R. v. Salmon, 2024 ONCA 697
[17] As the appellant acknowledges, the reviewing judge implicitly accepted that he might have had a reasonable expectation of privacy in the common areas of the condo building but rejected the appellant’s s. 8 claim because the building employees who provided information to the police “ostensibly had the requisite authority to provide the information”. As such, it is unnecessary to determine whether on the evidence the appellant’s expectation of privacy in the CCTV footage was objectively reasonable. It is sufficient to explain why I reject the appellant’s argument that the police obtained information and seized CCTV footage from the condominium building without lawful authority.
[18] The appellant contends that in R. v. Yu, 2019 ONCA 942, 383 C.C.C. (3d) 260, leave to appeal refused, [2020] S.C.C.A. No. 38, this court recognized a “narrow carve-out” to the Reeves[2] expectation of privacy that permits a condo board to waive its residents’ privacy interests. He says that this carve-out must be interpreted narrowly, and that only a building employee who has the approval of the board of directors, as the persons authorized under the Condominium Act, 1998, S.O. 1998, c. 19, may waive a resident’s privacy interest. The appellant contends that Mr. McKensie Stone acknowledged in the voir dire that he did not think he had authority to release the CCTV footage, and there was no evidence that the condominium board had in fact approved its turnover to the police. When pressed by the panel to articulate exactly what was required of the police when, as here, a person with apparent authority co-operated with their request, the appellant’s counsel asserted that the police would have to ascertain in each case whether the condominium board in fact had authorized the release of the information they requested.
[19] I reject this argument. First, it proposes too narrow a reading of Yu. Second, it was a reasonable interpretation of the evidence as a whole that the building employees had the requisite authority to provide the requested information to the police, including the CCTV footage.
[20] Yu recognizes that the ability of a condo board and property management to co-operate with a police investigation by providing access to common areas of the building and other information is relevant to two issues: first, it will attenuate a resident’s reasonable expectation of privacy in common areas of the building; and second, it can provide lawful authority for a warrantless search and seizure: at paras. 72-75.
[21] It is not a question of “waiver” of a resident’s privacy interests, as suggested by the appellant, but whether an authorized person consents to entry and/or seizure on behalf of the residents of the building as a collective. In Yu, Tulloch J.A. (as he then was) referred to the duty of a condominium corporation under the Condominium Act to administer the common elements and to manage the property of the corporation on behalf of the owners, and he noted that it is the “condominium board and, by extension, property management” that is entrusted with security of the building and the residents: at paras. 91-92.
[22] Further, and contrary to the appellant’s argument, Yu does not require evidence in each case that the condominium board specifically authorized the turnover of information to the police. At para. 131, Tulloch J.A. concluded: “the board and property management have valid authority to cooperate with the police and to consent on behalf of the residents to allow police entry” (emphasis added). The case recognizes as “property management” the persons who, by reason of their position, have the authority and ability to regulate access to the building: at para. 93.
[23] I therefore reject the appellant’s reading of Yu to require (1) that there must be evidence of the actual delegation of authority from a condominium board to the individual concerned before there can be said to be lawful authority; and (2) that only persons with the specific title of “property manager” can authorize police entry into a condominium building and provide information to the police.
[24] Whether a person is “property management”, that is a person with authority to control access to a condo building, and to respond to police inquiries, is a question of fact in each case. Here, it was open to the reviewing judge to conclude, based on the evidence on the voir dire, that the information and CCTV footage the police obtained was provided by authorized persons. The police officers who attended at the building testified that they asked the security guard for the property management office, that they were directed to Mr. McKensie Stone, and that he gave them his card with his title as “senior property administrator”. They testified that they told Mr. McKensie Stone the purpose of their attendance and that he was co-operative, competent and appeared comfortable in sharing information.
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