[updated as of December 11, 2019]
Condominium corporations have a responsibility to protect the privacy of their residents and unit owners. They also have an obligation to prevent danger and to keep people and property reasonably safe pursuant to the Condominium Act, 1998 and the Occupiers’ Liability Act, 1990. At times, these two duties can be in conflict. This conflict is never more acute than when police become involved with a condominium corporation.
There are generally four types of police activity in condominiums that property managers and directors will encounter:
1. Where police attend the condominium site in conjunction with an ambulance attendance, fire department call or a death on the condominium property.
This is the simplest circumstance and clearly attendance must be granted. Attendance by police in these circumstances is normal police protocol.
2. Where police have a warrant or an assistance order.
Warrants and assistance orders have the same legal validity.
When approached by a police officer with an assistance order/warrant (“Order”), you should first ask the police officer to identify themselves. Make sure to see a badge and note the badge number.
Next, read the Order carefully and, if possible, make a copy. If the Order is an assistance order or search warrant – what areas are the police seeking access to and who is required to provide assistance? If the Order is an arrest warrant – who are they seeking to arrest? Make sure that the address and any name on the Order is accurate. If any part of the Order is inaccurate, send the police back to get a correct Order.
If there is any confusion about whether or not you must comply with an Order you have received, we recommend that you tell the police officer that you want to cooperate, but must seek legal advice before doing so. Often times Orders are ambiguous and require legal interpretation. For instance, a condominium corporation may be presented with an Order requiring anyone who has “control” of a unit to provide the police access to that unit. The condominium corporation may have a key to the unit, but does that mean that the condominium corporation is in “control” of the unit? Arguably, since the condominium corporation does not own the unit, it does not have control of the unit. In such a circumstance, out of an abundance of caution and to ensure that the corporation will not incur liability, we would recommend asking the police to obtain a new Order specifically requiring the condominium corporation to provide access to the unit in question or to provide the police with a copy of the key to the unit.
Requiring the police to have an accurate Order serves everyone’s interest. If the Order contains a mistake and a property manager or board member lets the police exceed the authority in the Order, any evidence collected from this search may be discarded in court. Then, everyone loses. The police’s work will have been ineffectual, the residents may return to sharing their living space with a disreputable character and the police, property manager and board will need to start from scratch in dealing with whatever problem may have given rise to the Order in the first place. Most importantly, if the corporation inadvertently allows police activity beyond the authority in the Order, then there is a material risk of civil liability via a claim from a resident/owner whose privacy was violated.
In covert surveillance circumstances, confidentiality of the Order is often a provision in the Order. This means that if the order says that the manager or anyone else cannot advise the board members of the Order, then the manager must comply.
3. Where police do not have a warrant or assistance order, but attend at a time when there is a crime being committed or about to be committed.
If the police arrive at the property without a warrant but with a concern of imminent damage to the building or injury to any persons, the board or property manager must decide whether the risk of harm to the residents in the time that it will take for the police to obtain a warrant and/or to consult with the corporation’s lawyers outweighs their privacy concerns. In other words, a judgment call must be made, and access must be provided to the police if there is a genuine concern of imminent damage to the property or injury to individuals on the property.
4. Where police do not have a warrant or assistance order and are requesting information about a unit owner or resident or are requesting permission to surreptitiously surveil the common elements or a unit in person or with cameras.
In this situation, the police do not have a warrant and there may be no crime being committed – the police only approach the condominium corporation to ask questions and carry out an investigation or install cameras. The condominium corporation must be cautious not to grant permission except in certain circumstances.
According to the Personal Information Protection and Electronic Documents Act, 2000 (PIPEDA), personal information means “information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.” PIPEDA prohibits the release of personal of information to third parties, including the police.
However, PIPEDA does outline some exceptions to this rule. In particular, a condominium corporation may disclose information to a police officer if the police officer has reasonable grounds to believe that the information will help in the investigation of a crime. This request must satisfy certain criteria in order to protect the condominium corporation against a privacy complaint or civil liability. Every case has its own circumstances. The Important issue to note is that requests for access by the police may be granted in the right circumstances. Always seek legal advice if you are unsure.
Most importantly, ask for the request for information or documents to be provided in writing. The request should be on police letterhead and should include the requesting officer’s name and badge number. There should be a statement that the request is being made in conjunction with an investigation relating to the enforcement of a law and, if possible, the specific law being enforced or the crime under investigation. It should also contain a statement that the police officer has the lawful authority to obtain the information. The letter should contain as much other information as possible, such as the name of the person under investigation. The letter should also enumerate the documents and information pertaining to the request. The condominium corporation should disclose only those documents enumerated in the written request.
The condominium corporation may choose to disclose personal information to the police in response to this type of request, or the condominium corporation may refuse to disclose. Police asking for information from a condominium corporation is akin to a police officer approaching an individual on the street to talk about his or her neighbour. There is never any obligation to speak to the police without a warrant. On the other hand, anyone may choose to respond to a police officer’s questions.
If the Condominium Corporation Wants to Allow Cameras or Disclose Information to the Police on its own Initiative
If anyone is worried about the safety of themselves or of another individual, it goes without question that he or she should never hesitate to call the police.
It is important to always use common sense when the police and the condominium corporation meet. Condominium boards and property managers should take seriously both their responsibility to safeguard residents’ and owners’ reasonable expectation to privacy and their responsibility to ensure the safety and security of the condominium and its residents.
Case Law Considerations
In R. v. White, 2015 ONSC 508 (“White”) the police entered the condominium corporation without consent by following a postal worker into the building and using an unlocked door. The police did not request the property manager’s consent, nor the consent of the board. Additionally, it was noted that the condominium corporation in this case was a four-storey building with ten units and, as such, the residents’ expectation of privacy was higher than in a condominium corporation with hundreds of units.
The court in White referenced lower court decisions that held there is no expectation of privacy on common areas of multi-unit buildings, but did not support that those decisions were fit for all. It was held that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, including the size of the building.
In R. v. Brewster, 2016 ONSC 8038 (“Brewster”) the police made two different requests to the property manager. The first request was whether the police could access the common elements. The second request, received at a later date, was whether the police could install surveillance cameras in the common element hallways. The property manager consented to the first request without consulting the board. In regards to the second request, the property manager did consult with the board and a majority of the board approved the installation, subject to the police incurring all costs with such installation.
The authority of the property manager to permit the police to surveil on the common elements was questioned by the applicant, arguing that the property manager could not have unilaterally consented to the police presence. The court held that the property manager did have the authority to provide consent as their role in the condominium corporation is to manage the site – e.g. it was part of, or in the alternative, was captured within, the property manager’s job description.
Additionally, the court held in Brewster that, because the corporation itself already had security cameras of its own installed on the common element hallways, the residents’ expectation of privacy was diminished. Therefore, the residents’ privacy rights were not violated. One’s right to privacy is only engaged behind the closed door of a dwelling.
The Brewster case did not refer to the White case.
According to the Superior Court level decision in Brewster, the police can surveil the common elements under two circumstances: (i) consent was received from property management and/or the board; and, (ii) with judicial authorization. However, it is significant to note that the Court of Appeal did not fully agree with the scope of the condominium management’s authority as set out by Superior Court. In its decision released on December 2, 2019, the Court of Appeal has confirmed that condominium corporations cannot allow the police to place hidden cameras in common areas without a warrant.
In the appeal decision, titled as R. v. Yu, 2019 ONCA 942, the Court of Appeal was tasked with hearing appeals concerning the constitutionality of the investigative techniques employed by the police. Specifically at issue were the terms upon which the police entered the common areas of the buildings, and the installation of hidden cameras in the hallways outside the condominium units of some of the targets of the investigation.
In the course of the investigation, a judge had issued a warrant allowing the police to enter onto the common areas of a number of condominium buildings, and to install a hallway camera in one of the buildings. However, as noted in the discussion about the Superior Court decision above (R. v. Brewster), prior to the issuance of the warrant, the police had already accessed common areas of the buildings and had installed hidden hallway cameras in some of the buildings, both with and without the consent of condominium management. The appellants challenged the warrantless entries into the common element areas and the warrantless placement of hidden cameras in the hallways.
The Court of Appeal did take issue with the placement of hidden hallway cameras prior to the issuance of the warrant. The Court drew a distinction between different types of common areas, and specifically the different expectations of privacy within a common space such as a parking garage versus a hallway. The Court concluded that the appellants did not have a reasonable expectation of privacy in the parking garages, particularly where observations were made from a space accessible to the general public, but they did have an expectation of privacy (although somewhat diminished) in the hallways of their respective buildings. The Court noted that once inside an access-controlled condominium building, residents are entitled to a degree of privacy greater than what could be expected when approaching the building from outside, as there is some level of control over who enters the building. It was recognized, however that there will be a varied expectation of privacy while inside the building, depending upon the area. While some areas of condominium buildings are routinely accessed by all residents and may be subject to camera surveillance (such as a garage or lobby), the level of expectation of privacy increases, the closer one gets to his/her unit. The Court stipulated that the expectation of privacy near to one’s unit, while still low, is not as low as in the more commonly used areas. In discussing the scope of a resident’s expectation of privacy, it is of note that the Court did confirm that the only time a condominium resident should expect complete privacy is when he/she is inside the unit, with the door closed.
The Court confirmed that in accordance with sections 17(1) and 17(2) of the Condominium Act, the condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. This statutory duty was noted to bestow a responsibility and authority on the board to act as the decision maker for the owners as a collective, and further to ensure the security of the building and the residents. Accordingly, it was found that the appellants, as residents of the building, should have reasonably expected that the property manager would consent to police entry into the building and its hallways, especially if management was informed of the possibility of criminal activity within the building. However, the Court distinguished the authority to regulate access to the building from the authority to consent to more intrusive police investigative measures, such as entry into a unit or the installation of hidden cameras. Writing for the majority of the Court, Tulloch J.A. stated:
“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. This expectation does not give the board free reign to consent to all manner of police investigative steps in the common areas of the building, no matter how intrusive”.
Accordingly, an important take away from this case is that while the board and property management have valid authority to cooperate with the police, said authority is not unlimited. Condominium management must always operate under a standard of reasonableness.
The Court also distinguished between types of camera surveillance, noting that in this case, the fact that the cameras were both hidden and operated by the police, distinguished it from the security camera surveillance routinely used in condominiums. The once gray-area of the intersection of privacy and cameras has now been made clear, with Tulloch J.A. noting as follows:
“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”.
In line with principles set out in the Court of Appeal decision, we recommend that every condominium corporation have a clear policy with respect to the use of surveillance cameras on the premises. The policy should set out the rationale and purpose of the cameras, and provide a set of guidelines and procedures for the board and the condominium corporation’s staff to follow. Additionally, the fact that cameras are used in common areas must be clearly communicated to all owners and residents. A notice should be sent to all owners and residents, and a permanent sign should be placed in the lobby and mail room. In order to adequately address all issues that may arise, we recommend that the notice clearly state where cameras are located, and also warn that every portion of the common elements may be monitored by a camera. This will help to ensure that all owners and residents understand that when they exit a closed unit, there is a clearly diminished expectation of privacy. We do caution that if cameras are installed in areas such as hallways, they must be visible, and be positioned to ensure that the viewing range does not capture the inside of any unit.
Preparation, Preparation, Preparation
The best course of action is to consider all of these scenarios before they arise. Condominium corporations benefit greatly from well thought-out privacy policies. These policies help guide and inform property managers and condominium corporation boards about when to disclose information to police or other third parties. Clear privacy policies will also make residents and owners aware of when their information might be disclosed to third parties and clarify expectations about privacy.
If you are unsure about how to proceed when approached by the police, you should always consult with your legal counsel for circumstance-specific legal advice.