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Condo Residents Have No Expectation of Privacy in Parking Garages, and Low Expectation of Privacy in Hallways
The Ontario Court of Appeal has recently affirmed, on December 2nd 2019 in the case of R. v. Yu, 2019 ONCA 942 (“Yu”), that condominium residents have significantly diminished privacy rights in the common elements.
In R. v. Yu, two sets of rival gangs were waging war in downtown Toronto, and the defendants resided in several condominium buildings where large amounts of weapons, drugs, and cash were found by the police. The criminal defendants launched Charter challenges to exclude the evidence found by the police, and argued that the police’s installation of hidden security cameras in the hallways outside of their condominium units violated their Charter right to be free from unreasonable search and seizure.
Although the unanimous Ontario Court of Appeal ruled that the Charter only applied to state conduct (e.g. criminal law prosecution by Her Majesty the Queen and her police agents), the Court’s statements about a condominium resident’s reasonable expectation of privacy may have direct implications for condominium law.
Essentially, the takeaways for condominium corporations are:
- security cameras to monitor the common elements – including hallways – can be installed by a condominium corporation,
- but condominiums ought to err on the side of caution, and post visible signage to notify residents that the common elements may be monitored by video surveillance; and
- when the police ask to install a hidden camera on the common elements, the condominium should insist that the police obtain a judicial warrant for such surreptitious surveillance first.
Condominium has a Duty to Manage the Common Elements
In Yu, the Court of Appeal held that under Section 17 of the Condominium Act (the “Act”), a condominium corporation has a statutory duty to administer the common elements and to manage the property on behalf of the owners, and that the Board of Directors is elected by the owners to manage these affairs in their best interests, pursuant to Sections 27 and 28 of the Act. The Court explicitly ruled, at paragraphs 91 and 92, that:
“This statutory duty can be understood as conferring a responsibility and authority on the board to act as the decision maker for the owners as a collective. The condominium board and, by extension, property management, were entrusted with security of the building and the residents.”
The Court further held, at paragraph 98, that:
“The property manager, Mr. Chudnofsky, likewise had the authority to provide consent [to the police]. The condominium board entrusted him with management of the property, including its security.”
Accordingly, the Court found that the Condominium Manager was authorized to grant permission to the police to enter the common elements of the condominium, including providing police with a key fob to the underground parking garage and an access code for the front lobby door.
The Court of Appeal held that it did not matter that the police had deliberately misled the Manager about why they were seeking his permission to enter into the common elements – the police advised him that they were investigating a car theft ring – in order to avoid jeopardizing the confidential nature of their particular investigation into the gang war. The lower Superior Court of Justice had found, during the criminal Defendants’ first attempt at their Charter challenge in R. v. Brewster, 2016 ONSC 4133 (“Brewster I”), at paragraph 98, that the particular Condominium Manager and his larger Management team had reasonable concerns about the problem of crime in the building, and therefore, the actual crime under investigation did not matter – the Manager would have given his consent to the police anyway, regardless of whether he was specifically apprised about the true nature of the police’s investigation or not.
No Reasonable Expectation of Privacy in Underground Parking Garage
The unanimous Ontario Court of Appeal in Yu also re-affirmed the Court’s earlier ruling in 2009 that individual residents do not have any objectively reasonable expectation of privacy in the underground parking garage. The large parking garage is shared with hundreds of other owners, and individuals have very little control over the parking garage.
Here specifically, the common element parking garage had a Visitors Parking area that was accessible to the general public. From the Visitors Parking area, the Defendant’s vehicle could be plainly seen. Accordingly, the Court of Appeal rejected the Defendant’s Charter challenge against the police’s entry into the underground parking garage for the purposes of investigating him, and ruled at paragraph 80:
“… the police generally entered the visitors’ section to determine whether a target’s car was parked in the garage or not, which they were entitled to do as any visitor could do. The appellants had no reasonable expectation of privacy regarding observations made from a space accessible to the general public. Even if the appellants had a subjective expectation of privacy in the garage, that expectation was not objectively reasonable.”
However, the Court of Appeal was of a different view when it came to the common element hallways of the condominium.
Some, but Low, Reasonable Expectation of Privacy in Hallways
In the Ontario Court of Appeal’s earlier decision of R. v. White, 2015 ONCA 508 (“White”), the Ottawa police had entered a small 10-unit condominium to investigate a particular unit’s occupant who was suspected of dealing drugs. The police, without a warrant, walked through the hallways and entered the storage area to view the contents of the suspect’s storage locker. The police also hid in the stairwell, where they observed the suspect’s dwelling unit and listened to what was going on inside. Using the information gathered from these warrantless entries, the police obtained a warrant and subsequently arrested the suspect on drug trafficking charges. The Ontario Superior Court of Justice acquitted the suspect, due to the Ottawa police’s violation of his Charter right to be free from unreasonable search and seizure. The trial judge’s acquittal was upheld by the Ontario Court of Appeal, which held that the suspect had a reasonable expectation of privacy in the common areas of the condominium building.
The Ontario Court of Appeal in Yu, on the other hand, distinguished from White on the grounds the 300-plus-unit Toronto condominiums at issue in Yu were much larger than the 10-unit Ottawa condominium in White – and with the increased size of building population, comes a diminished expectation of privacy – and because the police observations in Yu were much narrower than the police observations in White. Unlike in White, the police in Toronto did not make or attempt to make any observations about the affairs happening inside the dwelling unit or enter private areas like the storage lockers.
Nevertheless, the Court of Appeal held that the individual residents who were targeted by the police investigation in Yu were entitled to at least some degree of reasonable expectation of privacy. The Court of Appeal held, at paragraphs 82 to 87 of Yu, with our emphasis added:
“[82] Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
[83] The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
[84] Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.
[85] A resident or occupant’s reasonable expectations surrounding camera surveillance in a condominium building depend on whether the cameras are visible, and whether the resident has been informed by the condominium management as to the location of any security cameras installed in the building. If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance.
[86] The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed. As soon as they open their door, or exit their unit, it is reasonable to expect that they may be observed, with that level of expectation increasing the closer they get to the main areas of the building or to any security cameras.
[87] On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. At the Joe Shuster Way building, security cameras are installed in the lobby, the ramp to the parking garage, at the elevator lobby, and in the elevators – but not in the hallways outside units. The appellants had some limited reasonable expectation of privacy in those areas.”
However, the Court ultimately ruled that the individual Defendants’ reasonable expectation of privacy in the common element hallways is extremely low. The condominium buildings at issue in Yu were over 300 units each, and the individuals ought to have been mindful of the governance structure already in place for condominium corporations in Ontario. Specifically, the Court held that because the Board of Directors, and the Condominium Manager by extension, are authorized to manage the common elements and are entrusted with the security of the building, the Defendants ought to have reasonably expected that the Manager could consent to police entry into the building and its hallways to investigate possible criminal activity.
The Court of Appeal specifically ruled, at paragraph 151, that:
“[The Defendants’] expectation of privacy in the hallway was diminished, as what they did there could be in the view of whoever entered the building and went to their hallway.”
The Defendants tried to argue that the hidden cameras in the hallway violated the privacy rights of other residents who lived on the same floor as well, who were also caught in the camera’s surveillance footage. However, the Court of Appeal held, at paragraph 117, that:
“… the interference with the privacy of other residents was minimal. The camera caught some other residents in the hallways outside their doors, and allowed a very narrow view into the doorways of some neighbouring units. This was not a significant interference with the privacy of the appellants’ neighbours and co-residents.”
Visible Cameras Operated by the Condo are OK
As noted above, at paragraph 85 of Yu, the Court of Appeal held, with our emphasis added, “If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance.”
Accordingly, the argument could be made that if the surveillance camera is not hidden, and the resident has not been told that there are no security cameras whatsoever at the premises, then the visible surveillance camera does not breach the resident’s reasonable expectations surrounding camera surveillance in the building.
At paragraph 36 of Yu, the Court of Appeal noted that the Superior Court judge had found that:
“There was evidence that the property management was already conducting video surveillance of the common areas of the buildings. This suggested that the residents had given up certain expectations of privacy in relation to these common areas.”
The Superior Court judge in R. v. Brewster, 2016 ONSC 8038 (“Brewster II”), also found that that there is widespread use of surveillance cameras in the common areas of condominium buildings, relying on the expert evidence put forth by Dr. Ute Lehrer, an Associate Professor in the Faculty of Environmental Studies at York University and an expert in urban planning with a specialized focus on condominium development. At paragraph 56 of Brewster II, the Superior Court held that:
“… surveillance cameras are commonplace in the lobbies, parking garages, elevators, and hallways of condominium buildings, indicating that the owners accept this reduction of their privacy interests in these common areas that lead to their homes, in favour of collective security. This interest in enhanced security in the common areas of condominium buildings is not surprising, given that a resident of a multi-unit building is living in very close proximity to neighbours who may not be known and who may be suspicious or even dangerous.”
Accordingly, the Superior Court ruled, at paragraph 51 of Brewster II, that the “condominium owners do give authority over security in the common areas of the building, including video surveillance, to condominium management.”
At paragraph 124 of Yu, the Ontario Court of Appeal upheld Brewster II and ruled that:
“… condominium residents may, on occasion, be subjected to video surveillance from cameras installed by the property management in common areas of their buildings, and these inconveniences are to be expected.”
Accordingly, although Yu was a criminal law case about Charter violations, the Court of Appeal unanimously held that the “inconvenience” of being surveilled by cameras in the common elements of the condominium is one that is to be reasonably expected, given the governance structure of the condominium corporation and its statutory duty to manage the common elements for hundreds of owners.
Hidden Cameras Operated by the Condo are OK
Also in line with paragraph 85 of Yu, the argument could be made that if the condominium’s surveillance camera is hidden, and the residents have not been told that there are no security cameras at the premises, then the hidden surveillance camera does not breach the resident’s reasonable expectations surrounding camera surveillance in the building.
The Superior Court judge held, at paragraph 55 of Brewster II, with our emphasis added, that:
“… there is a minimal privacy interest in the comings and goings at the external entrance to any private residence. Everything that the police observed in the 17th floor hallway, with the aid of cameras, would be visible from the sidewalk or street if the targets were living in a detached dwelling house. The fact that Ken Mai repeatedly entered and left the hallway leading to his 17th floor unit, sometimes with a bag and sometimes without a bag and sometimes in the company of another suspect, is no different than observations of a homeowner walking along the front yard path leading from the garden gate to the front door of a detached dwelling house. The latter observations have always been the subject of warrantless surveillance by police officers. Those surveillance officers sometimes carry still cameras or video cameras, indeed they are encouraged to use this simple and longstanding technology because it produces much more reliable surveillance evidence.”
Accordingly, a condominium corporation’s hidden camera that monitors the common element hallway, especially if said camera was installed for the specific purpose of enforcing against a particular breach of the Act or the condominium’s governing documents, could be entirely in line with the residents’ “reasonable expectation of privacy”.
Nonetheless, condominium corporations may be wise to alter the “reasonable expectation of privacy” held by the owners and residents at the building, by posting signage and distributing notice to residents that there are surveillance cameras operated by the condominium corporation that overlook the common elements for the purposes of ensuring the safety of persons and property, and that such cameras may or may not be entirely visible to the regular bystander. By explicitly advising residents that surveillance cameras at the premises may or may not be visible, the residents’ reasonable expectation of privacy can be diminished so that residents expect to be surveilled on the common elements. As the Court of Appeal held at paragraph 86 of Yu, “The only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed.”
The Court of Appeal was careful to note that this case engages unique considerations because the hidden cameras were installed and operated by the police acting as an agent of the state – not by the condominium corporation itself. At paragraph 125, the Court held that “observation by state agents raises different concerns than observation by other private actors”.
The Court further noted that a condominium corporation may choose to share their surveillance camera footage – whether taken by a hidden camera or a visible camera – with the police afterwards. At paragraph 125, the Court noted that “condominium residents could not reasonably expect that building management would be unable to share with the police video recordings from cameras that management had installed for its own purposes”; and at paragraph 127, “Condominium residents expect the board to reasonably cooperate with the police as part of the board’s duty to manage common areas in the residents’ collective interest.”
However, the installation of hidden surveillance cameras by the condominium corporation at the insistence or direction of the police, may open up the condominium to separate liability.
Hidden Cameras Operated by the Police Without a Warrant are Not OK
At paragraph 124 of Yu, the Court of Appeal held that although condominium residents should expect to be surveilled by the condominium corporation while on the condominium’s common elements:
“It does not follow that residents would reasonably expect to be secretly recorded by the state. Both the fact that the camera was hidden and that it was installed and operated by police distinguish it from regular security cameras. The appellants have different expectations of privacy in these different situations.”
Under Section 17(3) of the Act, a condominium corporation “has a duty to take all reasonable steps” to ensure that the owners and residents of the condominium comply with the Act’s obligations under Section 119(1) of the Act; which includes the obligation to ensure that no condition or activity exists in the premises that is likely to cause personal injury or property damage, under Section 117 of the Act.
A condominium corporation that grants blanket or unquestioning authority to the local police to enter the common elements and set up hidden surveillance cameras, may violate its Section 17(3) duty to take only reasonable steps towards ensuring compliance. The Ontario Court of Appeal held in Yu, at paragraphs 132 and 133, that:
“It was not reasonable for the condominium board or its delegates to consent to surreptitious video surveillance on behalf of the residents. This is beyond the bounds of its authority. The board has a duty to manage common areas. This will sometimes involve allowing non-residents such as maintenance people, management, and perhaps even police, to enter common areas as needed. Surreptitious video surveillance by the police is different. There is a limit to the board’s delegated authority. That limit was surpassed when the board purported to consent to the installation of hidden cameras [by police] on behalf of residents.
There is no other statutory or common law power that authorized the police to install hidden cameras without a warrant. The warrantless installation of the camera at Joe Shuster Way therefore breached s. 8 because it was not authorized by law.”
Accordingly, we recommend that condominium corporations, when presented with a request from the police to install hidden cameras in the common elements, should ask that the police return with a judicial warrant for such surveillance first.
What About Police Entry into a Dwelling Unit Itself?
The Ontario Court of Appeal in Yu also held that the police cannot enter the common element hallways of the condominium corporation – specifically, the hallways which are access-controlled and off-limits to the general public – without first obtaining permission to do so from the Condominium Manager. At paragraph 60 of Yu, the Court held:
“In the single instance where the police entered the common hallways without the consent of property management, this violated the s. 8 rights of the targets of their surveillance. The entry was not authorized by law.”
Even though the Manager might permit the police to enter into the hallways, that does not mean that the Manager can authorize the police the enter into a particular individual’s Dwelling Unit on behalf of the unit owner, without it being a violation of the individual’s Charter right to be free from unreasonable search and seizure.
The Court held at paragraph 93 of Yu:
“… the authority to consent to police entry does not translate into an authority to consent to more intrusive police investigative measures, such as entry into a particular condominium unit.”
The Ontario Court of Appeal recognized that the law is unsettled about whether a co-owner of the property can authorize the police to enter and search the belongings of someone else.
In a decision last year by the Supreme Court of Canada, R. v. Reeves, 2018 SCC 56 (“Reeves”), Canada’s highest court declined to decide whether a police entry into a shared home with the consent of one resident would violate the Charter rights of the other resident. The Supreme Court of Canada in Reeves left open the possibility that a co-resident could consent to a police entry into shared residential spaces. The Court recognized that on the one hand, privacy in the home is of central importance; but on the other hand, other residents may have valid interests in consenting to police entry, especially if the other residents are victims of crime.
So if a unit owner authorizes the police to enter into her Unit that she co-owns with her spouse, and the Manager authorizes the police to enter the common elements in order to access that Unit, would the police be entitled to do so without violating the spouse’s Charter rights?
In the author’s view, the next issue that will likely need clarification from the courts in this unique nexus between condominium law and criminal law, will be where the police have accompanied a Condominium Manager into a Dwelling Unit that is owned and occupied by a criminal suspect, under the condominium corporation’s right of entry powers.
Under Section 19 of the Act, a condominium corporation, or any agent authorized by the condominium, can enter into a private Dwelling Unit upon giving a reasonable amount of advance notice, “at any reasonable time to perform the objects and duties of the corporation or to exercise the powers of the corporation.”
If the police, for example, advise the Board and Manager that they believe that a Dwelling Unit is not only being used as a stash house for drug dealing (as was the case in Yu) but also for the unsafe consumption of illegal narcotics (colloquially, a “crack house”), then technically speaking, the condominium corporation is now aware that the Dwelling Unit is being used for a dangerous activity which is likely to cause personal injury, in violation of Section 117 of the Act – and therefore, the condominium corporation has a duty to enforce against such violation.
Of course, it is highly unlikely that any Manager or any Security services contractor retained by the condominium, will want to enter into this “crack house” Dwelling Unit on their own without police assistance. If the Manager authorizes the police to send in its officers on behalf of the condominium corporation to enforce compliance with Section 117 of the Act, and even provides advance written notice to the Unit’s address for service at least 24 hours in advance, are the police officers acting as agents on behalf of the condominium? If so, will the suspect’s Charter rights be violated, despite the police technically being authorized by law to enter into the Dwelling Unit under Section 19 of the Act?
That is something that future courts will likely have to consider – though likely in the context of criminal law instead of condominium law, since condominiums are not constrained by the Charter as they are private actors and not the State.
Takeaways for Condominiums
As discussed above, condominium corporations can install visible security cameras in the common elements. Condominium corporations can also install hidden surveillance cameras in the common element hallways – even if the camera also happens to capture a narrow view into the doorways of some of the Dwelling Units. Once a Dwelling Unit’s door is closed though, the condominium corporation’s right to surveil the premises using a camera ends.
Condominium corporations should consider posting signage and distributing notices to residents and owners alike, advising them that the condominium corporation may be monitoring and recording the common elements using video cameras that may or may not be visible. Doing so can help diminish the expectation of privacy amongst owners and residents; so people eventually come to expect that as soon as they open their door or exit their unit, they may be observed by the condominium.
Condominium corporations should also establish a Privacy Policy that governs the collection of any personal data from said cameras, whether visible or hidden, even if the personal data was collected unintentionally by the condominium during a targeted enforcement effort against a particular unit owner or occupant. A copy of this Privacy Policy should be posted and distributed to residents and owners as well.
Ultimately, because the “reasonable expectation of privacy” is such a multi-varied, contextual analysis that will differ on a case-by-case basis depending on the specific circumstances, a condominium corporation should consult with its legal counsel whenever the condominium is contemplating the installation of a visible security camera or a hidden surveillance camera on the common elements, and whenever the local police come knocking.
All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.
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