Part 42 published on 01/05/13
Police illegally entered onto condominium’s common elements
The Ottawa police were pursuing a drug investigation involving Mr. White and other suspects. Mr. White was later accused (along with others) of various drug-related offences. This case dealt with the admissibility of evidence obtained by search warrant. The search warrant had been obtained, in part, on the strength of evidence gained when the police entered a 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 did not enter the locker. His observations were made from the general common elements, through the outer caging of the 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 Court held that the police had no right to enter the condominium building without permission. The Court held that the search warrant, obtained on the strength of illegally-gathered information, violated the rights of the accused under the Canadian Charter of Rights and Freedoms. Therefore, all of the evidence obtained under the search warrant was ruled inadmissible.
The Court’s decision included the following:
- “I find that the accused had a reasonable expectation of privacy to the common areas of the condominium building.”
- “I find that (the detective’s) search was an unreasonable intrusion on the accused’s right to privacy.”
- “As the police did not have an implied invitation to enter the storage units’ area of the building, nor were the police in pursuit of (the suspect) at the time, the police entered the storage units unlawfully.”
In other cases, the Courts have said that there is an” implied invitation” to enter onto private property in order to approach the owner’s door (for instance, in the case of a single-family dwelling). The Court said that this implied invitation did not apply in this case.
- “A parallel can be drawn between the secured parking garage and the storage units in the condominium building as these are both areas that are secured for unit owners and require a key or some type of access card, to enter. Therefore, it is evident that by entering the storage unit in this instance, the police went beyond the limit of private property leading up to the (suspect’s) door.”
- “I find that the long-term impact on the administration of justice, by letting in evidence found in a search of a dwelling house with a warrant devoid of legally obtained grounds, would bring the administration of justice into dispute (sic). The evidence is therefore excluded.”
[Editorial Notes:
- The decision says that in April of 2012 (after the events in question), the police had met with the board of directors and “following the meeting, the residents of the condominium had authorized their board of directors to sign an authorization pursuant to the Trespass to Property Act, R.S.O. 1990, cT.21 allowing police to enter into the building in the future”.
In my view, a Board of Directors in Ontario does have the right (without any sort of authorization from the owners) to permit persons to enter the common elements, if this is in keeping with the objects and duties of the corporation. So, in appropriate circumstances, I believe that the Board can properly permit the police to enter the common elements. (Note that any resident also generally has the right to invite persons onto the property.)
2. There is the following further possibility: According to Section 19 of the Condominium Act, 1998, an Ontario condominium corporation can enter the units, on reasonable notice, to perform the objects and duties of the corporation or to exercise the powers of the corporation. If the corporation learns that an illegal activity may be occurring in a unit, the corporation may have the right, on reasonable notice to the owner, to inspect the unit (depending upon the nature of the suspected illegal activity). [Note as well that, in an emergency, reasonable notice may mean notice at the time of, or following, the inspection.] If a condominium corporation inspects a unit because of suspected illegal activity, could the condominium corporation also invite the police to participate in the inspection (if the presence of the police may advance the objects and duties of the corporation)? If so, does the notice to the owner need to mention the involvement of the police? These are tricky questions and the answers may depend upon all of the surrounding circumstances. A condominium corporation faced with such issues may wish to seek legal advice.
3. This decision also caused me to wonder about outdoor areas of a condominium. Unless signs or other structures (such as fences or gates) indicate otherwise, there appears to be an implied invitation to the public to travel on private property (including condominium common elements) as needed to reach the owner’s door. In the case of an apartment building, the owner’s door is likely the main door to the building. In the case of a townhouse condominium, the owner’s door is likely the door to the townhome. The point is that there is an implied invitation for the public to travel on some parts of the common elements and there accordingly might be no “reasonable expectation of privacy” in those areas.]