Part 51 published on 01/08/15
Police illegally entered onto condominium’s common elements
The lower Court held that the police had illegally entered onto the common elements of a
ten-unit condominium apartment building. The police had obtained a search warrant, on the strength of information gained as a result of the illegal entry. The lower Court ruled that all of the resulting evidence (obtained with the search warrant) was inadmissible. [See Condo Cases Across Canada, Part 42, May 2013.]
The Crown appealed the resulting acquittal of the accused. The appeal was dismissed. The Court of Appeal said:
Although (the accused, who was a resident in the condominium) did not have absolute control over access to the building, it was reasonable for him to expect that the building’s security system would operate to exclude strangers, including the police, from entering the common areas of his building several times without permission or invitation and investigating at their leisure. It was reasonable for him to assume that although access to the building’s storage area was not regulated, it was not open to the general public. And it was reasonable for him to assume that people would not be hiding in stairwells to observe the comings and goings and overhear the conversations and actions within his unit.
In any event, the fact that a relatively large number of people may have access to a building’s common areas need not operate to eliminate a reasonable expectation of privacy. It is one thing to contemplate that neighbours and their guests, all of whom may be strangers to another resident, might be present in the common areas of a building, but another to say that a resident has no reasonable expectation of privacy as a result. An expectation of privacy may be attenuated in particular circumstances without being eliminated.
….
The (Crown) asserts, but did not establish, that the searches were authorized by law because the police had an implied invitation to enter common areas of the building to conduct non-intrusive investigative steps. Although it is clear that the police, along with members of the public, have an implied license to enter a property and to knock on the door, this is for purposes of communicating with the resident. In this case, the police did not use their implied license to knock on the (accused’s) door. On the contrary, the police did everything possible to conceal their presence in the building.
In my view, the trial judge’s conclusion that the evidence obtained by the police during the three visits to the condominium prior to obtaining a search warrant was obtained by trespassing on private property is correct. The evidence of (one of the condominium’s directors) that consent to enter the building would have been granted had the police asked, cannot be relied on to provide retrospective license to the police to enter the building surreptitiously. Indeed, the action of the police in obtaining after-the-fact authorization from the condominium residents to allow the police to enter the building in the future suggests that they were aware of Trespass to Property Act concerns.
In summary, the Court of Appeal held that the search was unlawful and that the resulting evidence was properly excluded.