Cameras and Police Investigations on Common Elements: Limits of Board Authority

The Ontario Court of Appeal has issued an important decision giving condo boards some clarity on how much they are expected to cooperate with police investigations. It also traces clear limits on investigatory powers police have on common elements.  Ultimately, the Court of Appeal helps us understand whether police can conduct investigations on common elements, whether they can install hidden cameras, and to what extent the corporation can assist in such investigations.

The facts of this case

We’ve already blogged on this case in the past.

In a nutshell, the police had obtained wiretap authorizations under the Criminal Code, authorizing them to intercept the communications of some 144 “known persons”. The warrant authorized the police to enter common areas of multi-unit condominium complexes, to enter some private units and to install hidden cameras in the hallways outside of these units to further their investigation.

The investigation resulted in the arrest of 112 individuals, some of whom were charged with offences including murder, drugs and firearms and human trafficking, possession of firearms and possession of drugs for the purpose of trafficking. [This puts into perspective breaches to condo rules limiting dogs based on weight.]

Prior to having obtained their warrants, the police had accessed the condo common areas to make observations, including the parking garages, hallways and stairwells. The police had also installed hidden hallway cameras with the consent of the condominium corporations. [It is unclear whether this consent came from management, from the boards or from both]  Some of the access to common elements was done prior to having obtained the corporation’s consent.

Question for the court

On this appeal, the court had to determine whether the evidence obtained through this police investigation was in breach of s. 8 of the Charter (which protects Canadians against unreasonable search and seizure). The decision provides valuable lessons for condo corporations on the level of cooperation to be granted to police and on the level of privacy owners may expect while on common elements.

Expectation of privacy

The corporation (and the state) must balance the competing interests of, on the one hand, the privacy expectation of those being investigated and, on the other hand, other residents’ interest in consenting to police entry. Ultimately, when dealing with the accused’s rights under the Charter, the ultimate test is whether the accused could reasonably expect that his or her co-residents would have the power to consent to police entry in common spaces.

With respect to the level of privacy reasonably expected on common elements and, by extension, the level of board cooperation with police investigation, the court concluded as follows:

• The highest level of privacy is expected in units. But as soon as one opens the door or steps out in the common elements, the expectation of privacy is greatly reduced.

• Individuals have a reasonable but low expectation of privacy in condo hallways. The expectation of privacy is greater when access to a building is controlled. The expectation of privacy will also vary based on the size of the complex, the number of owners and whether there are already known security cameras in the hallways. The expectation of privacy will also vary depending on the common areas being accessed (less privacy expectation in the main lobby; more at the end of a hallway as you get closer to someone’s residential unit).

• The expectation of privacy in hallways is attenuated by the authority of the board and management to consent to police entry.

• The police cannot enter common hallways without the corporation’s consent (for the purpose of covert surveillance) unless they have a warrant. Boards and management can grant police access to common areas for the purpose of an investigation.

• Boards and managements cannot consent to the installation of hidden police cameras in common elements. But may disclose their security footage to the police.

• Individuals do not have a reasonable expectation of privacy in condos underground parking garages (certainly not in a case where it is shared with 440 other unit owners. One can expect that a much smaller garage, say for 10 owners, may bring an increase expectation of privacy). Similarly, there is no expectation of privacy in the visitor’s portion of the parking.

Keep in mind that, under the Condo Act, the corporation has a statutory duty to administer the common elements and to manage the property on behalf of all owners. The board is elected by the owners to do so in their best interest. The board (and by extension management) are entrusted with the security of the building and its residents.  This can be understood as granting boards the responsibility and authority to act as the decision maker for the owners as a collective. They can decide the level of cooperation with the police and whether they will grant access to the common elements or to security footage.  But there are limits to the access board (or management) can grant to the police.

Condos cannot grant police access to unit

The board’s and management’s right and ability to regulate access to the building does not, however, grant them the authority to consent to more intrusive police investigation measures, such as entry into a particular unit. This is important as section 19 of the Act allows the Corporation and their agents to enter a unit, at a reasonable time, “to perform the objects and duties of the corporation or to exercise the powers of the corporation”.

Furthering a police investigation is not, in our view, captured by this section as it does not fall within the objects or duties of the corporation. As such, in our view, the corporation cannot grant police covert access to a unit for the purpose of furthering an investigation (a potential exception to this may exist if the police has a warrant).

Condos cannot authorize the installation of hidden police cameras

While the court concluded that there is a low expectation of privacy in common hallways, the Court of Appeal was of the view that this did not necessarily allow police to proceed to surreptitious state recording in these same hallways.  More importantly, the court concluded that it would be unreasonable for the condo board (or management) to consent to the installation of police hidden cameras (without a warrant).

The court accepts and recognizes that corporation are authorized to install cameras in some common locations for security purposes. This however does not translate in a blank cheque authorizing the state to install their own hidden cameras.  Residents expect boards to reasonably cooperate with the police as part of the board’s duty to manage common areas in the resident’s collective interest. However, this does not give boards the right to consent to any and all forms of covert police investigation in common elements, such as hidden police cameras. On this, the court wrote:

It is important to note that the court accepted that, in certain circumstances, the corporation may share with police the recording of the corporation’s security cameras.

The solution

Related posts

• Police cannot snoop around in Common elements without warrant or permission
• Police need a warrant to investigate on common elements (part I)
• Police need a warrant to investigate on common elements (part II)