Canada: Undercover On The Common Elements – What To Do When The Police Come Knocking…Or Not

Condominium corporations are often presented with the challenge of how to deal with police seeking access to the corporation's property for various reasons. The question to be considered is what expectation of privacy from police – if any – a condominium resident should have on the corporation's common elements. This was the subject of a recent criminal matter heard by the Ontario Court of Appeal.

In R. v White, the police suspected that the resident of a condominium unit was a drug dealer and that the unit was being used as a "stash house" for considerable quantities of drugs. Over the course of two months, a police detective entered the condominium building where the suspect lived on three separate occasions. On the first visit, the detective followed a postal worker into the building through an otherwise locked door. On the second and third visits, the detective gained access through an exterior door leading into a stairwell which was designed to be locked at all times but which was malfunctioning. At no time did the detective seek the authorization of the condominium corporation or the suspect to access the building.

Once inside the condominium building, the detective entered and inspected the storage locker area, walked through the corridors, and hid in stairwells while observing and listening to the accused's unit. Based on evidence obtained from this access, the police pulled over the suspect's car and found significant quantities of drugs. This "find" was then used to obtain a search warrant for the suspect's unit, where more drugs were found. The police did not advise the judge issuing the warrant that its access to the condominium's common elements – which had been key to confirming the suspect's involvement in criminal activity – was done without prior authorization.

At trial, the accused brought a challenge under Section 8 of the Charter of Rights and Freedoms alleging a violation of his constitutional right against unreasonable search and seizure. Detectives on the case testified that, while they would never step foot on the lawn of a house to investigate, or install a video camera to record condominium events without a warrant, they felt entitled to enter the common elements of a condominium corporation because they were in the process of an investigation and believed the common elements were in the nature of public spaces.

The trial judge found that the evidence and warrant obtained by the police, based on what he found to be unauthorized access, violated the Charter and the evidence was excluded from the trial. As a result, the accused was acquitted on most charges. On appeal by the Crown, the Court of Appeal upheld the trial judge's decision and looked closely at whether condominium residents have a reasonable expectation of privacy on common elements.

The Court of Appeal commented that if police were entitled to sneak in behind others, use broken doors and climb through windows into a condominium building – following which they inspect lockers and observe and listen to units – then "the concept of a reasonable expectation of privacy means little."  The Court found that the accused had a reasonable expectation that the building's security system would exclude outsiders, that the lockers (while unregulated) were not open to the general public, and that people would not be hiding in the stairwells to observe and listen to his unit. These actions constituted trespass by the police and, therefore, any evidence obtained as a result ought to be excluded from the trial. Even the fact that the condominium corporation's board testified that it would have granted the police access, if asked, did not change the fact that the access, when it happened, was illegal. The Court noted that the investigation by the police was not the result of a complaint of criminal activity being carried on in the building nor was the police access authorized by the condominium corporation.

The Court further found that, "There is nothing 'perverse' about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides."

There are certainly times when a condominium corporation may wish to permit police access to the common elements in order to respond to or investigate a crime. So how does the corporation facilitate police access to the property in the appropriate circumstances? Below are some guidelines for a few common situations:

  1. Where the police attend the condominium property in response to an emergency situation or unit owner complaint, access should be granted.
  2. When presented with a search warrant, the condominium should comply with the terms of the warrant. However, the property manager or security staff is entitled to read the contents carefully before permitting access. If there is any ambiguity as to the terms of the search warrant, counsel should be called immediately.
  3. Conversely, if the police attend at the condominium without a warrant seeking access to the premises or the corporation's records, such as security video footage, access should be denied in a polite manner until such time as the board or property management has had the opportunity to review the matter with counsel.
  4. Finally, if the police approach the board or property management seeking access to the common elements to investigate an ongoing, non-urgent crime, the board may consider executing an authorization under the Trespass to Property Act to permit the police to access the common elements. However, in order to balance the interests of the police investigation with the privacy of other unit owners, the authorization should set out clearly the purposes for which access is being granted, especially the specific unit(s) under investigation.

It is beneficial for a condominium corporation to have a written protocol as to how police inquiries and visits will be dealt with. The board, property management and security staff should all have a copy of the plan on hand, and be familiar with its contents, so that the proper response can be given at a moment's notice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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