Police had no right to seize hidden bedside camera from Airbnb condo in Toronto, judge says

The decision effectively ended the voyeurism prosecution of the Toronto condo owner, Michael Chow

A police officer had no right to enter a condo rented to an Airbnb guest who found a video camera hidden in a clock pointed at the bed, an Ontario judge has ruled.

The decision effectively ended the voyeurism prosecution of the Toronto condo owner, Michael Chow. He had argued police had breached his rights by going into the apartment and seizing the camera without a warrant, even though the aggrieved guest had invited an officer in.

“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,” Ontario court judge Joseph Bovard said in the decision. “Admitting evidence that was obtained in such a manner would bring the administration of justice into disrepute.”

The case arose in September 2018 when Robert Wallenberg, in town for the Toronto International Film Festival, rented the downtown Airbnb apartment from Chow for 10 days. After discovering the hidden camera, Wallenberg contacted Airbnb, which advised him to go to a hotel and call police.

Court records show Wallenberg let the officer, identified as Const. Lewis, into the apartment and showed him the clock-camera. On advice of a detective, Lewis seized the gadget and placed it in a property locker at the police station. Another officer later inspected the camera briefly, then applied for a warrant to search the device.

ALSO READ: Airbnb restricts young people from renting after slew of deadly house parties

After finding stored video of people engaged in various activities in the bedroom, including one man masturbating on the bed and others, including Chow, in various states of undress, police charged the owner with voyeurism.

At trial, Chow argued for exclusion of the video evidence on the basis that police violated his rights with the warrantless search and seizure.

Lewis testified he made no attempt to contact Chow before entering the condo. He said he believed he was justified in going in at Wallenberg’s invitation because the Airbnb guest had the key and temporary ownership of the unit. He said he seized the device on the advice of the detective to preserve potential evidence.

In his analysis, Bovard said a key issue in deciding whether police had breached Chow’s charter right against unreasonable search and seizure was whether the owner had a reasonable expectation of privacy in the condo unit. Bovard concluded Chow did, given evidence that he was the sole owner of the apartment, it was filled with his possessions, and he used it himself at times.

“In these circumstances, Mr. Chow had a subjective expectation of privacy in the apartment,” Bovard concluded. “Mr. Chow had a reasonable expectation of privacy in the clock-camera and in the contents of the SD memory card.”

The judge also rejected prosecution arguments that by renting out his condo to Wallenberg, Chow had undermined his own privacy expectations.

“Whatever rights Mr. Wallenberg had over the apartment, he could not waive Mr. Chow’s privacy rights in the apartment and its contents,” Bovard said.

The judge also concluded the officer’s suspicion of possible criminal activity did not give him the right to seize the clock-camera or allow police to inspect it without a warrant. Bovard said he realized that excluding the evidence would gut the prosecution’s case, but said he had to do so anyway given the cumulative charter violations.

Colin Perkel, The Canadian Press

Like us on Facebook and follow us on Twitter.

short term rentals

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

BC SPCA team helps discover new feline virus after outbreak at Quesnel shelter

Fechavirus is a kind of parvovirus, which makes cats and kittens very sick

COVID-19 highlights lack of connectivity in First Nations communities

Many don’t have access required to utilize online platforms, says First Nations Technology Council

Commercial salmon fisheries delayed for Bella Coola area

DFO notice says Area C gill net fisheries in Area 8 have been delayed until June 15

Pacific Coastal won’t open until community is ready

The company has suspended operations until further notice

VIDEO: A Vancouver Island black bear takes weekend nap in eagle tree

Videos captured by Terry Eissfeldt shows the bear arriving Saturday night and sleeping in on Sunday

George Floyd asphyxiated by sustained pressure: family autopsy

Death sparked a wave of protests across the U.S. and abroad

COVID-19: B.C. commercial landlords can’t evict if they decline rent assistance

Emergency order ‘incentive’ for federal program, Carole James says

Investigators probe death of CN employee at Surrey rail yard

Transportation Safety Board is investigating an ‘occurrence that took place during switching operations’

Trans Mountain starts B.C. leg of pipeline twinning project

Mostly finished in Alberta, Burnaby terminal expanding

NDP getting COVID-19 wage subsidy ‘indirectly,’ B.C. Liberal leader says

Andrew Wilkinson says he’s heard no concerns from public

Love flourishes at Peace Arch Park, but COVID-19 concerns loom

South Surrey park becomes only place for international couples to meet

Most Read