An accused Airbnb peeping Tom will be going on trial after all.
Michael Chow was charged with voyeurism in 2018 after a shocked Vancouver man discovered a camera hidden in the luxury condo he’d rented from him for 10 days during the Toronto International Film festival.
Chow, though, walked free after both the trial judge and an appeal judge agreed Toronto Police had violated his privacy when they entered the condo at the invitation of the renter and seized the hidden camera without a warrant.
They threw out the evidence and without the camera clock, there was no case.
But in a decision released Tuesday, Ontario’s highest court found those judges had it wrong. They set aside Chow’s acquittal and ordered a new trial after ruling he had no reasonable expectation of privacy after he rented out the place to a stranger.
“He had no privacy expectation at all,” wrote Justice Grant Huscroft on behalf of the three-judge panel.
“A reasonable person in (Chow’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.”
Rob Wallenberg booked the Victoria St. luxury condo on Airbnb and checked in Sept. 6, 2018, never imaging he was being watched.
When a light from a bedside clock was interfering with his sleep on Sept. 7, Wallenberg moved his camera bag in front of it.
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On the morning of Sept. 9, he noticed his bag had been moved away from the clock and there was a message from Chow that he’d been in the apartment and left him some coupons. According to the ruling, the suspicious renter then examined the alarm clock and found it contained a concealed camera.
“I was super angry and then super scared,” Wallenberg told CTV Vancouver at the time.
He called Airbnb which advised him to go to a hotel and call police. According to their policy, hosts are required to disclose all security cameras and recording devices to their guests but “cameras are never allowed in bedroom or bathrooms.”
Wallenberg let the police into the condo and they seized the clock camera. When they realized it contained a memory card, they obtained a warrant to search it — no videos of Wallenberg were found but there were files that showed various people in the bedroom, including an unidentified male masturbating on the bed.
Chow was charged with voyeurism.
He claimed his rights had been violated by an unlawful search and seizure and the evidence had to be excluded. The lower courts agreed. “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,” the trial judge wrote.
The Crown appealed and lost.
The appeal judge found the police search of the apartment, seizure of the clock-camera and checking the device for a memory card amounted to serious Charter breaches, stating there was “absolutely no reason” why the police didn’t obtain a search warrant from the start.
Not so, says Ontario’s highest court.
“It was not objectively reasonable for (Chow) 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.”
It was Wallenberg who allegedly had his rights violated — and not the other way around.
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