R. v. Chau, 2019 BCPC 201

Citation: R. v. Chau 2019 BCPC 201 Date: 20190830 File No: 87833 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. OLIVER CHAU and ANH QUOC NGUYEN RULING ON VOIR DIRE #2 OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: J. Le Dressay Counsel for the Defendant Chau: W. Jessop Counsel for the Defendant Nguyen: C. Muldoon Place of Hearing: Kelowna, B.C. Date of Hearing: August 29, 2019 Date of Ruling: August 30, 2019 [ 1 ] This is an application by Mr. Oliver Chau for standing to attack three search warrants. These warrants were granted on October

12, October 20, and November 8, 2017, and they pertain to video surveillance footages for the lobby, third-floor hallway, and parkinggarage of 883 Academy Way Kelowna, BC (the “Building” hereafter). The three authorizations cover the period of September 28 toOctober 12, October 12 to 20, and then from October 27 to November 4, 2017. On reliance of those three warrants, the police reviewedvideo footages which purport to capture Mr.

Chau going in and out of apartment #311 on October 27, 28, 30, and November 1, 2, 2017.On Oct 27 there were footages of other people attending apartment #311, whom the police suspect to be associates of Mr. Chau in a drugtrafficking organization. There were other images of Mr. Chau in the parking garage as well as in the lobby of the Building. Mr. Jessop,on behalf of Mr. Chau, takes no issue with those latter images. [2] The onus in this case is on the applicant. Mr. Chau bears the burden of establishing that he ought to be given standing.

Thelegal test as to whether standing ought to be granted is stated as whether Mr. Chau has a reasonable expectation of privacy. See R. v.Edwards (SCC), [1996] 1 SCR 128. The cases also make it clear that this is not a binary concept. In other words, it isnot all or nothing. But rather, reasonable expectation of privacy falls on a continuum from non-existent, to great, and all points inbetween. A diminished expectation of privacy does not mean that there is none. On this application, the issue for the court to determineis whether Mr.

Chau has some reasonable expectation of privacy as to trigger the application of the Charter with respect to the videofootages that were obtained on reliance of the three authorizations. Background [3] Following a police investigation into the alleged drug trafficking activity of Mr. Nguyen, the police gathered information thatultimately led them to the third floor of the Building.

From speaking with the management of the Building and subsequent investigation,the police learned the following: • Fobs are required to gain access to the Building. • Garage door openers are used to access the underground parking area. • There are surveillance cameras on the property that are motion activated and footage is retained for approximately twoweeks depending on how much data is being recorded. • In the Building, there is a camera in the lobby which faces toward the main entrance and captures the stairwell and elevatoraccess areas. • There are two surveillance cameras on each of the four floors. • The cameras are situated roughly in the middle of the hallways near the elevator – one faces east and one faces west. • The surveillance videos will reveal to which apartment individuals are coming from and going to. • The surveillance system records on a 14-day loop and does not record beyond that. • The tenant list for the Building shows the tenants in Unit #311 as Donald Nguyen and Tony Chau. • The Building consists of four floors, with 56 units in total.

Legal framework [4] The framework within which the court should analyze whether a reasonable expectation of privacy exists is set out in R. v.Patrick, 2009 SCC 17 , [2009] 1 SCR 579. At para. 27, the court said: [27] On the facts of this case, we need to address: 1. What was the nature or subject matter of the evidence gathered by the police? 2. Did the appellant have a direct interest in the contents? 3. Did the appellant have a subjective expectation of privacy in the informational content of the garbage? 4. If so, was the expectation objectively reasonable?

In this respect, regard must be had to: a. the place where the alleged “search” occurred; in particular, did the police trespass on the appellant’s property and, if so, what is theimpact of such a finding on the privacy analysis? b. whether the informational content of the subject matter was in public view; c. whether the informational content of the subject matter had been abandoned; d. whether such information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality? e. whether the police technique was intrusive in relation to the privacy interest; f. whether the use of this evidence gathering technique was itself objectively unreasonable; g. whether the informational content exposed any intimate details of the appellant’s lifestyle, or information of a biographic nature.

What was the nature or subject matter gathered by the police?

[ 5 ] In this case, the evidence in question consists of a number of stills, which were gleaned from surveillance videos between the period of October 27 to November 2, 2017. They purport to show Mr. Chau going in and out of apartment #311. There are also footages of three other males going in and out of the apartment. These are all images captured from a surveillance system which was installed in the hallway of the third floor, near the elevator. [ 6 ] In my view, the nature of this evidence does not cry out as something for which one has the kind of expectation of privacy that would trigger Charter scrutiny.

These were images captured from a camera from a public spot, at least from the perspectives of people authorized to be in the Building. They depict images outside of the apartment. Mr. Chau was doing nothing other than going to and from the apartment. Being mindful that there is a territorial component and an informational component to a privacy analysis, I find that neither component cries out for Charter protection in this case. Territorially, this is in the hallway in a Building in which there are 56 units. On the third floor, there are 14 units.

At any given moment, any occupant from any of the other units on the third floor, or anyone who happens to be in the elevator stopping at the third floor, could have seen what was depicted by the images. Being careful not to equate there being a risk of someone seeing these images, with the conclusion that therefore no reasonable expectation of privacy exists, I must nevertheless take the public nature of these images into account when going through the Patrick analysis.

In relation to the informational component, the evidence in question comes nowhere near the type of material that touches on biographical or lifestyle information one sees in other cases. It is not the personal garbage of Mr. Chau containing personal data. It is not an image of him engaging in an intimate act with a partner. They are nothing more than him going to and from his apartment. Did Mr. Chau have a direct interest in the contents? [ 7 ] Mr. Le Dressay, on behalf of the Crown, rightly concedes that Mr. Chau has a direct interest in the contents since they are images of him.

That interest is obviously significantly diminished when it comes to the images of the three associates seen going in and out of apartment #311. Did Mr. Chau have a subjective expectation of privacy? [ 8 ] Mr. Chau did not testify so I do not have direct evidence about what his expectation was. I think it is fair, however, to assume there is some subjective level of expectation of privacy. But given my comments with respect to the subject matter, it is unlikely that that expectation would have been significant. Was Mr.

Chau’s expectation of privacy objectively reasonable? [ 9 ] It is under this heading, in my view, where Mr. Chau’s application must fail. What is at stake is surveillance video, captured for security reasons by the Building management which was turned over to police pursuant to a court order. Again, the images depict him going in and out of apartment #311. They show three other males going in and out of the same apartment. They are taken from a security camera, presumably visible to the occupants, from a position near the elevator. The security cameras were installed by the Building for security reasons.

The footages do not reveal any particular intimate detail about Mr. Chau’s life. The images were captured on five separate days. When I consider all of the factors set out in Patrick under this heading, I conclude that any expectation of privacy Mr. Chau had would not have been objectively reasonable. In addition, I do not know, on this application, what connection Mr. Chau has to apartment #311. He was not listed as the tenant. All I know is that he was seen going in and out of that apartment on five different days, within a one-week period.

I do not know if he is a visitor, a short-term tenant, long-term tenant, or the actual owner. But even if that question were answered in Mr. Chau’s favour, I find that his expectation of privacy, when it comes to the evidence in question, would not have been objectively reasonable. R. v. Wilson and Nguyen [ 10 ] A very similar fact pattern was litigated before my Sister Judge Howard in R. v. Wilson and Nguyen , 2016, Vancouver Registry 217835 BCPC, and I find that it is on all fours with the facts in this case. In Wilson , the police obtained a DVD which depicted Mr.

Wilson going into the parkade of his apartment building with a female, taking the elevator to the fifth floor and turning to the direction of a suite that was under investigation. The video then showed him leaving the apartment building some 36 minutes later. [ 11 ] Judge Howard in Wilson goes through a comprehensive review of the jurisprudence and provides a detailed and careful analysis. She concluded that Mr. Wilson did NOT have a reasonable expectation of privacy when it came to the images depicted in the DVD. Primarily, she found that Mr.

Wilson’s expectation of privacy with respect to those security footages was not objectively reasonable. [ 12 ] The matter was then appealed to the British Columbia Court of Appeal, 2017 BCCA 327 . At para. 3 of the appeal decision, the Court of Appeal clearly had squarely before it the issue of “expectation of privacy in the common areas of the condominium complex”. Nevertheless, the appeal was dismissed as the court concluded that the trial judge did not make any material error in coming to her verdict. There was a further discussion about standing at paras. 5 and 6, but that relates to Mr.

Wilson’s standing to challenge the arrest of Mr. Nguyen. The issue on which the Court of Appeal declined to comment was in relation to that standing issue – not Mr. Wilson’s standing to challenge the admissibility of the surveillance footage obtained in the common area of the apartment building. As such, I take the Court of Appeal to have endorsed Judge Howard’s decision at trial on the issue of Mr. Wilson’s expectation of privacy in the common areas of the condominium. Leave to appeal to the Supreme Court of Canada was then dismissed. [ 13 ] In any event, I find Judge Howard’s decision in Wilson persuasive.

Specifically at para. 58, she said: [58] So, what was the purpose of the video surveillance system? Based on the evidence before me, the only purpose of the video system in place at 821 Cambie Street was to provide security for the complex. Legitimate security concerns would include preventing unauthorized entry into the building and detecting and deterring theft and damage and other crimes that might be occurring within the complex. The video footage might also provide information leading to the identification and apprehension of persons involved in criminal activity within the complex.

For the security system to be at all effective, disclosure of the video images relating to a specific alleged criminal event to the police would be a perfectly natural and rational occurrence. In my view, reasonable and informed occupants of 821 Cambie Street would expect that the video images of this kind would be shared with the police. Any expectation to the contrary

would be unreasonable. [ 14 ] I find those comments completely applicable to the case at bar and I find that any expectation of privacy Mr. Chau has with respect to the video surveillance footage to be not objectively reasonable. Other British Columbia cases [ 15 ] The Crown cited two other cases in which courts in British Columbia have concluded that an accused had no reasonable expectation of privacy when it comes to the common areas in an apartment complex. They are R. v. Law , 2017 BCSC 1241 ; and R. v. Bourdeau , 2019 BCSC 1181 . A similar result was reached in R. v.

Beune , 2005 BCPC 175 , albeit in a non- Charter context. Cases from other provinces [ 16 ] The applicant relied on a number of cases where the courts concluded that a reasonable expectation of privacy does exist in the common area outside one’s unit in an apartment complex. And at first blush there appears to be divergent authorities between British Columbia on one hand, and Ontario and Alberta on the other. However, keeping para. 58 of Wilson in mind, it may well be that the apparent divergence stems merely from a subtle but important distinguishing feature in each of those cases. In R. v.

Douale , 2016 ONSC 3912 , the police went, without warrant, to the hallway outside the accused’s apartment to surreptitiously listen to a conversation. In R. v. Batac , 2018 ONSC 546 , the police had surreptitiously installed a motion-activated camera in the hallway. In R. v. White , 2015 ONCA, the police surreptitiously entered the common area of the apartment building without a search warrant, walked through the hallways, listened at the accused’s door, observed the comings and goings at the accused’s unit, and viewed the accused’s storage locker in the common area. The case of R. v.

Sandhu , 2018 ABQB 112 concerned a police-installed security camera. In other words, in none of the cases cited by the applicant from the other provinces did it involve the seizure of security footage from equipment that the building had implemented itself. Thus, I find Judge Howard’s reasoning in para. 58 of Wilson to be persuasive in distinguishing those cases. [ 17 ] I am not here suggesting that that should be the dividing line between standing or no standing. As is always the case, the analysis should be a principled one and based on the facts of each particular case.

But it seems to me that the genesis and purpose of the security footage makes a big difference when it comes to the reasonableness of one’s expectation of privacy. After all, Patrick mandates that the court considers the subject matter of the evidence, whether the information was already in the hands of a third party, whether the police technique was intrusive, and whether the technique was itself objectively reasonable. [ 18 ] One must also remember that the Charter protects people and not places.

As such, it may be an overstatement to say that one can never have a reasonable expectation of privacy in the common areas of an apartment building. But having gone through the Patrick analysis as I have done, I conclude that Mr. Chau’s expectation of privacy in the case at bar is not objectively reasonable. [ 19 ] Mr. Jessop seeks to distinguish the case at bar from Wilson on the basis that Wilson involved a 150 unit building, whereas the Building in this case has 56.

Further, in Wilson , the video captured the accused leaving the elevator and going in the direction of the target suite, whereas in this case, the image captured Mr. Chau going directly to a specific apartment. With great respect, those are hairs I am not prepared to split. Whether a building has 150 or 56 units makes no material difference in the principled analysis in the case at bar. And whether the footage shows the accused leaving the elevator in the direction of the target suite, as opposed to going directly to the door of his apartment, is inconsequential here.

If anything, I find that the case for standing is stronger in Wilson since in Wilson , the occupants may only access their own floor. In other words, someone who lives on the fourth floor would not have access to the fifth floor. That security feature is not present in the case at bar. Additionally, the police obtained the images without judicial authorization in Wilson . Consequently, I am not persuaded that Mr. Chau is in a better position to ask for standing than was Mr. Wilson. [ 20 ] Mr. Jessop also asked the Court to consider this analysis through the lens of the recent Supreme Court of Canada case of R. v.

Jarvis , 2019 SCC 10 , which stands for the proposition that one does not lose all expectation of privacy simply by being in a public place. While that is clearly so, one must keep in mind that Jarvis was about a teacher surreptitiously recording the chests of his female students for a sexual purpose. As such, the subject matter greatly informs the privacy analysis. As I posited earlier, it may well be that someone can have a reasonable expectation of privacy in the hallway of an apartment building if, for example, the suspect surreptitiously recorded the occupants for a sexual purpose. But that is not this case.

And Jarvis does not compel me to reach a different conclusion than the one that I have expressed above. [ 21 ] In

summary, I find that Mr. Chau does not have a reasonable expectation of privacy with respect to the images captured in the hallway of the Building. His application for standing to challenge the associated warrants is hereby dismissed. _________________________ The Honourable Judge A. Tam Provincial Court of British Columbia