Police Surveillance and Privacy Issues

In our previous blog posts titled “Privacy and the Common Elements: Are Police Surveillance Cameras Allowed on Condominium Property?” and “Are Condominium Residents Entitled to Privacy on the Common Elements?”, we addressed the concept (and limits) of privacy in condominiums and outlined some factors that condominium corporations may consider before authorizing the use of recording equipment on the property. Some of these key principles were reaffirmed in R. v. Yu, recently decided by the Ontario Court of Appeal.

The Yu case is a criminal law decision, dealing primarily with the legality of evidence-gathering by the police.  But for our purposes, the most interesting aspects of the decision are the Court’s findings respecting the rights of condominium corporations to allow evidence-gathering by the police on condominium properties.  Put simply: The Court of Appeal said that condominium corporations, in carrying out their own surveillance and in permitting evidence-gathering by the police, must respect the residents’ reasonable expectations of privacy.  The Court noted that some types of surveillance and evidence-gathering on a condominium property may go beyond the residents’ reasonable expectations of privacy (and accordingly would not be “legally permitted”).  This must be decided on a case-by-case basis and while taking the totality of circumstances into account.

In the Yu case, the Court of Appeal held that the appellants (who were residents in the buildings) did not have a reasonable expectation of privacy in the parking garages of the condominium buildings where the police investigations took place, and that they had a low but reasonable expectation of privacy in the buildings’ hallways. The Court added that the condominium corporation (at least in that case) had the right to permit police to enter various parts of the common elements in order to conduct police investigations; but the corporation (in that case) could not facilitate police entry into the units.  On these issues, the Court said:

The condominium board and, by extension, property management, were entrusted with security of the building and the residents. The appellants (residents in the building) would have reasonably expected that the property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building.

I emphasize that the authority of the condominium board and property management to regulate access to the building is just that: an authority to regulate access. As I will discuss in the context of the warrantless camera installations, 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.

Camera surveillance raises additional considerations.  But again, the Court of Appeal expressed the basic principle that camera surveillance is proper only when consistent with the reasonable privacy expectations of the residents.  On this issue, the Court of Appeal said:

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.

The Court also added some important words about camera surveillance (on a condominium property) by the police:

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.

The Court of Appeal further added the following helpful comments about the expectations of privacy in condominiums:

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. (…)

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.

I would summarize this helpful decision as follows: Condominium residents are reasonably entitled to expect a certain level of privacy while on the property.  Not surprisingly, they can expect a high level of privacy in their units (subject only to the condominium corporation’s specific rights to access the units).  Residents can expect a lower level of privacy on the common elements, which also varies depending upon the area in question.  Moreover, any camera surveillance on the common elements generally needs to be either apparent or disclosed (and should otherwise be consistent with reasonable expectations of privacy, meaning that places that are “clearly intended to be private” should not be under surveillance).

Furthermore, in many cases a condominium corporation can permit the police to gather evidence on the common elements (either by way of physical entry or by camera surveillance).  But any permission provided to the police must again be limited by these reasonable expectations of privacy and condominium corporations generally cannot consent to surreptitious recording by the police.  If the police want to go further – for instance if they want to conduct secret camera surveillance or if they wish to enter a particular unit – this would likely require a warrant.

For our other blog posts on privacy-related issues, please see here , here and here.

Stay tuned to Condo Law News to keep up to date on the latest developments in condominium law!