R v Truong, 2021 ABQB 34

Court of Queen’s Bench of Alberta Citation: R v Truong, 2021 ABQB 34 Date: 20210113 Docket: 180460073Q1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Jimmy Truong Applicant _______________________________________________________ Ruling on Voir Dire #2 (Application to Exclude Evidence under

Section 8 of the Charter ) Honourable Mr. Justice N. Devlin _______________________________________________________ Introduction [ 1 ] The accused, Jimmy Truong (“Mr. Truong”), is charged with three counts of first-degree murder in relation to two shootings, one in Edmonton and one in Calgary. The Crown has indicted these matters jointly as it alleges that they are united by a series of similar facts and common players.

In the days following each of these shootings, the respective police forces investigating them attended at two hotels seeking information. [ 2 ] In both cases, the officers did what homicide investigators do, and asked questions. Hotel staff answered those questions. They also provided real evidence documenting that Mr. Truong had stayed with them on dates proximate to the killings. The materials voluntarily handed to the police principally comprised check-in documents and video recordings of Mr. Truong’s movements on the premises.

Given the willingness of the hotel proprietors to cooperate with the police, production orders were not sought for any of these materials. [ 3 ] The accused has brought an application under

section 8 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the

Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] complaining that this evidence gathering process infringed his reasonable expectation of privacy and should result in the evidence being excluded. For the reasons that follow, this application is dismissed. Facts [ 4 ] On September 20, 2016, Cuc Lung and Quang Tran were shot and killed in Calgary, Alberta. In the course of their investigation, Calgary police received information that Mr. Truong, along with his suspected co-conspirators, had visited Banff following the killings. Specifically, they learned that Mr.

Truong and the other suspects had stayed at the Fairmont Banff Springs Hotel (the “Fairmont Hotel”) from September 24 to September 25, 2016. [ 5 ] On October 25, 2016, the police attended the Fairmont Hotel and met with staff members Kris Joosten and Ravroop Gill. The police specifically requested information about Mr. Truong by name. In response, Ms. Gill provided information from the hotel’s business records. This material included a screenshot of Mr. Truong’s reservation, the hotel stay invoice, and valet tags. Mr.

Joosten allowed the police to observe the recorded CCTV footage from all video-monitored areas of the Fairmont Hotel for the duration of Mr. Truong’s stay. The police subsequently asked for, and were given, a copy of this CCTV footage, which showed the front entrance and lobby. [ 6 ] On October 7, 2016, Phu Phan was shot and killed in Edmonton, Alberta. On October 20, 2016, the Edmonton Police Service canvassed the St. Albert Inn & Suites (the “St. Albert Inn”) for potential information relating to this crime. In response to police inquiries, staff from the St. Albert Inn confirmed that Mr.

Truong had stayed there in the days immediately preceding the murder, having booked two rooms for a total of four nights. Hotel staff provided the police with copies of the registration form, the photocopy of Mr. Truong’s driver’s license taken to confirm his identity when he registered, and the hotel invoice. The police also met with Andrew MacLeod, the front desk supervisor. Mr. Macleod played recorded CCTV footage for the police, from the hotel security system, covering the period of Mr. Truong’s stay from October 4–7, 2016. [1] The St.

Albert Inn later provided police with a copy of the CCTV footage. [ 7 ] The footage given to police showed activity at the hotel front entrance and lobby, as well as in the hallway of the 3 rd floor on which Mr. Truong stayed. It is agreed that guest floor hallways were accessible to the public, but required guests to swipe their key cards for access after 10 PM. On May 11, 2017, the Calgary Police Service requested a copy of the St. Albert Inn CCTV footage, which the Edmonton police provided to them.

Issues and the parties’ positions [ 8 ] The question in this case is whether a hotel guest has a reasonable expectation of privacy in the records detailing his stay and the video security recordings made by those establishments during that time period. [ 9 ] Mr. Truong argues that he had a reasonable expectation of privacy over all the evidence that the police gathered from the two hotels. He submits that, by gathering this evidence without prior judicial authorization, the police infringed his right to be secure against unreasonable search or seizure under

section 8 of the Charter . His argument centres on what he alleges is the significant personal and biographical information revealed by the hotels, including the date and manner in which the reservations were made, the number of rooms reserved, his time of check-in and check-out, the credit card he used to pay for the bookings, and the make, model, colour, and license plate of the vehicles associated to his rooms.

He also relies on the hotels’ privacy policies regarding personal data, arguing that these provide him with an expectation that information relating to his stays would not be shared with police except through court order. [ 10 ] In particular, Mr. Truong attempts to analogize the hotel documents to the IP addresses provided to police in R v Spencer , 2014 SCC 43 . Relying on the Supreme Court’s evolving jurisprudence on informational disclosures from R v Tessling , 2004 SCC 67 [ Tessling ] to R v Marakah , 2017 SCC 59 [ Marakah ], he argues that police are effectively precluded by

section 8 from asking these businesses for information about their dealings with a suspect without a production order. [ 11 ] In respect of the CCTV footage, Mr. Truong argues that video recordings of hotel lobbies and hallways attract an expectation of privacy similar to that found in respect of multi-unit dwellings in R v Sandhu , 2018 ABQB 112 [ Sandhu ] and R v Latimer , 2020 BCSC 488 [ Latimer ]. As the video recordings from the St. Albert Inn permitted the police to reconstruct Mr.

Truong’s comings-and- goings, he argues that the acquisition of this sort of personal information infringes his privacy interests and should require a warrant. On these bases, Mr. Truong argues that all this information was unconstitutionally obtained. [ 12 ] The Crown takes the position that Mr. Truong did not have a reasonable expectation of privacy in any of the evidence gathered from the hotels, that those commercial establishments were entitled to voluntarily cooperate with a police investigation concerning activities on their premises, and that no Charter infringement occurred.

The Crown relies on this Court’s decision in R v Devloo , 2015 ABQB 345 [ Devloo ] and that of Joyal, CJQB in R v Baldovi , 2016 MBQB 221 [ Baldovi ], both of which have held that the police do not require a production order to make inquiries of hoteliers about their guests and take possession of registration and stay records if those are voluntarily provided. [ 13 ] In respect of the video footage, the Crown argues that hotel entryways and lobbies are notoriously public and that no person could have a reasonable expectation of not being observed, and potentially recorded, in those settings.

It also takes the position that hotel guest floor hallways are effectively public spaces and do not attract the expectation of privacy that has been extended to hallways in private condominium buildings. [ 14 ] Argument on exclusion under section 24(2) of the Charter was reserved pending my decision on whether any infringement had been established.

Legal framework [ 15 ] Existence of a reasonable expectation of privacy is determined on the totality of the circumstances. This analysis takes place under four broad headings: R v Cole , 2012 SCC 53 at para 40 ; Spencer at para 18 ; Marakah at para 11 . These are: 1. What was the subject matter of the alleged search? 2. Did the claimant have a direct interest in the subject matter? 3. Did the claimant have a subjective expectation of privacy in the subject matter? 4.

If so, was the claimant's subjective expectation of privacy objectively reasonable? [ 16 ] In determining whether an expectation of privacy is objectively reasonable, courts refer to a number of factors: Tessling at para 32 and Marakah at para 24 . These considerations include: (

a) The place where the alleged “search” occurred; (

b) Whether the subject matter was in public view; (

c) Whether the subject matter had been abandoned; (

d) Whether the information was already in the hands of third parties. If so, whether it was subject to an obligation of confidentiality; (

e) Whether the police technique was intrusive in relation to the privacy interest; (

f) Whether the use of the police evidence gathering technique was itself objectively unreasonable; and (

g) Whether the subject matter exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature. [ 17 ] Against this backdrop, I will first discuss the business records and documents provided by the Fairmont Hotel and St. Albert Inn (collectively, the “Hotel Documents”), and then consider the CCTV footage that was provided, as these raise different privacy concerns. Analysis Documentary evidence of the hotel stays [ 18 ] Characterizing the subject matter of the search is essential to accurately analysing the privacy rights being claimed: Tessling at paras 34 and 58 .

This process involves asking the question: what were the police were really after? ( Marakah at para 15 ). In other words, when defining the subject matter of the search, the Court must look not only at the items seized, but at the broader informational value of those items, and what they reveal about the applicant: Spencer para 26 . [ 19 ] Mr.

Truong submits that the Hotel Documents provide significant insight into his activities, choices, and friends, making it highly personal and giving him a significant direct interest in the subject matter of the police inquiries. [ 20 ] The Crown answers that the subject matter of the search is better viewed as the business records of the commercial transactions between the Applicant and the hotels, which at most aided the police in ascertaining Mr. Truong’s whereabouts in general terms on certain dates. [ 21 ] I find that the subject matter of the Hotel Document seizure was the basic parameters of Mr.

Truong’s stay. Contrary to what was argued by his counsel, the Hotel Documents on their own do not go so far as to provide detailed information about Mr. Truong’s activities, lifestyle choices, and close associations. Rather, in obtaining the Hotel Documents, what the police truly sought was a confirmation of the fact that Mr. Truong had stayed at the Fairmont Hotel and St. Albert Inn and, to a limited extent, who he travelled with. The claimant’s subjective expectation of privacy in the subject matter [ 22 ] Establishing a subjective expectation of privacy is not a high hurdle. Mr.

Truong did not testify on the Charter motion, but argued that a subjective expectation is often presumed in the applicant’s favour, particularly in respect of searches implicating one’s home: R v Patrick , 2009 SCC 17 at para 37 . A hotel room is a surrogate home, but the commercial contract for its use does not reveal much (if anything) about the private activities taking place within it, anymore than a lease or title document shines a light through the walls of a private residence.

Thus, a meaningful subjective expectation of privacy cannot so easily be presumed here. [ 23 ] That said, there is some obvious privacy interest in one’s whereabouts at night, and in credit card information. On those bases, I am prepared to presume some modest subjective expectation of privacy in the Hotel Documents. [ 24 ] Mr. Truong further argued that the Privacy Policy statements of both the Fairmont Hotel and St. Albert Inn support his subjective expectation.

The relevant clause of the Fairmont Hotel policy states that personal data may be shared with local authorities if “required by law or as part of an inquiry.” The corresponding provision in the St. Albert Inn’s privacy policy states that it “guarantees not to disclose personal information to any third parties & affiliated companies.”

[25] In my view, neither of these two statements much assists Mr. Truong. First, there is no evidence that Mr. Truong sought out,read, or placed any reliance on the contents of these policies. Second, the Fairmont Hotels policy expressly provides that informationgathered in relation to a guest’s stay may be shared with authorities “as part of an inquiry”. An inquiry is precisely what occurred whenthe police attended the Fairmont Hotel on October 25, 2016 and asked about Mr. Truong by name.

If he had any subjective privacyexpectation based on the contents of this policy, the Fairmont Hotel’s cooperation with police was consistent with it. [26] Third, the St. Albert Inn’s policy is quite vague and general in nature. The phrase “third parties & affiliated companies” has astrongly commercial flavour, suggesting that the non-disclosure being promised is in regards to the sale or provision of this informationto other businesses. I do not read it as clearly promising that the staff at the St.

Albert Inn would not provide information about its gueststo law enforcement. [27] Fourth, it is important not to conflate Mr. Truong’s transactions with the hotels with his activities inside the rooms that he wasrenting. The transactions revealed by the Hotel Documents occurred in public view. Driving to the hotels, checking in, paying, andchecking out – none of those took place within the homelike sphere of Mr. Truong’s room. Therefore, it is not reasonable to infer that hewould expect the basic facts of his commercial relationship with the hotels to be held totally confidential.

To do so would render thecriterion of subjective expectation meaningless: R v Chehil, 2009 NSCA 111 at para 38 [Chehill]. See also, R v Telfer & Crossman,2019 MBQB 12 at para 55 [Telfer and Crossman]. For all these reasons, I find that Mr. Truong may be presumed to have had a modestsubjective expectation of privacy in the Hotel Documents. [28] The heart of the

section 8 analysis, however, lies in examining whether an objectively reasonable expectation of privacyexisted in the information provided to the police: Baldovi at para 62 and R v Edwards, (SCC) at para 45 [Edwards]. Does an objectively reasonable expectation of privacy exist in the Hotel Documents? [29] The assessment of an objective expectation of privacy is undertaken through the categories of considerations identified by theSupreme Court of Canada in Tessling and Marakah, as enumerated above.

The place where the alleged “search” occurred [30] The impugned search took place in the hotels’ own business records. The police attended and accessed the Hotel Documentswith approval from staff at each hotel. This had no impact on Mr. Truong’s territorial privacy interests. While

section 8 protects people,not places, the place where the search occurs greatly influences the reasonableness of the individual’s expectation: Tessling at para 44.This factor does not support finding a privacy interest, particularly in relations to items of real evidence belonging to the hotels. It is lessinfluential in relation to the informational aspects of that material. Whether the subject matter was in public view [31] The records provided to the police were not in plain view.

Rather they were held within the respective hotels’ private offices.However, the transactions they recorded – checking in to a hotel – were public in nature, in so far as the behaviour in question could beeasily observed by many other members of the public. The informational content of these records largely reflects arrivals and departuresfrom public places. This is equally true for the parking details revealed by the Hotel Documents. As Binnie, J adroitly expressed, “aperson can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a

section of the public, orabandons in a public place”: Tessling at para 40. [32] Certain informational content of the Hotel Documents was not in private view, such as Mr. Truong’s credit card number,phone number, and driver’s license information. This factor provides a modest basis for an objective expectation of privacy. Whether the subject matter had been abandoned [33] Mr. Truong voluntarily provided the information contained in the Hotel Documents for the purposes of carrying out businesstransactions with the Fairmont Hotel and St. Albert Inn.

However, the Supreme Court of Canada has emphasized that “a person does notlose control of information for the purposes of s. 8 simply because another person possesses it or can access it”: Marakah at para 41.Accordingly, the subject matter of the search was not abandoned. Whether the information was already in the hands of third parties. If so, whether it was subject to an obligation of confidentiality [34] There is no dispute that the Hotel Documents were in the hands of third parties – namely, the Fairmont Hotel and St. AlbertInn.

For the reasons discussed under the ambit of the subjective expectations operative in this case, the hotels’ privacy policies did notcreate an obligation of confidentiality over the information provided during check-in. [35] At this stage, the provincial privacy legislation applicable to this situation factors into the analysis.

Section 20 of the of theAlberta Personal Information Protection Act, SA 2003, c P-6.5 [PIPA] provides as follows: Disclosure without consent 20 An organization may disclose personal information about an individual without the consent of the individual but only if one ormore of the following are applicable: ... (

f) the disclosure of the information is to a public body or a law enforcement agency in Canada to assist in an investigation (

i) undertaken with a view to a law enforcement proceeding, or (ii) from which a law enforcement proceeding is likely to result;

[36] Therefore, to the extent that privacy policies are to be read to be consonant with the provisions of PIPA, disclosure to thepolice is the default assumption. [37] While Mr. Truong suggests that this language could render PIPA inconsistent with the Charter, and of no force, noconstitutional challenge was brought in this case. Moreover, privacy legislation of this sort does not purport to create police authority, butmerely empowers and permits private, individual actions relating to information.

I can see no reasons why permission under PIPA toprovide materials to the police could not co-exist with a constitutional requirement that the police obtain judicial pre-authorization toreceive them. In this case, PIPA is relevant only to contextualize the understanding and obligations that existed between Mr. Truong andthe hotels, to the limited extent that is relevant within the

section 8 analysis. [38] It is worth noting, however, that if privacy expectations relating to information are “normative” in nature (see R v Mills, 2019SCC 22 at paras 21 and 26 [Mills], provincial and federal privacy legislation can properly be viewed as one expression of society’snormative expectations surrounding informational disclosure. To be clear, I do not find that PIPA expands or provides police rights ofsearch and seizure, rather that its terms are one data point in the contextual assessment of whether the privacy claim being made isobjectively reasonable.

In this case, PIPA expressly permits disclosure in response to law enforcement inquiries. [39] Overall, the information in this case came from a third party with no broad relationship of confidentiality to Mr. Truong. Thisweighs against finding an enforceable privacy interest. Whether the police technique was intrusive in relation to the privacy interest [40] The police gathered the Hotel Documents by asking for them. Through questioning of various hotel employees at thepreliminary inquiry, Mr.

Truong attempted to demonstrate that their cooperation was rendered somehow less than voluntary by the factthat it was the police who sought the information. I do not accept that

interpretation of the evidence. The police are entitled, indeedmandated, to ask questions and seek information from potential witnesses when investigating crimes. The fact that citizens may feel amoral or social obligation to cooperate with the police does not tarnish their investigative success, and does not negatively colour policeconduct as intrusive or disrespectful of privacy rights. [41] The essential thrust of Mr. Truong’s application, at least in respect of the Hotel Documents, is that Spencer and Marakahhave ushered in a new

section 8 regime under which police are constrained in the questions they may ask, and the answers they mayreceive, from willing third-party witnesses.

As skilfully as this extension of the Supreme Court’s information-privacy jurisprudence waspresented, I cannot agree that these, or related, cases have created what would functionally become a right not to be investigated. [42] Rather, the Supreme Court’s recent jurisprudence on informational privacy teaches that the mere fact that information is nowoften inevitably in the hands of third parties does not necessarily obviate a person’s reasonable expectation of privacy over it.

Theinstances in which this principle has been deployed notably involve contexts of an inherently private nature, such as person-to-personelectronic conversations. I do not find it principled to extend this concept to ordinary commercial transactions, or quotidian interactionsbetween a suspect and another citizen, such that the police asking for, and receiving, information from third-party witnesses wouldengage

section 8 scrutiny. There is no need to begin a descent down the very slippery slope towards requiring police to have judicialpreauthorization before asking witnesses questions and obtaining relevant information. The Charter exists to protect individual privacy,not to obstruct proper police investigations. [43] Therefore, the nature of the information gathering technique used by the police weighs against Mr. Truong’s privacy claim.

Whether the use of the police evidence gathering technique was itself objectively unreasonable [44] There were no dirty tricks, intimidation, or reprehensible tactics employed by the police in obtaining the information at issue.Investigators appear to have politely asked questions and received answers through open, willing cooperation from members of thepublic. Nothing in their investigative conduct weighs in favour of finding an infringement of privacy.

Whether the subject matter exposed any intimate details of the respondent’s lifestyle, or information of a biographical nature [45] Privacy interests increase as the subject matter of a search comes closer to revealing the most personal facets of our existence.In R v Plant, (SCC), [1993] 3 SCR 281 at 293 [Plant], Sopinka, J expressed the concept in these terms: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect abiographical core of personal information which individuals in a free and democratic society would wish to maintain and control fromdissemination to the state.

This would include information which tends to reveal intimate details of the lifestyle and personal choices ofthe individual. [46] More recently, in Chehil at para 50, the Nova Scotia Court of Appeal Court said this: Not all details about a person’s lifestyle and personal choices are constitutionally protected. The use of the modifier “intimate” requiresthat the information be deeply personal or inherently private.

As discussed at para. 12 above, the categories of protected information mayextend beyond the “biographical core” classification to “specific and meaningful information intended to be private and concealed in anenclosed space”. Examples of the broader category include the state’s electronic taping of private communications; videotaping events ina private hotel room; and the seizure by state agents of a blood sample. [47] The Hotel Documents do not reveal core biographical information. Some of the materials, such as Mr.

Truong’s credit cardnumber and driver’s license, attract higher privacy protection than his check-in and check-out times or the make and colour of his motorvehicle. Even so, I am not persuaded that this protection rises to the level described in Plant and Chehil. None of the Hotel Documentsand information derived therefrom reveal intimate details about Mr. Truong’s lifestyle and personal choices. [48] At most, the Hotel Documents reveal the times of his arrival at a business, the financial details of his purchase, and, to a

limited extent, with whom he may have been travelling. These facts are far removed from “core biographical” information as to what he did and said in the rooms he rented, the reasons for his trips, the nature of his relationships with his fellow travelers, and the possessions he brought with him. None of that core information is revealed. This leads me to reach the same conclusion as Hunt-McDonald, J in Devloo at para 206 , that: The information disclosed to the CPS only disclosed that Mr. Devloo stayed at the Sheraton and what room he was in.

Again, it did not reveal any kind of information that revealed personal details or personal lifestyle choices. [ 49 ] The more personal information turned over by the hotels – namely the driver’s license and credit card information – also reveal very little about Mr. Truong’s lifestyle, activities, or intimate personal characteristics. Moreover, the driver’s license information would have been available to police directly with the press of a few buttons. Overall, therefore, this factor weighs against finding a privacy interest.

Conclusion regarding the Hotel Documents [ 50 ] In the totality of the circumstances, I find that there is no objectively reasonable expectation of privacy in the Hotel Documents, and that the police did not infringe

section 8 by asking the questions which elicited that information. My conclusion in this regard follows, and is supported by, the earlier decision of this Court in Devloo , and the decision in Baldovi , both of which considered very similar factual disclosures by hotels in response to warrantless police inquiries. In Baldovi , Joyal, CJQB made the following finding, at paras 63–65, which I agree with and adopt: [63] In examining whether there existed objectively a reasonable expectation of privacy in the information provided to the police, I have considered carefully the factors outlined in Tessling .

As a result of my consideration, I am able to make the following findings on the basis of the undisputed facts:

(1) There was no intrusion onto the personal property of the accused to obtain the information;

(2) The information was in public view: the accused proceeded through security at airports, boarded commercial flights and attended to hotels (all of which occurred in public and in public view);

(3) The information was not abandoned by the accused;

(4) The information was already in the hands of third parties: CATSA, WestJet, the Victoria Inn and Passport Canada;

(5) The provision of information to the police by third parties cannot be said to be intrusive;

(6) No “surveillance technology” was used in obtaining the information; and

(7) The search did not expose any intimate details of the accused’s lifestyle and it was not biographical in nature. [64] The information given to the police reveals only records of transactions with third parties, much like the situations in Chehil and Devloo , supra. The activities of the accused (confirmed in the records) were conducted in public.

I am not persuaded that she can be said to have had a reasonable expectation of privacy in the information. [65] Having found that the accused did not have a reasonable expectation of privacy in the information received from CATSA, WestJet, the Victoria Inn and Passport Canada, s. 8 of the Charter was not engaged when the police obtained the information. [ 51 ] The conclusion in Devloo was recently adopted and applied in Telfer and Crossman , and is also consistent with R v Tan , 2010 BCSC 1948 and Chehil . Therefore, I conclude that asking for, and being given, records reflecting Mr.

Truong’s commercial dealings with the hotels in question, did not engage or infringe his reasonable expectations of privacy. Hotel CCTV footage [ 52 ] Mr. Truong also objects to the police obtaining copies of the hotels’ video surveillance footage covering their entryways, lobbies and guest floors, insofar as they depicted his activities in these areas. CCTV coverage of the different areas of the hotels attracts different privacy considerations. I will first deal with the recordings covering the hotel lobbies.

Hotel lobby and entrance area recordings [ 53 ] It is axiomatic that one does not have a reasonable expectation of privacy over being seen in a public place: Tessling at para 40 . While not all forms of observation, particularly those which are technologically or physically intrusive, are expected or condoned even in public, one’s basic presence in public is not concordant with an expectation of privacy: R v Jarvis , 2019 SCC 10 [ Jarvis ] . I will return to this distinction between being seen and being subjected to surveillance later in these reasons. [ 54 ] In regards to the lobby videos, however, Mr.

Truong did not benefit from any of the Edwards factors suggestive of a privacy right. He was not physically impacted by the police acquisition of the video in any way, he had no possession, control, or ownership of the lobby, his historical right to use the property was no different than that of any other citizen, and he had zero ability to regulate access to, and use of, these spaces. [ 55 ] Equally, none of the factors enumerated in Tessling and Marakah assist his claim.

He was recorded in a notoriously public location, in full public view, by a third party who owed him no obligation of confidentiality in respect of these observations, which themselves comprised an ordinary and unobtrusive recording, similar to those considered by the British Colombia Supreme Court in R v Law , 2017 BCSC 1241 at para 86 . The record in this case demonstrates that the video recordings of the hotel public areas captured a technologically non-intrusive view, similar to what any member of the public present in that space would have seen.

[56] There is no evidence that Mr. Truong subjectively expected that his entry, exit, and activities within the fully public areas ofeither hotel would go unseen or unmonitored. Even if he held such an expectation, it would not be objectively reasonable. Individualsknow, and indeed expect, that they will be seen and likely recorded coming and going from a public business. Simply put, hotel lobbiesand entryways are broadly analogous to shopping malls, office tower concourses, and airport terminals.

In each of these locations,members of the public enjoy an implied invitation to attend for legitimate purposes, and the spaces are effectively open parts of thepublic realm. There is no normative basis for requiring law enforcement to obtain judicial preauthorization before they ask to see andpossess CCTV recordings of such spaces made by their respective owners. [57] For all these reasons, I find that Mr. Truong did not have a reasonable expectation of privacy in regards to the lobby videos. Guest floor video recordings [58] The CCTV recording captured on the St.

Albert Inn’s guest floors attracts different considerations, and its disclosure to policerequires closer scrutiny. Whereas the lobby and entryways are open to the general public, the guest floors are, to a limited extent, moreprivate. [59] Relying on the principles articulated by the Ontario Court of Appeal in R v White, 2015 ONCA 508 [White], this Court’sdecision in Sandhu, and the recent decisions of the British Columbia Supreme Court in Latimer and Kim, 2020 BCSC 1064 [Kim], Mr.Truong argues that guest floor hallways in hotels should be treated similarly to analogous spaces in multiunit residential dwellings.

TheCrown responds that hotel hallways are markedly different than private residential spaces. It points out that these are thoroughfares forguests and other members of the public, have high degrees of open access, and are presided over by the hotel owner who has anobligation to maintain security. The Crown also disputes that the footage reveals core biographical information, arguing that it capturesonly scant temporal details regarding Mr. Truong’s short stay at a “public, transitory” place.

The Crown supports its position byreference to this Court’s decision in R v Tran & Tim, (11 March 2013), Edmonton 111358156Q1 (ABQB) per Belzil J, R v Wilson, 2017BCCA 327, leave ref’d (SCC), Yu, and R v Hassan, 2017 ONSC 233 [Hassan]. Current state of the law [60] The nature and extent of privacy rights in shared, semi-private spaces is an evolving area of law. Indeed, a good deal of thatevolution post-dates the impugned investigative steps in this case. As the law is coming into shape, however, certain principles can nowbe discerned.

There is, for instance, a growing consensus that residents of multi-unit buildings often have a low but extant expectation ofprivacy in restricted-access common areas: Yu at paras 81–94; White at para 48; Sandhu, at paras 37–48. The existence and extent ofthis privacy expectation will vary with, and fall to be determined by, the specific factual circumstances in each case. As Antonio, Jsuccinctly described in Sandhu at para 32: ...this explains why the precedents on hallway cameras have led to varied results on standing: each presents a unique combination ofcircumstances that influence the privacy analysis.

The precedents are helpful in understanding what features have held significance todifferent courts at different times. [61] There is also growing authority for the sensible proposition that condominium boards and rental building management havethe authority to consent to police entries into the hallways and other shared spaces of those buildings for investigative purposes.

Thispoint was well-articulated by Tulloch, JA in Yu at paras 90–92: ...given the context in which the condominium operated, the appellants would have reasonably expected that the board, and by extension,property management, could consent to police entry. The condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation onbehalf of the owners: Condominium Act, 1998, S.O. 1998, c. 19, ss. 17(1), 17(2). The board is elected by the owners to manage theseaffairs in their best interests: ss. 27-28.

This statutory duty can be understood as conferring a responsibility and authority on the board toact as the decision maker for the owners as a collective. The condominium board and, by extension, property management, were entrusted with security of the building and the residents.

Theappellants would have reasonably expected that the property manager could consent to police entry into the building and its hallwaysand, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building. [62] On the other end of the spectrum, covert installation of surveillance cameras by the police, with or without buildingmanagement approval, has been found to infringe reasonable expectations of privacy and require judicial preauthorization: Sandhu atpara 45, Yu at paras 120ff; Hassan at para 24. [63] Between these poles, there remains an unresolved question as to whether police may request and take possession of abuilding’s own, non-covert CCTV footage of hallway spaces through the consent of condominium boards or building management.

Trialcourts in British Colombia have recently held that such consent does not obviate the residents’ privacy interests: Kim at para 41, Latimerat para 190. The decision of the British Colombia Court of Appeal in Wilson upheld the opposite conclusion. There is no bindingauthority on point, particularly in the context of a private business, such as hotel. Subject matter of the alleged search [64] The Crown maintained that the subject matter of the alleged search was nothing more than CCTV footage showing Mr.Truong in certain places at certain times.

It denied that this constituted a form of surveillance because “no camera or video recordingswere following him around the hotels.” Counsel for Mr. Truong, on the other hand, claimed that the subject matter of the search was acomplete record of surveillance for the duration of Mr. Truong’s stay and information about his activities and guests in his hotel room.

[65] After reviewing the full record, I find that the information gleaned from the video footage in this case provided relatively littleinsight into Mr. Truong’s private affairs and activities. It is nowhere comparable to what would be learned from even the most cursorywalk-through of a home, much less examination of a smartphone. It mostly reveals the timeline of Mr. Truong’s movements and, to alimited extent, his association with others (which was already revealed to some degree through the physical hotel registrationdocuments).

Unlike the video in Sandhu, no camera was trained on his doorway, and all the police were shown were images of himwalking up and down a hallway. I do not find that the state’s intrusion into Mr.

Truong’s sphere of personal privacy, through securing ofthe CCTV footage, was particularly significant in this case. [66] The fact that the police were able to interweave the information garnered from the CCTV with other facets of theirinvestigation to produce a fuller picture of the accused’s activity does not concomitantly increase the privacy interests of the informationcaptured by the video alone. [67] The subject matter of the search in this case was, therefore, some information about Mr.

Truong’s comings and goings fromhis hotel room, with whom he associated in that space, and, to a limited extent and in very general way, what activities he may haveparticipated in, based on his appearance and the items he carried. The breadth of the information sought falls short of the ‘blanketsurveillance’ characterization advanced by Mr. Truong, but slightly above the ‘mere snapshots of movements’ description urged by theCrown. The claimant’s interest in the subject matter [68] There is no dispute that Mr. Truong has a direct interest in the recordings that show him.

The claimant’s subjective expectation of privacy in the subject matter [69] Counsel for Mr. Truong relied on R v Wong, (SCC), [1990] 3 SCR 36 [Wong] and R v Duarte, (SCC), [1990] 1 SCR 30 [Duarte] to argue that the search occurred in relation to a substitute dwelling, again to argue that asubjective expectation of privacy may be presumed in this case, and that it is a strong one. However, decisions like Duarte and Wongoffer little assistance here, as each of those cases dealt with police gathering information from inside of the accused’s hotel room.

A hotelroom door demarcates the boundary between vastly different realms of privacy. Anyone with a passing familiarity with hotel hallwaysknows that one can rarely pass through one without encountering staff, guests, or other random strangers. Therefore, I cannot find thatMr. Truong had a subjective expectation to be unseen in the halls of the St. Albert Inn. On the other hand, I accept that Mr. Truongwould have had some subjective expectation that he was not under surveillance by state authorities in the space adjacent to his hotelroom.

Was his subjective expectation of privacy reasonable in the circumstances? [70] In Sandhu, Antonio, J concluded at para 40 that the apartment hallway in question was “more private than public”. In thecase of the hotel guest floor hallways at issue in this case, I come to the opposite factual conclusion: these spaces are more public thanprivate. [71] Unlike a condominium owner or apartment lessee, hotel guests have no permanent or abiding property interest in the commonspaces of a hotel.

They are quite literally “guests”, with a limited license to use the premises, and may be summarily evicted if hotelmanagement does not condone their behaviour (see e.g. R v Isaak-Hussen, 2017 ONSC 894). Their proprietary rights, in respect ofcommon spaces in particular, are much weaker than that of individuals who have residential interests in apartments or condominiumunits. [72] Indeed, as regards the hallways where the subject videos were captured, Mr.

Truong and other hotel guests enjoyed no moreor less property rights than any other member of the public who might attend that hallway pursuant to an implied invitation. Whilecontrol and access have enjoyed diminishing importance in the

section 8 analysis in recent years, and must be interpreted normativelyand not descriptively, this factor continues to be relevant. As the British Columbia Court of Appeal recently held in R v Pipping, 2020BCCA 104 at para 30: In my view, Edwards, Webster, White and Yu are consistent in their focus on the manner in which the control of public access to thecommon areas of a building is key to the assessment of a reasonable expectation of privacy. The focus is on "the ability to regulateaccess, including the right to admit or exclude others from the place": Edwards at para. 45 as cited in White at para. 31.

Other importantfactors include the exclusivity of occupation, the size of the building, whether property management or a condominium board hasconsented to the police presence, the breadth of the observations being made by the police, the ownership of the property, and thefrequency with which a particular area is used. [73] Hotel hallways are broadly shared quasi-public spaces. For most of the day, the guest floor hallways of the St Albert Inn arefully open to the public.

Individuals with no relationship (even as a guest) to the hotel are both able and expected to pass through thosehallways on their way to specific guest rooms or meeting areas. This unimpeded right of public access diminishes any reasonableexpectation of privacy: R v Laurin, (ON CA), [1997] OJ No 905 (CA) at para 38 [Laurin]; Yu at para 88. [74] Moreover, hotel hallways are inhabited by a great range of strangers on a near-constant basis, including house-keeping staff,maintenance staff, hotel security and management, food delivery personnel, and other guests and their visitors.

Hotel hallways aredifferent from analogous spaces in residential settings both on account of the number of strangers who one expects to find there and inrespect of the closeness of the relationship of those individuals to any specific guest. Namely, they are truly strangers, whereas in aresidential setting one may still expect people to know many of their neighbors, at least by sight.

While these factors will vary with thesize and nature of the residential building, both highlight ways in which hotel hallways are qualitatively different than hallways leadingto homes in private residential buildings. [75] The more public nature of the hotel hallways significantly reduces the reasonable expectation of privacy that any one personmay have in that space. By way of concrete example, a condominium owner would reasonably be surprised to find strangers lingering

outside their home and would be justified in inquiring what those people were doing there. By contrast, a hotel guest could scarcely besurprised by a stranger’s presence in the hallway outside his or her door and would be ill-situated to challenge anyone about theirpresence. This speaks volumes about the nature of the location. [76] The same characteristics also give rise to a converse expectation of security measures being present in hotels which are absentin a more home-like setting. Hotel guests are away from home, often travelling alone, with valuable possessions in tow.

They may wellfeel a greater sense of vulnerability than individuals in their own residences. Therefore, the inherently transient and stranger-filled natureof a hotel contributes to guests’ need and desire for a sense of security and security. Put simply, hotel guests may be presumed to place ahigher premium on safety than privacy in the areas adjacent to their rooms. This normative concern was given voice by the Court ofAppeal in Laurin, as adopted by MacDonald, J in R v Fleck, 2020 ABPC 116 at para 88, albeit in the more private context of aresidential dwelling.

The policy considerations relating to the reasonable expectation of privacy of an apartment dweller with respect to different kinds ofpolice surveillance in the common hallways may be varied. On the one hand, it may be thought that tenants would not wish policeofficers to have the same scope as neighbours and visitors with respect to making ordinary observations in the hallways. On the otherhand, it may be quite in the interests of tenants that they have this scope, if they are legitimately engaged in investigating a complaint, toenter and make observations in the hallway which are not intrusive.

"This rule gives tenants the benefit of much-needed police protectionin common hallways ..., while it preserves for them the privacy of their actual places of abode, their apartments": United States v.Holland, 755 F. 2d 253 at 256 (2nd Cir. 1985). [77] This concept has added force in the context of a hotel.

Guests want and expect security, and hotels are bound to provide it.Indeed, hotels have been found liable for failing to provide adequate security to guests in their public areas (Dufault v ExcelsiorMortgage Corp, [2002] AJ No 453 (QB), affm’d 2003 ABCA 147), and “there is a recognized implied warranty that a hotel will makeits premises reasonably safe for guests”: McChesnie v Tourond, [1995] MJ No 61 (QB) at para 16.

For this reason, hotels often havededicated, full-time security staff, and CCTV operating in common areas. [78] This contextual expectation of security in no way diminishes a guest’s expectation of privacy inside his or her room, andindeed may be seen as existing to enhance it. However, I find that it does alter the privacy balance for the quasi-public hallways outsidethose rooms.

In answering the normative question as to “when Canadians ought to expect privacy, given the applicable considerations”(Mills at para 20), I find that, in the setting of hotel hallways, the reasonable expectation tilts more towards observation of behaviourthan privacy. [79] Therefore, I find that the “search” in this case occurred in a space that was more public than private, where observation byboth strangers and hotel security would be commonplace and expected.

Following from that, the informational content of the seizedmaterial was, while not ‘abandoned’ in any meaningful sense, in public view. [80] The information at issue was already in the hands of a third party, namely the hotel. For the reasons discussed above, I do notfind that the hotel was under any obligation of confidentiality towards Mr. Truong, or anyone else, in regards to what its securitysurveillance system recorded.

Indeed, it would be curious if individuals who attended at the hotel on proper business, but without aspecific contractual relationship incorporating the hotels’ privacy policy, would enjoy different privacy rights vis-à-vis the securitysystem than registered guests. [81] And finally, on the point on confidentiality, practical sense tells us that if a hotel guest were accosted or mugged in thehallway outside their room, their first thought may well be that the event was captured by hotel security cameras and would be sharedwith the police to apprehend the offender.

This kind of reasonable expectation speaks powerfully against any obligation of privacy in thisinformation. [82] Therefore, while the inside of a person’s hotel room attracts the highest expectations of privacy (Wong), the hallways leadingto that space were, in the circumstances of this case, quasi-public areas. These hallways attract palpably different practical and normativeexpectations regarding privacy than do hallways in private residential multi-unit dwellings. [83] I conclude that Mr.

Truong did not have an objectively reasonable expectation of privacy over visual observations of hisactivities in the guest floor hallways at the St. Albert Inn. To the contrary, the reasonable expectation of a hotel guest in his shoes wouldbe that their activities in the mostly public areas of the hotel would be observed and, if relevant to security concerns, acted upon,including through disclosure to the police. [84] This conclusion does not, however, fully answer the privacy question in this case. While Mr.

Truong had no reasonableexpectation that his activities in the guest floor hallways would not be observed, and potentially reported-on to authorities, the Courtmust go on to consider whether there was a reasonable expectation that the hotel’s security CCTV would not become a form ofcontinuous, covert, state surveillance. Being seen versus being under surveillance [85] There are forms of state scrutiny that engage our normative expectations of privacy, even when done in quasi-public places.

Inparticular concerns arise from uses of technology that pierce beyond a citizen’s publicly-seen self and reveal core private facts.

Examplesto date have included dog-sniff searches, tracking devices, and thermal imaging: R v Kang-Brown, 2008 SCC 18, R v Wise, (SCC), [1992] 1 SCR 527, Tessling. [86] As the Supreme Court observed in Jarvis at para 137, there are limits to the manner and degree of state examination ofindividuals that is tolerable even when they stand in public spaces: While a person would not have a reasonable expectation of privacy in circumstances where they can be observed in passing or at arespectful distance (for example, passing on a sidewalk or conversing in a hallway), they may well have a reasonable expectation thattheir privacy will not be infringed in the same circumstances by being surreptitiously observed telescopically or at certain angles, a

fortiori where the image is recorded. [87] Similar concerns arise in respect of the growing network of private surveillance cameras that cover a vast proportion of ourpublic and quasi-public spaces. Unfettered state access to this mass of privately-stored, high-resolution, continuous motion recordings,carries the risk of ‘annihilating privacy’: Duarte at para 22.

Simply put, being observed, and even recorded, in a single-instance momentmay often not collide with our reasonable expectations of privacy, but being continuously scrutinized through technological means, aswe go about our daily lives, is not something that anyone reasonably expects or accepts.

There is a palpable and normatively significantdifference between being seen and being under surveillance: R v Jones 2017 SCC 60 at para 74 [Jones]; R v Telus, 2013 SCC 16 at para138 [Telus]. [88] Canadian law has long observed the fundamental difference between search and surveillance: R v Finlay (1985), (ON CA), 23 CCC (3d) 48 (ONCA) at para 66; Duarte at para 21. Indeed, the law of electronic interception (under

Part VI of theCriminal Code) exists precisely to recognize and respond to the enhanced intrusion to privacy occasioned by constant, covert, real-time“interception” of our personal activities. [89] The analogous concern over the state leveraging continuous private video surveillance has found expression in the earlyjurisprudence on the installation and acquisition of CCTV recordings from multi-unit dwellings. In Latimer, Ker, J sounded the alarmover the risk to privacy wrought by untrammeled state access to private surveillance video.

She stated at para 209: As the earlier jurisprudence from the Supreme Court of Canada recognized, being the subject of fleeting observations by others, on theone hand, and the state making a permanent electronic record back act our activities, on the other, are two very different things: R vWong, (SCC), [1990] 3 SCR 36 (cited in Kim at para 58). I acknowledge that it was not the state that made thepermanent electronic record of the activities here, but almost more insidiously, the state access private records in the absence of any sortof prior judicial authorization.

I see little difference between the states surreptitiously recording the activities as they did in Kim and aprivate corporation making recordings for one purpose of than simply handing them over to the state when asked. Either way, the state isobtained a permanent record of an individual’s activities in the absence of any prior judicial authorization.... [90] Antonio, J expressed a related concern in Sandhu, at paras 45–46, where the police had installed a camera covertly: This kind of surveillance represents an intrusion on privacy that is not objectively reasonable.

Recognizing that the camera did not recordsounds or conversations, the following observations from R v Duarte, (SCC), [1990] 1 SCR 30 at 48 and 44, arenonetheless instructive: I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and therisk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of adifferent order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, theother unreasonable.

They involve different risks to the individual and the body politic. In other words, the law recognizes that weinherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing tospeak to another human being, the risk of having a permanent electronic recording made of our words. [...] The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordingsof our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.

The veryefficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that ourcommunications will remain private.

A society which exposed us, at the whim of the state, to the risk of having a permanent electronicrecording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in whichprivacy no longer had any meaning. [...] [91] I share the concern that the ubiquity of private surveillance should not translate into a form of a state-accessible record of acitizen’s every movement, or worse, a parallel, unregulated mechanism of real-time surveillance. This is a core expression of ournormative expectation of privacy.

In practical terms, this means that there may be a reasonable expectation of privacy against the stateobtaining continuous, detailed, visual coverage of one’s activities, even where there is no equivalent expectation against beingincidentally seen, observed, or overheard in the course of those very same events. [92] The factors informing whether police acquisition of private surveillance footage will engage

section 8 parallel those ordinarilydeployed in a privacy analysis, with a focus on the features that capture the more intrusive nature of surveillance. These include, but willnot be limited to the: • nature of the location where the recordings took place; • nature of the activities being recorded; • specific security concerns prevalent in that setting; • statutory or contractual terms governing use of the space; • length of time the subject was recorded; • number of occasions on which the subject was recorded; • level of detail of the observations; and • whether the surveillance technology was overt or covert;

• whether the placement and/or use of the surveillance technology was requested by the police or adjusted in response to their needs; • whether police requested disclosure in advance of the events being recorded; • whether police sought disclosure of the surveillance video during the subject’s ongoing inhabitation of the space, or afterwards as a historical record of a point-in-time; and • whether the disclosure to police was on a single instance or ongoing. [ 93 ] All of these factors serve to answer the key privacy question: did the specific police acquisition of information take on the character of continuous, covert state surveillance without judicial authorization ?

Did the police acquisition of surveillance footage infringe

section 8 in this case? [ 94 ] I have carefully reviewed the entirety of the germane hallway camera footage obtained by police from the St. Albert Inn, as contained in Tab 3(

A) of Exhibit VD-2-3. Applying the enumerated criteria, I make the following findings of fact: • the space is a quasi-public passageway in a place of business; • the activity captured is Mr.

Truong walking up and down a hallway; • those movement are, however, to and from a homelike space, and reveal some limited information about the subject’s activities and associations; • there are moderately heightened security concerns and expectations in this space; • the statutory ( PIPA ) and contractual privacy policies governing this space are ambivalent or tend slightly towards disclosure of information; • the police obtained a total of 16 relevant sightings of the subject, lasting a few seconds each, over a three-day period; • three of the observations took place during the hours of restricted public access; [2] • the images are of moderate to low quality, and reveal nothing unseen to the naked eye; • CCTV recording was overt within the hotel; • the police played no role in the recording of the video; • the police disclosure request was after the fact, for historical recordings; and • this was a single-instance disclosure, but occurred when the police returned to seek a larger tranche of material after an initial look- see at what was on offer. [ 95 ] The most important of these factors are the quasi-public nature of the location, the relatively short period of time over which the subject was observed, and that none of the recordings were disclosed in real-time (or in a manner equivalent to it) or made for the police.

These factors, coupled with the limited nature of the personal information revealed by the recordings, satisfy me that the police acquisition of this information did not infringe the objective expectation of privacy in the circumstances. [ 96 ] Mr. Truong’s presence was transitory, there was an objective expectation of being observed by strangers in the hallways, and the information collected was not significantly intrusive to, or revelatory of, his private-life and lifestyle choices. The police conduct in obtaining this video by consent from the hotel was not unreasonable and did not infringe Mr.

Truong’s right to privacy under

section 8. [ 97 ] By way of contrast, the recordings Latimer , Kim , and Sandhu took place at locations that were more private in nature and governed by disclosure-restricting contractual terms. Moreover, the surveillance in those cases covered significant periods of time, allowing police to mine a greater depth of personal information from the video. In the Latimer /Kim investigation, for instance, police came to view videos at one of the subject condominium buildings on no fewer than 17 occasions, ultimately taking possession of 93 excerpts covering a seven-month period.

Their express interest included capturing “lifestyle surveillance” of their targets: Latimer at para 75 . Similarly, in Sandhu , the camera was aimed precisely at the subject’s apartment door (as it was installed by the police themselves) and ran continuously for 23 days. I make no comment on the standing and privacy interests found in Latimer and Kim , as the facts of those cases differ substantially from those before me. However, these facts make it readily apparent why the police acquisition of the video information in those cases raised privacy concerns with the courts.

Practical implications for law enforcement [ 98 ] Privately-held CCTV is a potential treasure-trove of valuable and reliable evidence for the police. It is to be expected that they will seek it out when it is available and germane to an investigation. In public and quasi-public spaces, there will rarely be any concern about police asking about the contents of recordings, asking to view them, or taking possession of copies. This is especially true in respect of single-instance events.

However, the closer police come to replicating the installation of their own covert technological surveillance systems, the more likely they will be to infringe protected expectations of privacy. This situation thus parallels what police may do with smartphones seized incident to arrest. Limited examinations are permissible, but deep-dives will usually require judicial preauthorization: R v Fearon , 2014 SCC 77 . [3] [ 99 ] This task of discernment is not conducive to bright-line rules. However, it is neither unfamiliar nor unworkable.

I n Telus , Moldaver, J emphasized, at paras 49, 67, and 68, that what matters for privacy-protection purposes is the true substantive nature of the

impugned investigative measure. I conclude that, as with the distinction between the production of a historical record of a message and state interception of messaging ( Telus , Jones ), where police acquisition of private CCTV recordings is “substantively equivalent” to direct covert police surveillance in spaces that are not fully public, more stringent privacy-protection standards will apply. Conclusion [ 100 ] In this case, I conclude that none of the information gathering by police from either the Fairmont Hotel or the St. Albert Inn infringed Mr. Truong’s right to be free of unreasonable search and seizure under

section 8 of the Charter . The application is dismissed. Heard on the 20 th day of November, 2020. Dated at the City of Calgary, Alberta this 13 th day of January, 2021. N.E. Devlin J.C.Q.B.A. Appearances: Derek Jugnauth and Robert Claus for the Applicant Michelle Kai and Brian Holtby QC for the Crown