Ontario Court of Appeal Rules That Condominium Owners Are Entitled to a Reasonable Expectation of Privacy in the Condominium Building

In the recent case of R v. White, the Ontario Court of Appeal considered whether or not residents in condominiums are entitled to a reasonable expectation of privacy.

This was an appeal from a decision by the trial judge to acquit Mr. White on a series of drug-related offences because the trial judge found that the evidence on which the warrant was based had been obtained in breach of White’s constitutional rights. The primary question on the appeal was: To what extent did the accused have a reasonable expectation of privacy in the common areas of his condominium building?

Mr. White co-owned a unit in a 10-unit condominium apartment building. One of the police detectives entered the condominium building, without anyone’s permission, by following a postal employee who was entering the building to deliver mail. Once inside the building, the detective traversed the common element corridors and stairs and arrived at the basement, where he was able to observe some of the contents of Mr. White’s caged locker.

The detective entered the building on a few more occasions, again without permission, to observe the activities of a second suspect who was visiting Mr. White’s apartment. On the last occasion, the other suspect left Mr. White’s apartment carrying a box. He was later apprehended by police and the box was found to contain cocaine and marijuana.

Partly on the strength of the foregoing information, the police obtained a search warrant for Mr. White’s condominium unit and for two other properties. Those searches revealed numerous pieces of evidence relied upon by the crown in the criminal process.

The trial judge held that the police had no right to enter the condominium building without permission. As a result, the search warrant, which was obtained based on the strength of the illegally gathered information, violated the rights of the accused under the Canadian Charter of Rights and Freedoms.

The Court of Appeal upheld the trial judge’s decision and reconfirmed that condominium owners have reasonable expectation of privacy within the common areas of their condominium building. The Court stated:

I accept that the reasonable expectation of privacy may be attenuated in the context of multi-unit buildings, where common areas including hallways, stairwells, and storage rooms are shared by the residents, but as I have said, the reasonable expectation of privacy does not disappear. Those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single family homes, albeit that the nature and extent of the expectations of privacy that they might reasonably hold may differ.”

In addition, the Court of Appeal stated that the reasonable expectation of privacy is a contextual analysis – the smaller the building, the higher the reasonable expectation of privacy.

What does this mean for your condominium? If police are conducting an investigation that involves entering onto the common elements of a condominium, the Corporation may receive a request for permission to enter onto the property from the police. The Corporation will then face the dilemma of having to decide whether or not to grant law enforcement authorities access to the common elements so they can carry out investigations that may or may not be directly related to condominium affairs.

In appropriate circumstances, the Board can properly permit the police to enter onto the common elements. However, whether to grant permission will need to be assessed on a case-by-case basis.