
[68] Another example is that one may have a pied-à-terre where one stays occasionally.
[69] I think that whether a location is a "home" depends more on whether one uses it as one would use a home. Examples of factors that can inform this criterion are the contents of the place, and that one stays there at times.
[70] Based on all the evidence, I find that Mr. Chow's expectation of privacy in the apartment was objectively reasonable.
[71] I find similarly regarding the clock-camera. It is reasonable to infer from the circumstances that he owned and exercised control over the contents of the apartment, which includes the clock-camera and its contents. Therefore, his expectation of privacy in the contents of the apartment is objectively reasonable.
[72] The Crown argued that the clock-camera "is not a 'personal computer' and does not engage the same heightened privacy interests". The clock-camera may not have engaged the same privacy interests as a personal computer, but it still engaged privacy interests because it was recording activities in the residence.
What Is the Effect on Mr. Chow's Expectation of Privacy That He Rented the Apartment as an AirBnB Accommodation?
[73] The Crown raised the issue of whether renting the apartment on the AirBnB platform extinguished Mr. Chow's reasonable expectation of privacy in the apartment.
[74] In the circumstances of this case, I consider this issue as part of what I must weigh in determining the objective reasonableness of Mr. Chow's subjective expectation of privacy in the AirBnB apartment.
[75] After canvasing the evidence in this regard, I find that the legal nature of their relationship is not clear.
[76] I find that it is logical that the fact of renting out the apartment reduced his expectation of privacy in it. The rental contract is not in evidence, but I grant that an argument can be made that it is reasonable to infer that explicitly or implicitly, their agreement provided to Mr. Wallenberg exclusive use of the apartment during the rental period, with an exception for emergency situations.
[77] However, a counter argument can be made that the fact that Mr. Chow entered the apartment during the rental period to leave coupons and to reposition the clock-camera and did not hide the fact, indicates that their agreement provided for less than exclusive possession of the apartment.
[78] The defence points out that R. v. Cole held that "[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s.8 of the Charter".
[79] The Crown submits that Mr. Chow and Mr. Wallenberg were in a "short-term tenancy agreement, brokered by AirBnB". He argues that their agreement was a lease. He cites British American Oil Co. V. Depass as authority for the conditions precedent to establish a "leasehold estate".
[80] In British American Oil Co., the court had to decide whether the parties entered into a lease or a licence. They said that:
Wherever the relationship of landlord and tenant exists there is present the element of permission or consent on the part of the landlord, and subordination to the landlord's title and rights on the part of the tenant. There must be a reversion in the landlord, the creation of an estate in the tenant, and a transfer of possession and control of the premises to the tenant. The reservation of rent to the landlord is usual but not in all cases essential, and whether the rent reserved is payable in money or through some other medium has no particular significance. It will be observed, therefore, that the transmission of an estate to the tenant is an essential characteristic of the relationship of landlord and tenant. No estate in the land passes to a licensee and this, on the authorities, is the principle distinguishing trait between the two relationships. An agreement which confers exclusive possession of the premises as against all the world, including the owner, is a lease, while if it merely confers a privilege to occupy under the owner, it is a licence. It is often difficult to determine whether a particular agreement is to be regarded as a lease or a licence. Broadly speaking, however, the general concept of a licence is that it is a mere permission to occupy the land of another for some particular purpose.
[81] The court adopted the definition of licence stated in Thomas v. Sorrell (1673), Vaugh. 351, Vaughan, C.J.:
A dispensation or licence properly passeth no interest nor alters or transfers property in any thing, but only makes an action lawful which without it had been unlawful.
[82] The Crown relies on paragraphs 37-39 from TSCC No. 1556 and No. 1600 v. Owners of TSCC No. 1556, et al. to support his argument that Mr. Chow and Mr. Wallenberg entered into a leasing agreement. However, this case was not about the distinction between a lease and a licence. It dealt with whether condominium declarations that contained provisions that permitted short-term rentals of units were inconsistent with the Condominium Act, 1998, S.O. 1998, c. 19, with the applicable zoning by-law, and with a restrictive covenant registered on title to the lands on which the condominiums are situate.
[83] The Crown adverted to commentary in the judgment that refers to the phenomenon of AirBnB. For example, where the judge states that "The applicants argue that the advent of organizations like AirBnB has changed the nature of short-term leasing in the declarations to protect its business model …"
[84] Another citation that the Crown highlighted was when the judge alluded to "the current climate where websites like AirBnB make short-term leasing widespread and readily available …"
[85] In the case at bar, there is no specific evidence regarding the agreement between Mr. Chow and Mr. Wallenberg.
[86] The Crown submits that Mr. Chow "granted exclusive use and possession of the unit to Mr. Wallenberg against all the world", including Mr. Chow. He argues that Mr. Chow "was no longer entitled to come and go from the unit as he pleased". Therefore, theirs was a tenancy agreement.
[87] This submission is contrary to the fact that Mr. Chow retained a key to the apartment and that, without notice, he entered the apartment during the period that Mr. Wallenberg was occupying the unit to leave coupons and to reposition the clock-camera. What is more, he did not attempt to hide from Mr. Wallenberg that he did this.
[88] There is no evidence to support the Crown's argument that Mr. Chow "granted exclusive use and possession of the unit to Mr. Wallenberg against all the world", including Mr. Chow. It is mere speculation by the Crown.
[89] In any case, British American Oil Co. held that "The test of exclusive possession is by no means decisive" of the issue of whether an agreement is a licence or a lease.
[90] Furthermore, British American Oil Co. stipulated that "To determine whether an agreement creates the relationship of landlord and tenant or merely that of licensor and licensee, the intention of the parties must be ascertained. In the present case the whole of the documents signed by the parties must be carefully scrutinized and considered" (emphasis added).
[91] Since there is no clear evidence regarding the agreement between Mr. Chow and Mr. Wallenberg, it is impossible to ascertain the intention of the parties definitively. I cannot rely on TSCC No. 1556 and No. 1600 v. Owners of TSCC No. 1556, et al. as authority for the proposition that all AirBnB rentals are leases. This was not the issue in that case. Therefore, it did not decide this issue. It certainly was not the ratio decidendi of the case.
[92] In the circumstances of the case at bar, I find that it would be untenable to assume from the comments in TSCC No. 1556 and No. 1600 v. Owners of TSCC No. 1556, et al. that Mr. Chow and Mr. Wallenberg's agreement was a lease. I find that I do not have sufficient evidence to make a finding that it was a lease or a licence, or something else.
[93] The evidence that I do have from which an inference can be drawn regarding the type of agreement that Mr. Chow and Mr. Wallenberg entered concerning the apartment is: (1) that Mr. Chow was the sole owner of the apartment, (2) that Mr. Wallenberg and Mr. Chow came to an agreement that allowed Mr. Wallenberg to occupy the apartment for ten days, (3) that Mr. Chow entered the apartment without subterfuge during the ten days and left coupons with a note for Mr. Wallenberg, and (4) the ASF.
[94] Although I cannot think of a name for this business relationship, from this evidence I can infer that Mr. Chow retained a significant measure of mutually agreed upon control of the apartment. Had this not been the case, by entering the apartment as he did, Mr. Chow would have been risking the ire of Mr. Wallenberg, and possible complaints to the AirBnB organization, which could damage his relationship with them and, thereby, risk his business opportunities in the future regarding the apartment. It is reasonable to infer that he would not want to cause these consequences because they would be contrary to his business interests.
[95] Therefore, based on the above I find that there is not enough evidence to conclude that Mr. Chow and Mr. Wallenberg were in a landlord and tenant relationship, and that as a result of such a relationship he relinquished his reasonable expectation of privacy in the apartment.
[96] The Crown submitted that "Just as Mr. Wallenberg could invite friends or family into the unit, so too could he invite the police". I find that there is a significant difference between inviting family and friends for a visit and inviting a police officer over to search the apartment and seize Mr. Chow's property.
[97] I do not think that it would have been objectionable to invite the police to the apartment, per se. But to invite them over and allow them to search the apartment without a warrant and seize property encroached on Mr. Chow's reasonable expectation of privacy.
[98] Whatever rights Mr. Wallenberg had over the apartment, he could not waive Mr. Chow's privacy rights in the apartment and its contents, or to allow them to take photographs.
[99] In R. v. Cole, the court dealt with the third party consent of a school board to allow the police to seize a teacher's work-issued computer and search it. The teacher was allowed to use the computer for "incidental personal purposes".
[100] Fish J., stated the facts as follows:
While performing maintenance activities, a technician found on Mr. Cole's laptop a hidden folder containing nude and partially nude photographs of a female student. He notified the principal, and, under the latter's discretion, copied the photographs to a compact card or CD. The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second CD. The laptop and both CDs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes (para. 5)
[101] The court held that:
The Crown in this case could point to no law authorizing the police to conduct, as they did, a warrantless search of Mr. Cole's work laptop. The … lawful authority of his employer - a school board - to seize and search the laptop did not furnish the police with the same power. And the school board's "third party consent" to the search was of no legal consequence.
[102] Specifically, concerning third party consent to waive another's s. 8 rights, the court held:
… the doctrine of third party consent is inconsistent with this Court's jurisprudence on first party consent. As Iacobucci J. explained in Borden, at p. 162, "[i]n order for a waiver of the right to be secure against an unreasonable seizure to be effective, the person purporting to consent must be possessed of the requisite informational foundation for a true relinquishment of the right.
For consent to be valid, it must be both voluntary and informed. The adoption of a doctrine of third party consent in this country would imply that the police could interfere with an individual's privacy interests on the basis of a consent that is not voluntarily given by the rights holder, and not necessarily based on sufficient information in his or her hands to make a meaningful choice.
I would therefore reject the Crown's contention that a third party could validly consent to a search or otherwise waive a constitutional protection on behalf of another.
[103] Although the facts in Cole are different, the rationale for the rejection of a "third party waiver" of s. 8 constitutional rights is the same. Therefore, it applies to the case at bar.
[104] The Crown agrees that "Mr. Wallenberg's invitation into the residence did not in itself give the police the authority to seize Mr. Chow's property from within the apartment".
[105] The Crown submits that Cst. Lewis's authority to seize the clock-camera is founded in s. 489 (2) of the Criminal Code. This section states:
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
(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.
[106] I see two problems with this argument.
[107] First, the Crown relies on s. 489 (2) (b). He submits that Cst. Lewis "had reasonable grounds to believe that the device had been used in the commission of an offence". And further, "The clock was, on its face, evidence of a criminal offence".
[108] Cst. Lewis's evidence does not support the Crown's argument. He did not believe "on reasonable grounds" that the clock-camera had been used "in the commission of an offence" or that it would "afford evidence in respect of an offence". He testified that based on all the information that he had he thought that it was on the table as "a recording machine for possibly someone renting out the, the AirBnB". He wanted to "look into further to see if there was possible – any criminality into it". He was concerned about voyeurism (my emphasis).
[109] The Crown relied on R. v. Clarke for the proposition that "the officer doesn't need to use any magic words to establish reasonable and probable grounds". In that case, the arresting officer witnessed Mr. Clarke driving in an unsafe manner and stopped him. She detected the odour of an alcoholic beverage on his breath and other indicia of alcohol consumption. Therefore, she arrested him for impaired driving.
[110] The officer testified that she arrested Mr. Clarke for "impaired operation of a motor vehicle". Her opinion was that his ability to operate a motor vehicle was impaired by alcohol. The Crown asked her what her opinion was regarding the effect of that impairment on his ability to drive. She replied that "He should not have been behind the wheel of a motor vehicle" because "he was a danger to [other], either pedestrians or drivers or other motor vehicles on the roadway and to himself".
[111] At the end of the trial counsel agreed that "the arresting officer had not said the "magic words" of section 253, 'I arrested the accused because I formed the opinion his ability to operate a motor vehicle was impaired by alcohol or a drug.'"
[112] Durno J. stated in paragraph 13 that:
There are authorities which support the Crown's contention the officer does not have to say the "magic words." In some cases this has related to whether the officer had to state the reasonable and probable grounds for a breathalyzer demand. R. v. Fraelic (1977), 36 C.C.C. (2d) 473 (N.S.Co.Ct.) R. v. Blanchette (1978), 41 C.C.C. (2d) 205 (Alta.Dist.Ct.) In others it was grounds for an arrest. R. v. Hall (1995), 22 O.R.(3d) 289 (Ont.C.A.), R. v. Fraser [1996] O.J. No. 473 (Ont.Prov.Ct.) In all of the cases it was determined the court could infer from circumstantial evidence the officer had the requisite belief without having said the "magic words."
[113] I do not think that this case helps the Crown because Cst. Lewis clearly stated that all he had in his mind was a "possibility" that a crime had been committed with the clock-camera and a "possibility" that the clock-camera had been used in the commission of a criminal offence. In Clarke, the arresting officer saw the accused drive in a manner from which it could be inferred by the court that the arresting officer had reasonable and probable grounds to arrest him for driving while his ability to operate a motor vehicle was impaired by alcohol. In addition, she observed the indicia of alcohol consumption when she spoke to the driver.
[114] These circumstances are a far cry from the case at bar. Cst. Lewis did not observe the clock-camera in action. He did not know how it operated. The clock-camera was not plugged in. Nor did he observe anything from which I could infer that he had reasonable and probable grounds to believe that the clock-camera had been "used in the commission of an offence". He admitted as much by talking about "possibilities" rather than reasonable and probable grounds.
[115] In addition, I find that the circumstances are not sufficiently telling to counteract the officer's state of mind by allowing me to draw an inference that he had reasonable and probable grounds. The clock-camera was unplugged, and he did not know how it operated or if it was functional at all. He was concerned about voyeurism. This does not amount to reasonable grounds. All he had was a suspicion.
[116] In R. v. Chehil, the Supreme Court of Canada stated that:
reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
[117] I find that Cst. Lewis merely had a suspicion that the clock-camera possibly had been used "in the commission of a criminal offence". He did not have reasonable and probable grounds, nor do the circumstances allow me to infer that he did.
[118] Second, the Crown maintains that Cst. Lewis's "lawful authority to be present in the condo unit came from the invitation of Mr. Wallenberg, the tenant with exclusive possession of the residence".
[119] However, there is no evidence that the agreement between Mr. Chow and Mr. Wallenberg granted him "exclusive possession". Moreover, as I explained above, the evidence of Mr. Chow openly entering the apartment without prior notice during Mr. Wallenberg's stay there, contradicts this assertion.
[120] Regarding the clock-camera, the Crown asserted that "It is criminal in its nature and on its face. And that "The clock was, on its face, evidence of a criminal offence". PC Lewis had lawful authority to seize the clock on this basis".
[121] I do not agree that the clock-camera is criminal in nature and on its face. The Crown did not provide any authority to support these contentions. Furthermore, the Crown's contention is contrary to what is more and more a common practice of employing domestic surveillance devices in various parts of the residence, inner and outer. Surely, these devices are not criminal in nature per se.
[122] The context of Cst. Lewis's attendance at Mr. Chow's apartment is important in applying s. 489 (2) of the Criminal Code to the circumstances of the case at bar. Cst. Lewis's evidence is clear that when he took Mr. Wallenberg's statement at the hotel, he told him that there was a clock-camera in the bedroom pointing towards the bed. He thought Mr. Wallenberg had the authority to let him into the apartment. After Mr. Wallenberg told him this, Cst. Lewis went to the apartment with Mr. Wallenberg to investigate what Mr. Wallenberg had found.
[123] Based on this evidence I find as a fact that Cst. Lewis went to the apartment to investigate the situation. And that part of the investigation was to search the bedroom and the clock-camera. Indeed, this is what he did as soon as they arrived at the apartment.
[124] Cst. Lewis may have been "lawfully present" in the apartment in the sense that Mr. Wallenberg was entitled to invite him to the apartment per se. But Mr. Wallenberg was not entitled to invite Cst. Lewis to the apartment to (without a warrant) search it and its contents, specifically, the clock-camera, which is the reason that Cst. Lewis went there.
[125] Therefore, I find that in these circumstances, because of the intent with which Cst. Lewis went to the apartment, he was not "lawfully present" in the apartment. He cannot avail himself of the protection of s. 489 (2).
[126] Finally, there was no urgency that might justify Cst. Lewis's actions.
Disposition Regarding Cst. Lewis's Entry and Search of the Apartment and His Search and Seizure of the Clock-Camera
[127] Based on all the above, I find that the defence discharged its onus to prove on a balance of probabilities that Cst. Lewis breached Mr. Chow's rights under s. 8 of the Charter by entering his apartment without a warrant with the intention to search it, searching the bedroom and the clock-camera, and seizing the clock-camera.
The Inspection of the Clock-Camera by Detective Cst. Wallace
[128] The Crown submits that Detective Cst. Wallace's inspection of the clock-camera was a continuation of Cst. Lewis's seizure of it, not a new search.
[129] The ASF states that:
On September 10, 2018, D/Cst. Wallace retrieved the clock camera from the Toronto Police Property Locker and visually inspected it.
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.
[130] I do not agree that Detective Cst. Wallace's inspection of the clock-camera was a continuation of Cst. Lewis's search and seizure of it. Detective Cst. Wallace's actions took place the next day and in a different context. Cst. Lewis and Detective Cst. Wallace's searches were similar, but they were not the same search.
[131] The Crown argues further that Detective Cst. Wallace did not have to obtain a warrant to "look at" at the clock-camera because it had been lawfully seized by Cst. Lewis. As I found above, Cst. Lewis did not seize the clock-camera lawfully. Therefore, Detective Cst. Wallace's actions cannot piggyback on Cst. Lewis's.
[132] The Crown also argued that Detective Cst. Wallace was entitled to "look at" the clock-camera "to assist in drafting the application for an authorization to search it".
[133] This submission comes close to saying that Detective Cst. Wallace had to search the clock-camera in order to draft the application for a warrant to search it.
[134] In addition, this argument overlooks the fact that Detective Cst. Wallace did more than "look at" the clock-camera. The ASF states clearly that he "removed the back plate of the clock camera and observed the clock camera to contain a SD memory card".
[135] Finally, as in Cst. Lewis's case, there was no urgency that might justify Detective Cst. Wallace's actions.
Disposition Regarding Detective Cst. Wallace's Search of the Clock-Camera
[136] Based on the above, I find that the defence discharged its onus to prove on a balance of probabilities that Detective Cst. Wallace breached Mr. Chow's rights under s. 8 of the Charter when he retrieved the clock-camera from the property locker and searched it without a warrant.
The Search Warrant
Did the Issuance of the Search Warrant Breach Mr. Chow's Rights Under s. 8 of the Charter?
[137] In R. v. Bilachi the court stated that "An ITO is presumed to be valid and the onus of establishing its invalidity in a Charter application rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421 (Ont. C. A.), at para. 83".
[138] The test that I must apply is whether "on the record before the authorizing justice … the authorizing justice could have issued the warrant". I am not to "substitute my view for that of the authorizing judicial officer."
[139] Bilachi says that "In order to persuade an issuing justice to authorise a warrant, the ITO upon which it is founded must set out reasonable and probable grounds to believe an offence has been committed and that evidence relating to that offence will be found at the place to be searched: Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc., [1984] 2 S.C.R. 145 (S.C.C.), at page 168".
[140] In paragraph 21, Bilachi states that "The party challenging the warrant must establish that there was no basis upon which the authorising judge could have issued the warrant …" R. v. Lissing, 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.), at para. 8".
[141] I must "look at the totality of the circumstances set out in the ITO to determine whether the police had made out reasonable and probable grounds that evidence of the offence would be found on the items proposed to be searched: R. v. Choi, 2013 ONSC 291 (Ont. S.C.J.), at para. 37; Sadikove, at paras. 82, 88" (Bilachi, para. 21).
Defence Position
[142] The defence argues that the warrant is invalid because (1) there were no reasonable and probable grounds that an offence had been committed to issue it, and (2) even if there were, it was overbroad.
No Reasonable and Probable Grounds
[143] The defence submits that the same weaknesses regarding reasonable and probable grounds concerning the other aspects of the case apply with the same force to the issuance of the search warrant.
[144] Defence counsel stated that her strongest argument against the warrant is: "that there were no reasonable and probable grounds that an offence had been committed on the basis of the absence of information about how – whether the device was on, whether the camera was on, how it worked and any information about who was staying there, when".
[145] She submits that there is a striking absence of information in the ITO.
The police didn't gather any information about Mr. Chow's rental history at the property. They didn't provide the issuing Justice with any information regarding when other people stayed there, if at all, and no one, the police don't avert to or investigate the fact that Mr. Chow had been there and that he had a reasonable expectation of privacy in the device and that he had rights to privacy in the data. That issue is not fleshed out in any meaningful way or any way in the information to obtain, depriving, in my submission, the issuing Justice of the information required to, to balance the state's intrusion against the privacy rights of Mr. Chow, because Mr. Chow is just simply absent from the information to obtain.
[146] Defence counsel argues that the ITO does not contain any more information than Cst. Lewis had when he seized the clock-camera.
The Warrant Was Overbroad
[147] The defence maintains that even if there were reasonable and probable grounds to issue the warrant, it was overbroad. Mr. Wallenberg stayed in the apartment from September 7th to the 9th. If the Justice of the Peace was correct in issuing the warrant, he should have limited it to those dates.
[148] Instead, the warrant allowed the police to search every file on the SD memory card. They did not have any information regarding who was staying in the apartment during the times covered by all the rest of the files.
Crown Position
[149] The Crown argues that: (1) there were reasonable and probable grounds to issue the warrant and, (2) it was not overbroad.
There Were Reasonable and Probable Grounds
[150] In his oral submissions on the issuance of the search warrant, the Crown did not expand on his previous submissions regarding reasonable and probable grounds. Therefore, I assume that he relies on the same submissions as they pertain to the issuance of the search warrant.
It Was Not Overbroad
[151] The Crown argues that the police had reasonable and probable grounds to search, not just for images of Mr. Wallenberg, but "for images of a number of potential voyeurism victims or alleged victims".
[152] The basis for this argument is that the clock-camera was in the bedroom pointing at the bed. This is an apartment that Mr. Chow was renting out to persons. Therefore, "It's entirely reasonable, based on the circumstances in which this device was found, that evidence of voyeurism will be found on any or every file on that memory card".
[153] Moreover, the recordings would apply to AirBnB renters as well as anyone else that might be in the bedroom, for example, a houseguest. The Crown submitted that the police "were looking for anyone who was using a bedroom and was being filmed without their knowledge or consent. Why else would a hidden camera be pointed at a bed except to film someone without them knowing it[?]"
Analysis
Reasonable and Probable Grounds
[154] Detective Cst. Wallace sought the warrant pursuant to s. 487 (b) of the Criminal Code.
[155] Appendix "A" of the ITO states that the items that he wanted to search were: "Camera clock including the installed sd memory card and its contents", which was in "property locker #83 - 51 Parliament Street, Toronto".
[156] Subsection 487 (b) states:
487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,
may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant
(d) to search the building, receptacle or place for any such thing and to seize it,
[157] Appendix "B" to the ITO states that the offence in relation to which he sought the warrant was s. 162 (1) (a) of the Criminal Code, which states:
162 (1) Everyone commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
[158] Appendix "F" to the ITO states the grounds on which Detective Cst. Wallace relied to support his request for the warrant.
[159] In summation, his application tells the Justice of the Peace that Mr. Wallenberg discovered a hidden camera in a clock in the bedroom of an AirBnB that he rented from Mr. Chow. The camera was pointed at the bed. Mr. Wallenberg researched the clock-camera on the internet and determined that it had the capability of recording data and storing it.
[160] Cst. Lewis went to the AirBnB apartment and inspected the camera and determined that it contained a hidden camera. He seized the camera and put it into locker #83 at 51 Division. The next day, Detective Cst. Wallace took out the camera from the locker and inspected it. He found that it contained a mini SD memory card that was capable of recording images and information.
[161] I find that based on this, and the other information in the ITO, there were reasonable grounds to believe that the clock-camera and the SD memory card would afford evidence with respect to the commission of an offence under s. 162 (1) (a) of the Criminal Code.
[162] I do not agree that the Justice of the Peace had to know whether the clock-camera was on, or how it worked, or information about who stayed at the apartment and when they stayed there. It is enough that the ITO states that Mr. Chow was renting out the apartment on the AirBnB marketplace generally, and had specifically rented it to Mr. Wallenberg, and that in the bedroom he had a camera hidden in a clock radio that was pointed at the bed.
Was the Warrant Overbroad?
[163] I agree with the Crown that it is reasonable that the police were investigating an offence under s. 162 (1) (a) of the Criminal Code with respect to persons in addition to Mr. Wallenberg who may have rented the AirBnB apartment, or who had been in the bedroom, whether they rented the apartment or not, and whose images it was reasonable to believe had been captured by the clock-camera.
[164] I do not think that the police were required to furnish to the Justice of the Peace information regarding who was staying in the apartment during the times covered by all the rest of the files.
[165] I find that the warrant was not overbroad.
[166] Therefore, I find that "on the record before the authorizing justice … the authorizing justice could have issued the warrant".
[167] I cannot find that "there was no basis upon which the authorising judge could have issued the warrant …" I find that the warrant was validly issued. Consequently, the defence application fails with respect to the warrant.
Should the Evidence Be Excluded Under 24 (2) of the Charter?
[168] In R. v. Grant, the court held that:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.
[169] The court set out a three-part test to determine whether evidence obtained in circumstances of a breach of the Charter should be admitted or excluded.
[170] The first step is:
Seriousness of the Charter-Infringing State Conduct
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach…The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[171] In the case before me the police committed three breaches of Mr. Chow's rights under s. 8 of the Charter: (1) When Cst. Lewis entered the apartment, (2) when he seized the clock-camera, and (3) when Detective Cst. Wallace took the clock-camera out of the property locker and searched it.
[172] Regarding the first breach, I find that Cst. Lewis made an understandable mistake in assuming that because Mr. Wallenberg was still renting the unit and had a key, that he had the authority to allow him into the apartment and to search it. Cst. Lewis did not search anywhere other than the bedroom.
[173] I point out that given the "AirBnB relationship" between Mr. Wallenberg and Mr. Chow, this fact scenario presented a challenging question to Cst. Lewis regarding the law regarding third party consent to waive another person's rights under s. 8 of the Charter. After considering all the circumstances I find that this breach was an inadvertent violation of the Charter that would "minimally undermine public confidence in the rule of law". I find that the breach was on the lower end of seriousness.
[174] The second breach is more serious because it is not reasonable that Cst. Lewis's understandable mistake that Mr. Wallenberg had the authority to allow him into the apartment to search extended to an authority to allow him to seize Mr. Chow's property in the apartment.
[175] I acknowledge that Cst. Lewis said that he was simply following Detective McDonald's orders. This fact may transfer some of the responsibility for the breach to Detective McDonald, but it does not mitigate the seriousness of the breach, which involved two police officers.
[176] The third breach is serious because it appears that Detective Cst. Wallace searched the clock-camera to find the SD memory card in order to enhance his ITO. He should have asked for the warrant based on the circumstances that he knew already existed.
[177] It is difficult to argue that Detective Cst. Wallace was labouring under any misunderstanding of a difficult area of the law, or that he was following orders to do what he did.
[178] I understand that what Detective Cst. Wallace really wanted to search was the SD memory card that was in the clock-camera. But he had to search the clock-camera to confirm that it contained the memory card.
[179] In one sense, searching the clock-camera and searching the SD memory card are separate things, but in another sense, they are part of the overall search of the clock-camera. He had to search the clock-camera to see if had a memory card. When looked at in that light, it could be said that he was searching at least part of the very item that he was seeking a warrant to search. This is born out by "Appendix "A" of the ITO, which says that the items to be searched are "Camera clock including the installed sd memory card and its contents".
[180] Concerning the three searches, the fact that there were no exigent circumstances that required that these searches be performed immediately tends to make the breaches more serious because the police could have easily waited to obtain a search warrant.
[181] I find that the breaches go from the least serious of entering the apartment and searching the bedroom, to the more serious of seizing the clock-camera, to the most serious of searching the clock-camera in the property locker to find the memory card.
[182] When the police actions are looked at cumulatively, a picture develops of a pattern of behaviour marred by carelessness regarding Mr. Chow's rights. I find that the cumulative effect of the three breaches puts the breaches of Mr. Chow's rights in the serious category.
[183] The next step is:
Impact on the Charter-Protected Interests of the Accused
This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed…The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests…The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[184] Although Mr. Chow's reasonable expectation of privacy was diminished in the apartment, it was not diminished regarding the seizing of the clock-camera. No matter what can be said about the right of an AirBnB renter to allow the police to enter the unit and search it, it is difficult to see how such a right, if it exists, could extend to the seizure by the police without a warrant of items of the owner's property in the unit.
[185] Therefore, I find that the seizure of the clock-camera by Cst. Lewis and Detective Cst. Wallace's subsequent search of it were serious breaches of Mr. Chow's rights under s. 8 of the Charter. They undermined his privacy right to have the property in the apartment left alone by the police unless they have legal authority to seize it.
[186] This was a serious "incursion" on his rights. The police should know by now that they cannot without proper authorization take a citizen's property out of his or her dwelling unit, even if it is an occasional dwelling unit.
[187] In this case, the police ignored Mr. Chow's rights when they could have easily asked for a search warrant. I find that the failure of the police to ask for a search warrant to seize and search the clock-camera played an important part in undermining Mr. Chow's interests that are protected by s. 8 of the Charter not to have his property seized by the police without lawful authority.
[188] The final step is:
Society's Interest in an Adjudication on the Merits
…the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion…a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
…The reliability of the evidence is an important factor in this line of inquiry…The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.
…The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.
The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry…The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
…Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
[189] The evidence on the SD memory card is reliable evidence. It supports the "truth-seeking function of the criminal trial process". Without it, the prosecution fails. I acknowledge that the exclusion of this evidence could "undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute".
[190] However, I point out that the breaches dealt with Mr. Chow's dwelling and the contents of his dwelling. Although I found that it was an "occasional dwelling", in which he had a diminished expectation of privacy, as Cole held, "[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s.8 of the Charter".
[191] Importantly, I find that this diminished expectation of privacy does not allow for warrantless seizures by the police of the owner's property inside the dwelling. The police not only breached Mr. Chow's rights by entering and searching the apartment without a warrant, but they continued to breach his rights by seizing his property and searching it.
[192] Although society has an interest in matters being adjudicated on their merits, I find that admitting evidence that was obtained in such a manner would bring the administration of justice into disrepute.
[193] If there had been only one breach of Mr. Chow's rights under s. 8 of the Charter, I may have admitted the evidence, but as stated above, the circumstances of this case revealed a pattern of careless conduct by the police that led them to commit multiple breaches of Mr. Chow's constitutional rights. Therefore, the evidence is excluded.
Released: January 29, 2020
Signed: Justice J. W. Bovard