‘Novel’ decision on Airbnb search creates ‘chilling effect on privacy itself,’ criminal lawyer says

By Amanda Jerome

Law360 Canada (August 2, 2022, 11:35 AM EDT) -- The Ontario Court of Appeal has ordered a new trial in a case where an Airbnb guest found a camera concealed in an alarm clock by the bed, ruling that the “complainant was entitled to consent to have the police enter the apartment to investigate” and that the apartment owner “did not have an overlapping or shared privacy expectation in the apartment while it was rented to the complainant.”

Chris Sewrattan, a criminal lawyer in Toronto, said this is a “novel decision in the section 8 case law.”

He told The Lawyer’s Daily that the decision “removes the lowest barrier against an unreasonable search and seizure, which is a reasonable expectation of privacy.”

Chris Sewrattan

Chris Sewrattan

“More often what you’ll find in these search cases is that there is a reasonable expectation of privacy, but the police were allowed to breach it. But, for whatever reason, the Court of Appeal took an entirely more conservative approach and found that the police don’t have to worry about breaching anything because there simply wasn’t a reasonable expectation of privacy,” he explained.

Sewrattan said the decision creates “uncertainty.”

“The whole concept behind privacy in section 8 is that part of privacy is the security in knowing that something will be private,” he explained, noting the “whole value” of privacy is “lost” if you don’t have the security of that knowledge, which is why “warrantless searches and searches without a warrant are presumptively unreasonable.”

“What the Court of Appeal does here,” he added, is state that “in a particular instance, an Airbnb on a long-term rental may have no privacy interests for the owner.”

“If you’re the police, I think the most sensible way of reading this decision is that there is some licence when you’re investigating a long-term rental to just walk into the residence if the renter lets you in because the Court of Appeal said in this instance that that was allowed. And whether or not that’s legal is going to have to be worked out in court after the fact,” he cautioned.  

Sewrattan believes the decision will have a “chilling effect on privacy itself because the owner will not know whether they have a privacy interest with the police until it’s too late.”

With regards to what lawyers should be aware of, Sewrattan noted that “everyone should hold their breath a little bit” because he imagines “there will be an application for leave to appeal” to the Supreme Court of Canada.

“In terms of practice otherwise,” he added, “any lawyer doing this kind of litigation, if they’re going to assert a privacy interest in a home, they may need to consider calling the client to testify about how private the home was for them. Because it seems that if the applicant had done that in this case, there’s a good chance the Court of Appeal would not have been able to rule the way it did.”

What Sewrattan found so “odd” about this decision is that the Court of Appeal seemed “fuelled” by result.

“They didn’t want this guy to be able to record his guest and just get away with it and claim that he had a privacy interest; ‘you can’t tell on me when I record you.’ If that’s the result they wanted they could have framed this in a different analytical way by saying the guest could consent to the police coming into the residence and thereby waive the homeowner’s consent, which is called a third-party waiver,” he said.

He noted that “although the Supreme Court hasn’t weighed in on it, the Court of Appeal has in the past and using its own past law, the Court of Appeal could have said it was validly waived in this case, and it would have a good leg to stand on.”

“But instead, they went through this very novel and weird way of getting to the same result and in doing so they may have messed up the law,” he added.

According to court documents in R. v. Chow, 2022 ONCA 555 the respondent, Michael Chow, owns an apartment in Toronto, which he “rents to third parties” through Airbnb. The complainant, the court noted, rented the apartment “for a ten-day period during the Toronto International Film Festival and checked into the apartment on September 6, 2018.”

The complainant was “bothered by light coming from what appeared to be an ordinary alarm clock on a table facing the bed” on the evening of Sept. 7. He therefore, “moved his bag in front of the clock to block the light.”

However, on the morning of Sept. 9, the complainant noticed that his bag had been moved away from the alarm clock and a message “left by the respondent indicated that he had been in the apartment and left some coupons for the complainant.”

The complainant “inspected the alarm clock and discovered that it contained a concealed camera.”

When he notified Airbnb, the company told him to “check into a hotel and call the police.” He followed this direction and then “returned to the apartment with Police Constable Lewis.”

According to court documents, the complainant showed PC Lewis the alarm clock in the bedroom, which he then “seized” on the “instructions of Detective McDonald, whom he consulted by telephone.”

The alarm clock was taken to the police station, “where it was inspected by Detective Constable Wallace the next day.” The detective “discovered that the device had a memory card.”

According to court documents, the device was returned to the property locker and DC Wallace “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. Nothing from this location was seized,” the court explained, noting that the respondent was then charged with voyeurism.

The trial judge, Justice Joseph Bovard of the Ontario Court of Justice, determined that “the subject matter of the search was the Airbnb apartment as well as the clock-camera.”

Justice Bovard found that “the respondent had a reasonable expectation of privacy in the clock-camera and the contents of the memory card.” He determined 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, the court noted, “considered that the respondent’s expectation of privacy was reduced by renting the apartment,” but 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.”

Justice Bovard 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” and that the “warrantless search” of the clock-camera violated s. 8 of the Charter, but the warrant was “validly issued.”

With regards to s. 24(2), Justice Bovard found that “the cumulative effect of the three searches was a serious breach of the respondent’s rights” and that 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,” he determined that the “admission of the evidence would bring the administration of justice into disrepute.” Therefore, the respondent is acquitted of the voyeurism charge.

The decision was upheld by the summary conviction appeal judge, Justice Susan Himel of the Superior Court of Justice, who “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.”

She found that the complainant had “the right to admit the police into the apartment,” but she “agreed with the trial judge that the complainant could not authorize the police to search the apartment or inspect the respondent’s possessions.”

Justice Himel determined that 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.” Therefore, the police search was “a warrantless search and so presumptively unreasonable.”

Justice Grant Huscroft, writing for the Court of Appeal, called the decisions below “erroneous” and determined that the excluded evidence should be admitted.

“In this case,” he explained, “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,” he clarified.

The judge noted that “[I]n 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.”

“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,” he added, noting that evidence shows that the respondent was “in the apartment on four occasions.”

He also noted that 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.”

Justice Huscroft explained that it is “reasonable to presume that the respondent had a subjective expectation of privacy during the times he stayed at the apartment,” but 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” as that is “when the impugned police conduct occurred.”

The judge noted that “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,” he added, “the respondent cannot meet his burden of establishing that his expectation was objectively reasonable.”

“Ownership of property,” the court noted, “is a relevant consideration, but it is not determinative of the reasonable expectation of privacy for all purposes, in all circumstances.

“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,” explained Justice Huscroft, noting that, 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,” he determined, stressing that he did “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,” he clarified, noting that in every case, “the burden is on the rights claimant to establish that a reasonable expectation of privacy exists.”

“The respondent failed to meet that burden in this case,” he added.

The court noted that though “the respondent may have stayed at the apartment on one or two occasions prior to the complainant’s rental” it is “not significant, let alone determinative of whether the apartment was his home.”

The court also noted that “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,” wrote Justice Huscroft.

The court stressed that 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,” the judge noted.

“At the same time,” he added, “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 court noted that 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” and that this analysis “applies to the clock-camera as well as the apartment itself …”

Justice Huscroft therefore determined 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,” he explained.

Justice Huscroft concluded that “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.”

He allowed the appeal, with Justices Michael Tulloch and Bradley Miller in agreement, in a decision released July 26. The Court of Appeal set aside the acquittal, admitted the excluded evidence and ordered a new trial.

The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision. Counsel for the appellant did not respond to request for comment before press time.

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