In R. v. Chow, 2022 ONCA 555, July 26, 2022, the accused rented an apartment he owned.  The tenant found a hidden camera set up in a radio.  He contacted the police.  The police (PC Lewis) entered the apartment and seized the camera.  They did not have a warrant for either act.

The accused was charged with the offence of voyeurism, contrary to section 162(1) of the Criminal Code.  At his trial, the accused was acquitted after the trial judge excluded the camera as evidence on the basis that the accused had a reasonable expectation of privacy in the apartment and therefore the warrantless search violated section 8 of the Charter.  The Crown’s appeal to the summary conviction appeal court was dismissed.  The Crown sought leave to appeal to the Court of Appeal.

The appeal was allowed and a new trial ordered. The Ontario Court of Appeal concluded that the accused “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” (at paragraph 6).

Section 8 of the Charter:

The Court of Appeal indicted that “[i]n 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…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” (at paragraphs 22 and 23).

The Court of Appeal held that “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 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” (at paragraphs 33 and 38).

The Court of Appeal concluded 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” (at paragraph 43).

Section 489(2) of the Criminal Code:

The Court of Appeal held that that the police were “lawfully present” in the apartment within the meaning of section 489(2) of the Criminal Code and they had “reasonable grounds” to believe the clock had “been used in the commission of an offence”.  The Court of Appeal concluded that the trial judge and the appeal court judge erred (at paragraph 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 [sic] 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.