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

In this series of posts, we are exploring the question of whether condo corporations can (or should) assist police in the context of an ongoing investigation.

[Have a look at our more recent blog post on this issue]

In our prior posts, we reviewed two cases where police entered onto common elements for the purpose of their investigation.

• In the White case, the police entered and hid onto common elements without a warrant  and without board permission. The court concluded that this was improper and that the police did not have such a statutory authority.

• In the Brewster case (which is under appeal), the police installed hidden cameras in a condo hallway to record the ins and outs of a condo unit in the context of a gang-related drug-dealing investigation. The police did so without a warrant but, this time, with board permission.

Both of these decisions turn on police action without a warrant. So, what is a warrant?

What is a warrant?

Generally speaking, a warrant is an order obtained from a Justice of the Peace authorizing someone (usually the police) to enter into a private residence or any other place where a reasonable expectation of privacy exist, for the purpose of investigating a crime or to gather evidence. A warrant makes valid an act which would otherwise be considered trespass or would otherwise be considered a breach of section 8 of the Charter. This section of the Charter protects individuals against unreasonable search or seizure. Evidence which is obtained in contravention of this section of the Charter can be thrown out and not considered at a criminal trial.

Police seeking to obtain a warrant must provide, in a sworn statement, evidence demonstrating that they have “reasonable and probable grounds” to believe that an offence has been (or is being) committed at the place to be searched. Reasonable grounds require more than “suspicion” but does not require evidence “beyond reasonable doubt”.  Warrants are obtained on an ex parte basis, which means without notice to anyone else and in the absence of anyone else to contest the evidence submitted by police. For this reason, police must make what’s called “full, fair and frank disclosure of all material facts” at the basis of their request for a warrant.

Without a warrant, the police cannot enter someone’s home unless consent is given. So, this leads to the ultimate question in this series of posts:

Can and should board consent to police entering the common elements?

Let’s first look at whether a condo corporation can assist police and we will then turn our minds to whether the condo corporation should assist the police.

Can the board authorize the police to search/investigate on common elements?

There can be, in our view, no doubt that boards of directors have the authority to allow police to access, investigate on, or search through common elements.

On this, the first clue is at section 17 of the Condo Act, which provides that “the objects of the corporation are to manage the property and the assets… of the corporation on behalf of the owners“. Specifically, subsection 17(2) provides that:

The corporation has a duty to control, manage and administer the common elements and the assets of the corporation.

There is no doubt that this section authorizes the corporation to consent to police presence on common elements. In fact, section 26 of the Condo Act provides (at least when dealing with occupiers liability) that it is the corporation and not the owners who are the occupiers of the common elements. This further supports that condo corporations can provide the required consent for police to enter common elements.

Similarly, under the Trespass to Property Act, consent to access a premises (which includes any land and structure) can come from any occupier – even if there is more than one occupier of the same premises. This piece of legislation, defines occupier as a person who is in physical possession of the premises and includes “a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises“.  There can be no doubt that this includes the corporation itself, through its board of directors.

Now that we know the corporation can consent to police accessing common elements, the remaining question is whether the corporation should grant such access.

Should the corporation grant police access to common elements?

Arguments in favour of more cooperation with police

One could easily argue that the corporation has a general duty of care towards the owners and occupants of the condo. After all, isn’t one of the powers granted to the corporation the authority to adopt rules promoting the safety, security and welfare of owners? Isn’t the object of the corporation to control, manager and administer the common elements of the corporation? Finally, isn’t the corporation the occupier of the common elements? All of these rhetorical questions support, in our view, the existence of some form of general duty of care towards the owners and occupants of the condo.

While the Condo Act does not specifically prohibit the conduct of criminal or illegal activities (not sure how that happened…), many declarations prohibit (one way or another) illegal or criminal use or occupancy of units or common elements.  Section 117, for its part, prohibits the conduct of any dangerous activities, which are defined as activities which are likely to damage property or cause injury to an individual.

Moreover, the Occupiers Liability Act imposes on the occupier (in this case, the corporation) “a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises…. are reasonably safe while on the premises“. One could argue that such reasonable step would include cooperating with police when they are investigating the commission of crimes in the condo complex.

There can also be very little doubt that most (if not nearly all) owners would want the corporation to facilitate police work to put an end to any criminal or dangerous activity taking place at the condo. Owners and the public would understandably be very upset if someone got injured or killed in a unit as a result of a criminal activity and it was later discovered that the corporation had hindered in any way the work or investigation of the police.

Should board really get involved?

But, on the other hand, is a board really equipped to balance public security with the privacy expectation of its owners? Should the board really get involved in undercover police operations? Are board really equipped to determine whether there are sufficient “reasonable and probable grounds” to believe an offense is being committed, which requires access to police without a warrant? Is the board receiving “full, fair and frank disclosure of all material facts” from the police when making its decision?

We’re certainly not suggesting that boards not cooperate with police. But there is nothing wrong with requesting that the police obtain a warrant before authorizing any extensive (covert) investigation on the property. After all, why not let the police go through the exercise of getting a warrant issued? Let a Justice of the peace determine whether there are sufficient “reasonable and probable grounds” to allow an encroachment on privacy. This will protect the rights of both the accused and the occupants.

The solution

In many cases, the ultimate decision will turn on the specific facts of the matter.  Corporation should consult with their legal counsel before authorizing such access to common elements or to security footage.

We have assisted many corporations with this conundrum by helping them adopt and publicize clear rules of engagement, in the form of policies or rules, establishing when and to what extent the corporation will cooperate with the police and other authorities. Such rules/policies should address:

• Whether the corporation will grant police access to common elements and in what circumstances;
• Whether police will be granted access to security footage and in what circumstances;
• Whether the above will be granted with or without warrants and with or without notifying the owners;
• Who will have access to the corporation’s security feed; etc…

Ask us about our policies and rules dealing with the above.

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.

Related posts:

• Do police need a warrant to investigate on common elements (part I)
• Police cannot snoop around in common elements without warrant or permission
• Condo Directors have limited rights to privacy

 

 

Updated Dec. 3/2019