In a criminal proceeding, the Ontario Court of Appeal recently rendered a decision which should be very interesting to condominium corporations. Basically, the courts had to determine whether police officers were authorized to enter the corporation’s common elements without invitation or warrant to conduct a criminal investigation. In this context, the Court had to answer the following question: to what extent does a unit owner have a reasonable expectation of privacy in the common elements – stairways, hallways, and storage rooms – of his or her building?

The short answer: it all depends on the circumstances of a particular case (which is a typical answer for a lawyer…). The size of the building, the number of units per floor and even whether the building is secured or accessible to the general public will have an impact on an owner or occupant’s reasonable expectation of privacy in the common areas.

In this case, both the trial judge and the Court of Appeal were very critical of how the police conducted its investigation which was in breach of the owner’s rights.

Background

Merith White is the owner of a condominium unit in Ottawa (the “Owner”). The Owner came to the attention of the police in the context of an investigation of another individual (the “Suspect”), whom they believed to be involved in drug trafficking. The police came to suspect that the unit was being used as a stash house for drug trafficking as the Suspect visited the unit over 75 times in the course of 4 months.

To further their investigation, a detective decided to enter the condominium building on three occasions without obtaining a search warrant. Each time, the detective entered without the knowledge of any of the residents and without any prior consent:

  1. During the first visit, the detective entered into the condominium building by following a postal worker into the building through a door that was always locked. Once inside, he took the stairs to the lower level where he entered an unlocked storage room. There, he observed the content of the Owner’s storage locker which was cage-like and therefore its contents were visible. The detective then went upstairs where he observed the Owner’s unit. He was in the building for approximately 20 minutes.
  2. During the second visit, the detective entered the building through the north stairwell door, which he said was always locked. However, the locks did not latch properly in the winter and, as such, the door was not locked. Once inside the building, the detective hid in a stairwell and from this location observed the Suspect leaving the unit carrying a box.
  3. During the third visit, the detective used the same north stairwell door to get inside the condominium building. The detective stationed himself in the stairwell and observed the Suspect entering the unit. The detective overheard a conversation inside the unit and believed that it concerned a drug deal. He also heard what he thought was the sound of packing tape being removed from a roll. The detective observed the Suspect leaving the unit with a box in his possession and depositing the box into a minivan. The minivan was pulled over by the police and the box was found to contain 2,679.4 grams of marijuana and 166.6 grams of cocaine.

It is only afterwards that the police obtained a search warrant for the Owner’s unit. It is interesting to note that the detective met with the board of directors after the execution of the search warrant. The board indicated that, had the police requested permission to enter the building, such permission would have been granted. In fact, 70% of the residents eventually voted to sign an authorization under the Trespass to Property Act allowing police to enter the building in the future. This authorization was obtained after the three searches without warrant.

The Court Decisions

At trial, the Owner brought an application alleging a breach of his rights under section 8 of the Canadian Charter of Rights and Freedoms (the “Charter”) arising from the three surreptitious entries and the subsequent search of his condominium unit. Section 8 of the Charter provides that everyone has the right to be secured against unreasonable search or seizure.

The Trial judge concluded that the police did not have a statutory right to enter and search the common areas without permission as they did and that, as such, they violated the owner’s Charter rights. As a consequence of this, the trial judge excluded the evidence obtained as a result of these illegal searches. The Crown appealed.

The Court of Appeal confirmed that a resident may have possession and control of the common areas of the building. It also acknowledged that the right to be secured from unreasonable search or seizure protects reasonableexpectations of privacy. Naturally, the reasonableness of this expectation of privacy will be determined having regard to all of the relevant circumstances in a particular case. When determining the extent of expectation of privacy, the courts will consider:

  • The size and layout of the complex and the number of units and occupants;
  • The building’s security system;
  • Whether access to the common areas, including the locker area, is opened to the general public or not; and
  • Whether there are any signs prohibiting access to strangers.

Clearly a large building with 200 units and with a lot of movement may result in a lesser expectation of privacy than a small building with 6 units. In this case, the condominium complex was rather small, having only 10 units over 4 floors. Access to the complex was expected to be restricted, with the entrances intended to be locked. The building was small enough that the detective had to hide, otherwise his presence as a stranger in the building would have likely been noticed. While the access to the building’s storage area was not restricted to other occupants, it was not opened to the general public. It was therefore reasonable for the owner to assume that strangers would not surreptitiously come in, hide in the stairs and observe the comings and goings or overhearing conversations and actions in his unit. It was also reasonable for him to expect that the buildings’ security system would operate to exclude strangers, including the police, from entering the common areas without permission or invitation. All of this contributed to an expectation of privacy. Consequently, the evidence obtained as a result of these searches was excluded.

It is to be noted that the Trespass to Property Act prohibits strangers from entering a premises without the express permission of the “occupier”. In our view, the board of directors constitutes an occupier under this Act and, therefore, could give police the permission to enter the common areas. Indeed, the definition of “occupier” under this act includes a person who has responsibility for and control over the condition of the premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises.

It may be wise for condominium corporations to adopt a policy or a rule granting access to police to the common areas of the corporation. Adopting such a policy or rule would give notice to the owners and would likely reduce the expectation of privacy. Such an approach may also deter occupants from conducting criminal activities on the corporation’s property.