R. v. Yu, 2019 ONCA 942
[63] For s. 8 of the Charter to be engaged, the accused person must possess a reasonable expectation of privacy: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 45. Once it is determined that the accused has a reasonable expectation of privacy, a warrantless search that intrudes on that expectation will be presumptively unreasonable. The onus is on the Crown to show that the search was authorized by law: R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at para. 30. The authorizing law must be reasonable, and the search must have been conducted in a reasonable manner: Caslake, at para. 10.
[67] I turn now to the issue of reasonable expectation of privacy in the common areas of a multi-unit dwelling. The existence of a reasonable expectation of privacy is determined against the totality of the circumstances. The Supreme Court of Canada stated in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, that the various factors in this contextual analysis can be grouped into four lines of inquiry:
1) The subject matter of the alleged search;
2) The claimant’s interest in the subject matter;
3) Whether the claimant had a subjective expectation of privacy in the subject matter; and
4) Whether the subjective expectation of privacy was objectively reasonable.
[68] This court expanded on this analysis in the context of the reasonable expectation of privacy in common areas of a multi-unit dwelling in White. The court laid out the following factors that are relevant to the level of expectation of privacy in common areas of multi-unit buildings:
• Degree of possession or control exercised over the common area by the claimant;
• Size of the building: the larger the building, the lower the degree of reasonable expectation of privacy in common areas;
• Security system or locked doors that function to exclude the public and regulate access; and
• Ownership of the property.
[69] In my view, these factors lead to different conclusions depending on the type of common area accessed by the police, which in this case relates to the parking garage and the hallways. I conclude that the appellants did not have a reasonable expectation of privacy in the parking garages, but they did have such an expectation of privacy in their hallways, albeit a diminished one. I address first what I consider to be the subject matter of the search, and then explain why I conclude that the appellants had no reasonable expectation of privacy in relation to the garages but did have a reasonable expectation in the hallways.
[70] Third party consent to the police entries – here, property management or the condominium board – is an important aspect of the “totality of the circumstances”. I note that the law on the role of third-party consent to police entries into shared residential spaces is unsettled: R. v. Reeves, 2018 SCC 56, 427 D.L.R. (4th) 579, at paras. 19-26. In Reeves, Karakatsanis J., writing for the majority, declined to decide whether police entry into a shared home with the consent of one resident would violate the Charter. Karakatsanis J. considered the validity of third-party consent to turn over a computer. She concluded that a co-resident’s consent could not eliminate the accused’s reasonable expectation of privacy in the shared computer.
[71] Karakatsanis J. left open the possibility that a co-resident could consent to police entry into shared residential spaces. She recognized that police entry into a shared home involves “competing considerations”: para. 23. On the one hand, privacy in the home is of central importance. On the other hand, other residents may have valid interests in consenting to police entry, especially if the other residents are victims of crime: para. 24. The issue before this court is analogous to the issue left undecided in Reeves, and involves similar but not identical competing considerations.
[72] The role of third-party consent in the analytical approach to police entries into shared residential spaces is similarly unclear. In this court’s decision in R. v. Reeves, 2017 ONCA 365, 350 C.C.C. (3d) 1, at para. 49, Laforme J.A., writing for the court, concluded that consent by a co-resident to police entry “is relevant as part of determining whether the police have intruded upon a reasonable expectation of privacy held by the accused”. Laforme J.A. concluded that “the inquiry is two-staged: (a) would the accused reasonably expect that his or her co-resident would have the power to consent to police entry into a common space, and (b) if so, did the co-resident actually consent?” In Laforme J.A.’s view, if the accused had the relevant reasonable expectation, and the co-resident actually consented, the accused’s reasonable expectation of privacy would be negated, and there would be no “search” in s. 8 terms.
[73] Other courts have preferred to consider the second question – actual consent – on the issue of whether the search was authorized by law, rather than as negating the accused’s reasonable expectation of privacy: R. v. Clarke, 2017 BCCA 453, 357 C.C.C. (3d) 237, leave to appeal refused, [2018] S.C.C.A. No. 65; R. v. R.M.J.T., 2014 MBCA 36, 311 C.C.C. (3d) 185.[2]
[74] For the purposes of this case, it is unnecessary to decide whether the actual consent of condominium management is taken into account in assessing the appellants’ reasonable expectation of privacy, or whether the police entries were “authorized by law”. Both before this court and the application judge, the appellants’ primary argument was not that the condominium board could never consent to police entries into common areas. Instead, they argued that there are limits to the board’s ability to consent, that only the board, and not property management, could give valid consent, and that the consent given in this case was invalid for various reasons.
[75] I will proceed on the basis that the possibility of consent affects the appellants’ reasonable expectation of privacy, while any actual consent provides legal authorization for the search, as this is effectively how it was discussed by the parties.
a) The Garage Entries Do Not Engage s. 8 of the Charter
[78] The bulk of the police entries at both Joe Shuster Way and Western Battery Road were into the parking garages. As this court held in R. v. Drakes, 2009 ONCA 560, 252 O.A.C. 200, leave to appeal refused, [2009] S.C.C.A. No. 381, none of the appellants had a reasonable expectation of privacy with respect to the parking garages.
[79] In Drakes, this court upheld the finding of Epstein J. (as she then was) that condominium unit owners did not have a reasonable expectation of privacy with respect to the use of a spot in the underground parking garage. It reasoned that the unit owners shared the parking garage with 440 other units and had limited control over it, and that management consented to the police gaining access (at para. 18). In short, to put it in terms of the factors set out in Spencer, unit owners could not have an objectively reasonable expectation of privacy in a garage shared with so many other owners and over which they had very little control.
[80] Similarly, the parking garages in both Joe Shuster Way and Western Battery Road were large, and the appellants had limited control over them. The Western Battery Road garage had a visitors’ section that was accessible to the general public. As explained below, the police obtained consent before all prolonged surveillance in the Joe Shuster Way garage. While there is insufficient evidence of consent in relation to Western Battery Road, such consent was not necessary as the police generally entered the visitors’ section to determine whether a target’s car was parked in the garage or not, which they were entitled to do as any visitor could do. The appellants had no reasonable expectation of privacy regarding observations made from a space accessible to the general public. Even if the appellants had a subjective expectation of privacy in the garage, that expectation was not objectively reasonable.
b) Hallway Entries Engage s. 8 of the Charter
[81] The hallways are a different story. Under the White framework, in my view, the appellants had a reasonable expectation of privacy in the hallways of their respective buildings, although it was at the low end of the spectrum. White establishes that a contextual approach is required when applying the reasonable expectation of privacy analysis, and there is no categorical bar to a reasonable expectation of privacy in shared common areas.
[82] Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside, but there is some level of control over who enters the building.
[83] The level of expectation of privacy inside a condominium building will vary. The level of expectation of privacy is dependent on the likelihood that someone might enter a certain area of the building, and whether a person might reasonably expect a certain area to be subject to camera surveillance.
[84] Some areas of condominium buildings are routinely accessed by all condominium residents, such as the parking garage or elevator lobby. The level of expectation of privacy in those areas is low, albeit remaining greater than would be expected outside of the building. The level of expectation of privacy increases the closer the area comes to a person’s residence, such as the end of a particular hallway of a particular floor of the building. Even in those less-frequented areas the level of expectation of privacy is low, but not as low as in the more commonly used areas.
[85] 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.
[86] 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.
[87] On balance, the factors listed above establish a low, but reasonable expectation of privacy in these common areas. The buildings had strict security features designed to exclude outsiders, and the condominium rules at Joe Shuster Way barred non-owners and non-occupants from accessing the common areas unless accompanied by an owner or occupant. It was thus reasonable for the appellants to believe that the buildings’ security systems would operate to exclude the police from entering the common areas of the building multiple times without permission. At the Joe Shuster Way building, security cameras are installed in the lobby, the ramp to the parking garage, at the elevator lobby, and in the elevators – but not in the hallways outside units. The appellants had some limited reasonable expectation of privacy in those areas.
[88] This case is distinguishable from cases such as R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A.), and R. v. Thomsen, [2005] O.J. No. 6303 (S.C.), aff’d 2007 ONCA 878, where the court found no reasonable expectation of privacy in the hallways of multi-unit buildings. Notably, in Thomsen, the police were responding to a complaint made by the building’s management about the smell of marijuana in the hallways, so had been expressly invited to the premises by management. In Laurin, the building was accessible to the general public, unlike the buildings here.
[89] However, the appellants’ reasonable expectation of privacy in these areas was low. Both condominium buildings in this case were much larger than the ten-unit building in White. Each had over 300 units. The police observations in this case – the subject matter of the search – were also narrower. Unlike in White, the officers did not make or attempt to make any observations about things happening within the units or enter private areas such as storage lockers.
[90] Further, given the context in which the condominium operated, the appellants would have reasonably expected that the board, and by extension, property management, could consent to police entry.
[91] The condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners: Condominium Act, 1998, S.O. 1998, c. 19, ss. 17(1), 17(2). The board is elected by the owners to manage these affairs in their best interests: ss. 27-28. This statutory duty can be understood as conferring a responsibility and authority on the board to act as the decision maker for the owners as a collective.
[92] The condominium board and, by extension, property management, were entrusted with security of the building and the residents. The appellants would have reasonably expected that the property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building.
[93] 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.
[94] Accordingly, the appellants’ expectation of privacy with respect to the common areas is further reduced given the possibility that property management could consent to police entry. The appellants had a reasonable expectation of privacy, albeit on the low end of the spectrum.
[123] It is well established in Canadian law that surreptitious state recording is highly, if not uniquely, invasive of individual privacy. In R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, the Supreme Court of Canada recognized that permitting permanent recording can diminish privacy to an extent inconsistent with the aims of a free and democratic society: Wong at p. 46. It stressed that permitting the state to use “hidden cameras” without authorization is “fundamentally irreconcilable” with acceptable state conduct: Wong, at p. 47. The court’s conclusions in Wong paralleled its warnings in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, about the dangers of unauthorized audio recording by the state. Recent Superior Court of Justice decisions in Ontario have also accepted that a reasonable expectation of privacy exists in common areas of condominium buildings in respect of hidden camera recordings: R. v. Hassan, 2017 ONSC 233, and R. v. Batac, 2018 ONSC 546, 402 C.R.R. (2d) 252.
[124] As the application judge observed, condominium residents may, on occasion, be subjected to video surveillance from cameras installed by the property management in common areas of their buildings, and these inconveniences are to be expected. Indeed, there were such cameras in some locations of the common areas of Joe Shuster Way. It does not follow that residents would reasonably expect to be secretly recorded by the state. Both the fact that the camera was hidden and that it was installed and operated by police distinguish it from regular security cameras. The appellants have different expectations of privacy in these different situations.
[125] First, Wong stresses that observation by state agents raises different concerns than observation by other private actors: pp. 46-47, 53. While it might be arguable that condominium residents could not reasonably expect that building management would be unable to share with the police video recordings from cameras that management had installed for its own purposes, it does not follow that residents would reasonably expect building management to permit the police to install cameras for the police’s own purposes.
[126] 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.
[127] Condominium residents expect the board to reasonably cooperate with the police as part of the board’s duty to manage common areas in the residents’ collective interest. This expectation does not give the board free reign to consent to all manner of police investigative steps in the common areas of the building, no matter how intrusive.
[128] Second, as the appellants argue, the evidence before the application judge was that surveillance cameras installed by condominium management are generally visible. As the appellants submit, while residents expect to be under surveillance by the visible cameras installed by management, they do not expect to be under surveillance by “hidden cameras,” much less hidden cameras installed by the police.
[129] Furthermore, the nature of the information the police were seeking engaged heightened privacy interests. As the appellants put it, the camera never blinks. Continuous surveillance over an extended period of time reveals more personal information about its subjects than do discrete and purpose-oriented individual entries. By the point the cameras were installed, the police had already determined where Mr. Mai resided, and were now pursuing information about who he associated with, and his living patterns in terms of when and how often he frequented the unit. As the application judge noted, this evidence had “considerable probative value” because it revealed the frequency of Mr. Mai’s attendance at the unit, what he was carrying with him when he came and went, and which persons he associated with.
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