Comment apprécier la remise d'information d'un gestionnaire de condo à l'attention de policiers / l'expectative de vie privée dans les aires communes

R. v. Webster, 2015 BCCA 286

Lien vers la décision

[69]        I tend to agree with the Crown.  Objectively, the appellant had, at best, a limited expectation of privacy.  The document was in the hands of a third party.  By statute some people were entitled to the information.  I see no reason why the police could not ask for it.  The building manager was quite free to refuse the request, although the lead investigator ostensibly may have had a right to the information.

[70]        It is surmised that the building manager knew the lead investigator was a police officer and that he was investigating the appellant, but we do not know what was in the mind of the building manager.  In my view, merely complying with a request for the provision of information in his possession does not make the building manager a state agent.

[71]        The appellant contends that the police should have obtained a production order pursuant to the Criminal Code.  Without deciding the point, it seems to me that such orders are directed more at providing protection and a measure of comfort to the holder of records than at limiting the ability of police to ask for information in the hands of third parties.

[72]        I would not accede to the appellant’s second ground of appeal.

Common Area of the Building

[76]        In my view, the issue is not how secure the building was, but how exclusive occupation of the common areas was.  The evidence was that members of the public generally, and tradespeople in particular, regularly were in the common areas:

Q         Okay.  The whole point being, that you expected your unit to -- and the premises surrounding your unit and the corridors, not to be open to members of the general public.  Correct?

MR. BURNETT:  Well --

A         I expect that members of the general public, being if they are visitors or guests --

MR. SMITH: 

Q         Yes.

A         -- of -- of someone else in that building.  There are workers in that building, there are cleaning staff in that building, there’s landscaping staff in that building.  All of those people, to me, are members of the general public; and, yes, I expect them to be in the hallways and common areas and parking garages.

Q         Sure.  Obviously let in by the management, right?

A         Or someone that is -- resides at that building
or --

[77]        I conclude that there was ample evidence to support the judge’s finding that “common areas of this particular residential complex were fairly accessible to the public….”  In my view, she was correct in concluding that the appellant did not have a reasonable expectation of privacy in the common areas of the building and that a warrant was not required for the police to enter.