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Do Police Need a Warrant to Investigate on Common Elements (Part I)

The Toronto Star recently covered an interesting story involving Toronto police having installed a covert camera in the hallway of a condo corporation to assist in their investigation. They did so without a warrant but with the board’s permission.  This piece raised privacy concerns, which lead us to ponder on the duties, rights and obligations of condo corporations when approached by police to conduct an investigation on common elements. We will address this in a series of posts.

Share you thoughts on this topic by taking our short survey on whether condo corps. should cooperate with police.

The Brewster case

In 2014, the Toronto police installed a hidden camera in a condominium hallway to secretly record the comings and goings out of a unit, in the context of a gang-related drug-dealing investigation.  According to the Toronto Star, the police installed this camera without a warrant but with the board’s permission. Naturally, owners were not made aware of the presence of this camera and of the ongoing investigation.  The camera is said to have recorded images of many occupants who were entirely uninvolved in the activities being investigated. The police apparently also accessed the corporation’s video feed (without a warrant but with the board’s permission). During the course of the investigation, there were some 90 warrantless entries on common elements of various condo buildings in the Toronto area.

The accused alleged that the evidence captured by the secret police camera should not be admitted in evidence as it was in breach of section 8 of the Charter (which protects against unreasonable search or seizure) and constituted a breach of privacy. The accused argued that their home (and therefore their expectation of privacy) did not start at the unit door but rather at the front lobby door.

The trial judge concluded that a warrant was not required in this case and admitted the recorded evidence. He ruled that security cameras are common in condo buildings’ shared spaces and that any invasion of privacy (including that of other owners) would have been minimal. According to the judge, hallways in condo buildings are the equivalent of sidewalks or streets outside detached homes.

This decision is now being appealed, with the appellants asking for a new trial excluding the warrantless recording.  The appeal is scheduled to be heard on April 8, 2019.

The White Case

This is not without reminding us of the White case out of Ottawa, where police were criticized for having covertly entered a condo’s common areas (following the mail person or using a door which did not properly latch in the winter) to investigate a crime. There, the police hid in staircases and locker rooms to gather evidence.  An important distinction in that case is that not only did the police not have a warrant, they had not asked the board (or anyone) for permission to enter the common elements.

In the White case, the judge ruled that the police did not have a statutory right to enter and search the common areas without permission and that this violated the accused Charter rights. That case provided an interesting analysis on the variating expectation of privacy depending on the size and layout of the condo complex.

We blogged about this.

Balancing privacy and security

Ultimately, the question on this blog series is whether condo corporations can (or should) assist police in the context of an ongoing investigation.

There are two opposing views here:

  • Those in favour of increased privacy will argue that condo owners are not entitled to less privacy and less protection against state-surveillance than those who live in a house? As such, police should not be authorized to film (or access security tapes filming) common elements.
  • Those in favour of increased security will argue that criminals should not be able to use the common elements as additional protection to veil their illicit activities. Most condo owners will gladly give up some hallway-privacy for increased security.

Once more, the board of directors finds itself stuck between a rock and a hard place.

  • Should they cooperate with the police and grant access to their common elements and to the corporation’s video feed?
  • Should they place privacy considerations above security considerations?
  • Are directors capable, trained and “equipped” to balance privacy, security and Charter rights?
  • Should directors always demand a warrant before allowing police to investigate on common elements?
  • Should owners be consulted and asked to consent to the board cooperating with the police?

So, what is a corporation to do?

In our next post, we will discuss the options available to corporations when balancing privacy and security in the context of police investigations.

Survey

Share you thoughts on this topic by taking our short survey on whether condo corps. should cooperate with police and, if so, to what extent.

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