( Disponible en anglais seulement )
A condominium resident (the “Appellant”) was recently charged and convicted of various drugs and firearms offences in the case of R. v. Salmon. He subsequently appealed his conviction and brought an application to exclude evidence. The basis of the application was Section 8 of the Canadian Charter of Rights and Freedoms, which protects individuals against unreasonable search and seizure.
During the investigation, the police attended the condominium building and spoke to security and the property administrator. At that time, the property administrator:
- Advised the police that two parking passes had been issued to the appellant;
- Advised the police that the appellant was a registered tenant and provided a copy of the lease to the police; and
- Provided police with security footage that showed the appellant in the elevator and otherwise on the common elements.
The appellant contended that the surveillance footage should be excluded as the Appellant had a reasonable expectation of privacy.
The case discussed the waiver of a resident’s expectation of privacy. Specifically, whether the property administrator had the authority to waive the Appellant’s reasonable expectation of privacy. The Appellant argued that the police were obligated to ascertain whether the condominium board had authorized the release of information. The Court rejected this argument.
First, the Court held that the building employees (in this case the property administrator) had requisite authority to provide the requested information including the surveillance footage. While the property administrator questioned their own authority, they testified that they believed that the property manager could have authorized the release of such information. The Court appeared to lump the property administrator and property manager into the same category.
An older case (R. v. Yu) recognizes the ability of a condominium board and property manager to cooperate with a police investigation by providing access to the common areas. Moreover, persons’ reasonable expectations of privacy while on the common elements is measured on a sliding scale (i.e., context matters). A person will have less expectation of privacy in the lobby, parking garage and elevators, than in areas closer to their unit.
The Court stated that property management is an extension of the condominium board, which is entrusted with the security of the building and the residents. Therefore, property management has the authority and ability to regulate access to the building and to provide the requested information to the police.
Considering the above, security or property administrators or superintendents, should always communicate and seek instruction from property management. Ultimately, property management has the authority to make decisions relating to the release of information or video surveillance. That said, it likely makes good sense to communicate with the board and seek direction, if possible. As part of these requests, the property manager is fulfilling the Corporation’s duty under the Condominium Act, 1998 to administer the common elements and to manage the property of the corporation on behalf of the owners.
Balancing the privacy interests of residents and assisting a police investigation can be a difficult act. From simple requests for information to requests to install video surveillance cameras, property managers should not always feel rushed to make decisions. Consult the board or legal counsel if unsure. Nevertheless, there is value in protecting your community and assisting the police in their investigation. Additionally, the Personal Information Protection and Electronic Documents Act provides a number of exceptions to the general sentiment that personal information should not be disclosed to third parties including the following:
- If the request is accompanied by subpoena, warrant or court order (the Corporation would be obliged to provide the personal information if any of the foregoing documents were produced);
- Where there is no warrant, if the request pertains to an investigation of a contravention of the laws of Canada or Ontario that has been, is being, or is about to be committed; and
- If the request pertains to an emergency that threatens the life, health or security of an individual.
Should you have any questions, please do not hesitate to reach out to a member of Miller Thomson’s Condominium & Strata group.
