In a decision released on December 2, 2019, the Court of Appeal for Ontario has confirmed that condominium corporations cannot allow the police to place hidden cameras in common areas without a warrant. The case is an interesting read in respect of balancing the privacy expectations of residents with effective property management.
In R. v. Yu, 2019 ONCA 942, the Court of Appeal was tasked with hearing appeals concerning the constitutionality of investigative techniques employed by the police. At issue were the terms upon which the police entered the common areas of multi-unit 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, 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 as a violation of their right to be secure from unreasonable search or seizure, pursuant to Section 8 of the Charter of Rights and Freedoms.
The Court of Appeal held that the vast majority of the pre-consent, warrantless, police entries into the common areas did not violate s. 8 of the Charter. However, the Court 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 this 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.