Robert Wallenberg, in town for the Toronto International Film Festival, rented a downtown Toronto Airbnb apartment from Michael Chow for 10 days in 2018. (The Canadian Press)

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

Sidney Community Association aims to generate enthusiasm for OCP review

First of several community engagement sessions starts March 1

Coast Capital Savings in Saanich to re-open after COVID-19 scare

The branch closed ‘out of an abundance of caution’

Athletes gear up for Pan Am XC Cup at Bear Mountain Saturday

This is the first time Canada is hosting the championships

Extra precautions against COVID-19 put in place as tourism season arrives

Airports and border services follow federal cues to minimize spread of coronavirus

Nominations for Victoria municipal byelection are in

Victoria will elect one councillor

Toddler killed in Squamish grocery store parking lot

Child’s mother taken to hospital but her condition is not known

Two law enforcement trucks ‘deliberately’ set on fire in northern B.C., RCMP say

Police say they have video evidence of a person in the area of the truck fires

B.C. mother, daughter return home after coronavirus quarantine in Asia

Jensine Morabito and her daughter were on Holland America’s Westerdam but did not catch the virus

Leap Year means we get an extra day in February, so how are you spending it?

People online have a number of suggestions and plans on how they will be spending Saturday

Greta sticker that drew outrage in Alberta not child pornography: RCMP

X-Site Energy Services has denied having anything to do with the stickers

Bald eagle hit by train in northern B.C. has a chance of survival

The raptor has been taken to OWL in the Lower Mainland for recovery

Cheslatta Carrier Nation and Rio Tinto sign a historic agreement

Co-operation crucial to stem dropping Nechako Reservoir level

Stories of sexual assault at B.C. tree planting camps ‘shocking but not surprising:’ advocate

Contractors’ association is working with trainers to create respectful culture

Most Read