R v Chow: REOPening the Privacy Debate

Jerry Zhu, 3L, Senior Editor

On July 26, 2022, the Ontario Court of Appeal (ONCA) released R v Chow, 2022 ONCA 555 (Chow ONCA), which dealt with whether the owner of an Airbnb unit had a privacy interest in his unit while it was rented out to a tenant. The decision has significant implications for police searches and seizures in Ontario and may impact the constitutional rights of property and resource owners in the sharing economy more broadly.

 

The Facts

In Chow, a man (“the complainant”) rented an apartment from respondent Michael Chow through Airbnb for a short-term visit to Toronto on Sept. 6, 2018. During the night of Sept. 7, the complainant was bothered by light coming from an alarm clock on a table facing the bed and used his bag to block the light. On the morning of Sept. 9, he noticed the bag had been moved and was no longer in front of the alarm clock. Chow left a message indicating that he had been in the apartment.

 

The complainant inspected the alarm clock and discovered it contained a concealed camera. The complainant returned to the apartment with police who seized the camera. The police then obtained a warrant to search the device and its memory card. The memory card contained, among other things, a video of an unidentified man (not the complainant) masturbating in the apartment bedroom.

 

The police charged Chow with voyeurism under s 162(1) of the Criminal Code for violating the complainant’s privacy. However, Chow brought an application to exclude the camera evidence, alleging that the police’s entry and search of his apartment without a warrant was a violation of Chow’s section 8 right under the Canadian Charter of Rights and Freedoms (“Charter”).

 

Lower Court Decisions – Ontario Court of Justice and Superior Court

Both the Ontario Court of Justice (ONCJ) and the Superior Court on appeal found that the police had violated Chow’s section 8 Charter right against unreasonable search and seizure. They excluded the evidence from the camera and the charge was dismissed.

 

The Ontario Court of Justice found that the respondent had a reasonable expectation of privacy (“REOP”) over his apartment because of his “ownership of the apartment, control over it, occasional usage, and regulation of its usage by others” (Chow ONCA at para 14). Although the respondent’s “expectation of privacy was reduced by renting the apartment,” there was no basis to conclude that “the respondent had granted exclusive use and possession of the apartment to the complainant” (Chow ONCA at para 14).

 

The Superior Court of Justice upheld the ONCJ’s decision, finding that although the complainant could invite others into the respondent’s apartment, 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” (Chow ONCA at para 17). The police’s inspection of the unit was thus a warrantless search and presumptively unreasonable.

The Ontario Court of Appeal

The Court of Appeal disagreed with the lower courts, finding that Chow did not have a reasonable expectation of privacy in the apartment at the time the police entered the apartment. Thus, there was no “search” within the meaning of section 8 of the Charter, and accordingly no breach of the respondent’s section 8 rights. The Court of Appeal ordered a new trial.

Section 8 of the Charter and the Reasonable Expectation of Privacy (“REOP”)

To challenge an unreasonable search or seizure under section 8, an accused must first demonstrate they had a reasonable expectation of privacy when the putative search occurred (R v Mills, 2019 SCC 22). A “reasonable expectation of privacy” is a normative concept about when Canadians ought to expect privacy. Whether a reasonable expectation exists is not limited to prior case law considerations nor a rigid list of factors.

 

In this case, the Court of Appeal focused on whether the respondent had a reasonable expectation of privacy when the impugned police conduct occurred—when the apartment was rented to the complainant.

 

To determine whether an owner who rents out a temporary Airbnb unit has a reasonable expectation of privacy, the Court looked at two aspects of privacy: whether the owner can credibly claim that he had a subjective expectation of privacy, and whether that subjective expectation was objectively reasonable in the circumstances.

 

Because Chow did not testify at trial, the court had to make inferences as to whether he had a subjective expectation of privacy. Although he owned the apartment, it was not obvious that he had used the apartment as his home in any meaningful sense. The Court found that the respondent had been at the apartment only a handful of times during the brief period that he owned it. Although it would be reasonable to infer that Chow had a subjective expectation of privacy during the times he stayed at the apartment, it was not obvious that the respondent had a subjective expectation of privacy when the apartment was being rented out.

 

Even if Chow did have a subjective expectation of privacy, he did not meet his burden of establishing that his expectation was objectively reasonable. At the objective stage of the REOP inquiry, ownership of property is a relevant consideration, but it is not determinative. In this case, the Court of Appeal found the respondent’s ownership was insufficient to establish an objective privacy expectation.

 

The Court of Appeal also noted that although the respondent still possessed a key to his apartment, he had relinquished his control over the unit because there was no evidence the respondent was authorized to enter the apartment during the complainant’s stay. This also weighed against any expectation of privacy.

 

Instead of retaining his own expectation of privacy, the respondent’s actions had given rise to the complainant’s reasonable expectation of privacy during his stay in the apartment. The complainant was entitled to the protection of section 8 as against the state during the rental period, but he was also entitled to the protection of the state, insofar as the Criminal Code applied. The Court of Appeal 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” (Chow ONCA at para 41). Acceptance of the respondent’s claim of privacy against the state would render it all but impossible to give effect to the complainant’s right to state protection.

No Reasonable Expectation of Privacy in the Sharing Economy?

The Chow decision leaves open the possibility that apartment owners can reasonably expect privacy in their property during long-term rentals, but not short-term ones. The Court of Appeal stated that its decision 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” (Chow ONCA at para 22). On the contrary, it seems that whether privacy rights will be recognized in home rental situations will be a fact-driven inquiry.

 

However, this fact-driven determination is unpredictable. In the growing sharing economy, where property owners share their goods and resources, unique living situations arise all the time. Airbnbs can be rented from one night to several months without a lease agreement. When does a short-term rental become a long-term one, and to what extent would this distinction affect the privacy expectations of both occupiers and owners, if at all?

 

The Court of Appeal carved out exceptional situations where the Chow holding would not apply. Short-term Airbnb rentals may afford property owners an objective expectation of privacy where the property is shared between owner and renter during the rental, or the unit includes the owner’s personal effects that depict his dignity, integrity, and autonomy (Chow ONCA at para 37). However, this allowance creates uncertainty. Airbnbs come in all shapes and sizes; some owners rent out units with little personal contributions to the unit, maintaining units exclusively for rental purposes, while other owners may live at their Airbnb from time to time. At what point would a landlord’s objective expectation of privacy become compromised? In Airbnbs where renters occupy an owner’s spare room with the owner present, does the owner enjoy a reasonable expectation of privacy in any space that is not the owner’s bedroom? Does the owner enjoy privacy in areas where renters do not traditionally venture (e.g. potentially cellars, garage, basements)?

 

If no reasonable expectation of privacy exists, then legally speaking, a police inspection cannot rise to the level of a “search” attracting section 8 protection. The problem with ambiguity in whether a reasonable expectation of privacy exists is that without certainty of privacy, police may not need to justify their search of one’s home in short-term Airbnb rental situations at all. In a factual matrix like that in Chow, the police could enter the landlord’s unit for any reason so long as they respected the privacy interests of any potential renters at the time. If this conclusion makes you uneasy, perhaps it’s because you agree that Chow was probably entitled to a reasonable expectation of privacy over his property so that any police search would require justification—albeit a weaker expectation than that of an owner who lives in the property on a full-time basis.

 

In a hypothetical circumstance where the Court had instead recognized Chow’s reasonable expectation of privacy (which would have rendered the police’s warrantless search presumptively unreasonable), there would still be other legal mechanisms the Court could use to achieve the same outcome of allowing the evidence obtained by police to enter Chow’s criminal trial. Determining whether a search has occurred is only the first step of the section 8 analysis. At the next step, the court asks whether the search or seizure was reasonable in the circumstances. If the search was unreasonable, only then has a Charter violation has occurred. Even so, section 24(2) may permit the evidence obtained in breach of someone’s Charter rights to be admitted at trial so long as admitting it would not bring the administration of justice into disrepute. The Court could have relied on the second stage of the section 8 analysis or on section 24(2) to achieve the same outcome without denying Chow’s reasonable expectation of privacy.

Application to Other Examples of the Sharing Economy

This case also prompts considering whether other sharing economy examples would give rise to a reasonable expectation of privacy. Does the same logic from Chow extend to other space-sharing arrangements beyond the home, such as the sharing of a workspace (e.g., WeWork)? The privacy measures between workplaces and the home are similar in some respects since workplaces contain confidential business information. How about sharing equipment or possessions (e.g., Sparetoolz)? Is there an expectation that possessions engage an owner’s privacy interests?

 

The convenience and lower prices of shared resources has increased the prevalence of sharing arrangements throughout the economy. However, regulation has been sparse, which can be problematic. Where legislation fails to keep up with the rapidly evolving sharing economy, particularly in the privacy interest arena, a proliferation of section 8 Charter cases like R v Chow may be on the horizon.