R. v. White, 2015 ONCA 508
[43] If the police are entitled to climb through windows to gain entry to multi-unit residential buildings and, once inside, enter common areas such as storage rooms, hide in stairwells and conduct surveillance operations for as long as they want on those who live there -- all without a warrant -- on the basis that those who live in these buildings have no reasonable expectation of privacy in the common areas, then the concept of a reasonable expectation of privacy means little.
[44] It is clear that lower courts have rendered decisions rejecting reasonable expectation of privacy claims in several cases involving the common areas of multi-unit buildings: see, e.g., R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.); R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), revd on other grounds [2007] O.J. No. 4510, 2007 ONCA 793, 231 O.A.C. 19; R. v. Nguyen, [2008] A.J. No. 1361, 2008 ABQB 721, 462 A.R. 240, affd [2010] A.J. No. 495, 2010 ABCA 146, 477 A.R. 395; and R. v. Verrett, [2013] A.J. No. 1237, 2013 ABQB 658, 574 A.R. 212. But the lesson from Edwards is that the reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive. The Edwards factors must be considered as a whole, having regard to the particular circumstances of each case.
[45] A resident may have possession or control of the common areas of a building to a greater or lesser extent. The size of a building may be a relevant consideration in determining reasonable expectations of privacy, as even in the context of a locked building protected by a security system it is reasonable to [page44 ]assume that the number of people that may be present in the common areas of the building will vary in accordance with the size of the building and its population. Ownership of the property may be of greater or lesser significance for the same reason. A resident of a large building with 200 units may have a lesser expectation of privacy than a resident of a small building with two apartments.
[46] In this case, the respondent owned a unit in a relatively small building that Detective Redmond testified had only ten units over four floors. The building was small enough that Detective Hill had to hide, otherwise his presence as a stranger in the building might have been noteworthy. It was small enough that, from the stairwell, Detective Hill could overhear conversations taking place in the respondent's unit and identify specific sounds connected to activities going on in the apartment (such as the unrolling of packing tape). And, save for the malfunctioning north stairwell door, the building was always locked to non-residents.
[47] Although the respondent 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.
[48] 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.
[49] The appellant submits what it describes as a strong policy justification for finding that there was no reasonable expectation of privacy. Noting that an ever-increasing number of Canadians live in multi-unit buildings, the appellant contends that it would be perverse to make the common areas of their homes "a zone of protection for criminal activity which diminishes their safety and quality of life". [page45 ]
[50] I think this overstates things considerably. The reasonable expectation of privacy does not establish a zone for the protection of criminal activity in the common areas of multi-unit buildings, but neither does it permit the police to enter common areas of those buildings at any time and for any reason. The reasonable expectation of privacy is a concept which protects those interests that courts think ought to be protected having regard to the interests at stake in particular circumstances: R. v. Tessling, [2004] 3 S.C.R. 432, [2004] S.C.J. No. 63, 2004 SCC 67, at para. 42. Some limits on police activity are necessary if privacy is to be protected.
[51] There is nothing "perverse" about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life. Cases such as Laurin and Thomsen demonstrate that the police have considerable ability to investigate crime in multi-unit buildings. But they do not have carte blanche.
[52] In my view, the trial judge's conclusion that the respondent had a reasonable expectation of privacy in the common areas of his condominium building is correct. It follows that Detective Hill conducted a search when he entered the respondent's building surreptitiously on December 10, 2010, January 20, 2011 and January 21, 2011.
[53] Before proceeding to the trial judge's s. 24(2) analysis, I analyze whether the trial judge erred in finding that the three searches conducted by Detective Hill violated the respondent's right to be secure against unreasonable search and seizure under s. 8 of the Charter.
[54] To be constitutionally compliant, a search must be authorized by law; the law authorizing the search must be reasonable; and the search must be carried out in a reasonable manner: R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, at p. 634 S.C.R.
[55] The three searches by Detective Hill were conducted without a warrant and so are prima facie unreasonable: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 30. It is not argued that this is a case of exigent circumstances. Nor is this a case in which the police were responding to a complaint.
[56] The appellant 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 [page46 ]conduct non-intrusive investigative steps. Although it is clear that the police, along with members of the public, have an implied licence to enter a property and knock on the door, this is for purposes of communicating with the resident. In this case, the police did not use their implied licence to knock on the respondent's door. On the contrary, the police did everything possible to conceal their presence in the building.
[57] 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 Zoë Gillespie, that consent to enter the building would have been granted had the police asked, cannot be relied on to provide retrospective licence 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.
[58] Even assuming that the police entered the building pursuant to an implied licence, the appellant would have to establish that the searches were conducted reasonably. In my view, it would also fail at this step. Detective Hill did not simply walk through the hallways of the building. He took advantage of defects in a security system in order to enter the building and conduct surveillance. He hid near the respondent's unit in an attempt to eavesdrop or witness something. The building was so small and the insulation was so poor that he was able to overhear conversations and activities in the respondent's unit from the stairwell.
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