02/12/2019 – Jurisdiction Ontario
Part 69 published on 01/03/2020
Court deals with privacy and surveillance issues in relation to condominium properties
This is a criminal law case, involving questions of admissibility of evidence gathered by the police on a condominium property.
For purposes of condominium law, I summarize the key aspects of the decision as follows:
Condominium residents are reasonably entitled to expect a certain level of privacy while on the property. 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 the residents’ 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 way of camera surveillance). But any permission provided to the police must again be limited by 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.
The Court said:
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.
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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 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.
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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.