August 18, 2022

By Mark Mikulasik

Privacy is an increasingly important issue in society. The need for privacy occurs in many situations and in various forms. No doubt you value your privacy as much as most people. Canadian courts have recognized that the right to privacy exists independently of legislation because of the importance of an individual’s dignity, integrity, and autonomy. Those are interests worth protecting in Canadian society.

THE ISSUE

One of the situations in which you may assume that you are entitled to privacy is when you rent an Airbnb.

But is it you or your landlord (the owner) who is entitled to privacy according to the law?

Fortunately, the Court of Appeal agrees that it is you who are entitled to privacy while you are renting the unit. Somewhat surprisingly, two lower court judges though had a different opinion.

How do we know this?

THE CASE

Because of the question of whose privacy it is arose in a criminal law context in the case of R. v. Chow. In that case, the owner was charged with the Criminal Code offence of voyeurism, a sex related crime normally associated with the surreptitious photographing or filming of intimate body parts, often in washrooms. In the Chow case, the owner had hidden a camera in an alarm clock in the bedroom of the unit. The camera created a light source which the renter noticed. When they investigated and found the camera, they called the police. The police seized the camera and took it to the station before obtaining a search warrant. They did obtain the search warrant before viewing the material that had been filmed.

If there is no reasonable expectation of privacy, a warrant is not required.

The owner defended the charge on the basis that it was his condominium unit, thus his bedroom, and he was entitled to a reasonable expectation of privacy. The Supreme Court of Canada has previously held that “it may be presumed unless the contrary is shown in a particular case that information about what happens inside the home is regarded by the occupants as private. Such an expectation is rooted in the ancient law of trespass and finds its modern justification in the intimacies of personal and family life.”

Both the trial judge in the Ontario Court of justice and the first appeal judge in the Superior Court found that the police had violated the owner’s Charter rights against improper search and seizure. They excluded the evidence from the camera and the charge was dismissed.

We have written previously about how refreshing it is that the Ontario Court of Appeal appears to be demonstrating a lot of common sense these days. There was no case that was directly on point with this situation, so to some extent they had to make a novel ruling of law. Sensibly, they determined that the true interest of privacy here was that of the renters not of the owner.

There may be situations in which an owner rents out a unit but still has a reasonable expectation of privacy. To determine that the courts look at two aspects of privacy – whether the owner can credibly claim that he had a subjective expectation privacy, but also whether objectively that expectation of privacy was reasonable in the circumstances.

In this case, as in many cases of this sort, the accused did not testify on his own behalf. That makes it tougher to show subjective expectations, but in a few situations, it has been inferred from other evidence. Here, not only had the owner rented the unit out, but he very seldom stayed in the unit or used it for meals. His primary objective in owning it appeared to be to use it to generate income. In the absence of some other evidence that he expected privacy, such as a locked closet or storage room, there was no evidence that he had is subjective interest in privacy.

Even if a subjective interesting privacy could be inferred without the owner’s own testimony that expectation must still be objectively reasonable.

As the court points out, objective reasonableness also requires a multi faceted consideration of the particular facts of an individual situation. There is no one-size-fits-all test. The lower court judges had focused on the fact that the accused had kept a key to the unit even while it was rented out. The Court of Appeal however use their common sense to point out that almost all landlords of any sort of rental property keep a key while it is rented. That does not mean that they have a right of entry, or an expectation of privacy. The court did point out that an expectation of privacy might be reasonable where the accommodation is shared or the unit includes personal effects of the owner which affect his dignity, integrity and autonomy.

The Court of Appeal does not stop there. They contrast the owner’s interests with those of the tenant. They emphasize that the tenant was the one entitled to a reasonable expectation of privacy, and the owner had no overlapping or shared privacy expectation. The owner had no privacy expectation at all. A reasonable person in the owner’s shoes would not be surprised that the renter would call the police, or that the police would investigate. Recognizing a separate expectation of privacy for the owner would negate the tenants expectation of privacy and make it all but impossible for the police or the courts to enforce the tenants’ interests.

The court then considered the fact that the information on the camera was not observed until the police obtained a warrant. They agreed with the police that taking the camera to the station to preserve the evidence was reasonable and did not require a warrant.

THE RESULT

The Court of Appeal overturned the acquittal, substituted a conviction, and sent the accused off to be sentenced.

TAKEAWAYS

  • You have rights to dignity, integrity and autonomy
  • Your privacy is important and you are entitled to have it respected as recognition of your rights
  • The situations in which your rights will be recognized are fact driven
  • Although you may enforce your rights, either by asking the police to take criminal action or through a civil action, you must also respect the privacy rights of others
  • If you are accused of a criminal offence such as voyeurism, or are sued for breach of privacy, you must be prepared to show that:
    • on the facts of the case, and applying common sense, you retained a privacy interest in the situation
    • that your privacy interest was objectively reasonable, and
    • that it fairly balances with the privacy interests of others
  • This would be very difficult to do without your testimony
  • Although the courts will infer the subjective expectation in some obvious situations, it is unlikely
  • The judge might not say it in their reasons, but along with other factors but they will apply an “ick” factor against creeps
  • Just like anywhere else, some Airbnb hosts are creeps, so be careful out there

WHAT WEILERS LAW CAN DO FOR YOU

Weilers Law does not include a criminal law practice at this time. We have excellent relationships with some of the best criminal law minds in Thunder Bay and elsewhere. We can assist a lawyer representing you on criminal matters, particularly if the criminal matter overlaps with a civil litigation or estate litigation issue. If you are sued based on allegations that you breached someone else’s privacy or believe that you have a right to bring a claim for breach of privacy against someone else, our litigation lawyers have the experience and knowledge to represent you.

We also regularly advise clients, particularly in the areas of employment and labour law, on privacy policies and privacy issues to avoid breaches of privacy before they occur.

If you need legal assistance to protect your privacy, believe that your privacy has been violated, are accused of violating another’s privacy, or want some preventative advice, feel free to give us a call. Weilers Law may be the right lawyers for you.