In a prior blog post we reviewed a decision of the Ontario Superior Court of Justice that considered whether police were entitled to install video cameras in condominium common elements in order to obtain evidence about suspect residents engaged in criminal activities.
During the course of an investigation targeting criminal gang activity, the police installed hidden video cameras in the hallways of several condominiums. Some of the cameras were installed without a warrant, but with the permission of either the condo manager, or the condo manager and board of directors. Other cameras were installed after the police obtained a warrant authorizing the installations.
The accused argued that their rights under section 8 of the Canadian Charter of Rights and Freedoms had been violated as the police investigation involved unreasonable search and seizure that was not authorized by law. They took the position that a warrant was required and that the consent of the condominium management/board was not sufficient to lawfully authorize the surveillance cameras.
The Ontario Superior Court of Justice determined that no warrant was needed to authorize the installation of the cameras in the common elements as police observations and videos of the hallway were no different than police observations and videos taken from the street or sidewalk of a free-standing house. It was also noted that many condominiums have their own video surveillance cameras installed in the common elements to enhance the security of the condominium.
” There is no reasonable expectation of privacy (or a very low privacy interest) in common areas like parking garages, lobbies, elevators and hallways, provided that police do not conduct intrusive surveillance of activities inside the apartment or condominium unit from their vantage point in the common areas.”
That decision was appealed by some of the accused. The Ontario Court of Appeal recently released its decision and came to a different conclusion about the use of hidden police surveillance cameras in condominium buildings. The Court of Appeal held that while the use of visible security cameras in the common elements by the condominium corporation may be acceptable, the installation and operation of hidden cameras by the police is not acceptable as it infringes on residents’ reasonable expectation of privacy. Furthermore, although the condominium board has the authority to cooperate with police and to consent to allow police entry onto the property, it does not have the authority to consent to the installation of surreptitious police video cameras on behalf of the residents. The police would need to obtain a warrant from a judge authorizing such installations.
“The installation of hidden cameras by the state is not something that condominium residents would reasonably expect the board to do in carrying out its management duties.”
In addition to installing the video surveillance cameras, the police in this case had also conducted physical surveillance in the underground parking garages, elevators and hallways. The police gained access to these areas without a warrant but with the permission of the condominium board or management.
The Court of Appeal concluded that “unit owners could not have an objectively reasonable expectation of privacy in a garage shared with so many other owners and over which they had very little control.” Furthermore, where the condominium parking garage also had a visitors’ section accessible to the general public, consent of the condominium board/management for police to enter the garage was not necessary as the police could enter the garage as any visitor could do.
Regarding entry into the condominium hallways, the Court of Appeal determined that residents had a low, but reasonable expectation of privacy in the condominium hallways. However, this expectation of privacy was attenuated by the authority of the condominium board/management to regulate access to the building. As the condominium corporation is entrusted with the security of the building it could validly consent to police entry into the building and its hallways. The Court of Appeal also noted that condominium visitors do not have any reasonable expectation of privacy in the common elements.
The Court of Appeal confirmed that the “only time that condominium residents should expect complete privacy is when they are inside their unit with the door closed.”
In a nutshell, here are the takeaways from the Court of Appeal decision:
- Police need a warrant to install hidden surveillance cameras in condominium common elements even if the condominium board consents to such installation, as the corporation does not have the legal authority to grant a valid consent.
- Condominium corporations can install security cameras on the common elements as long as such cameras are not hidden and not aimed at the units and residents have been informed that the common elements are under video surveillance.
- The condominium corporation can grant the police access to the parking garage, as objectively residents do not have a reasonable expectation of privacy in the parking garage.
- The condominium corporation can consent to police access to the hallways, elevators and other common elements if informed of the possibility of criminal activity in the building.
- The condominium corporation does not have any authority to consent to police access to a unit.
