Condo common areas off limits to police snooping, top court rules
Ottawa Citizen
Andrew Seymour
08 July 2015

Police are violating the privacy rights of condominium owners if they snoop around the common areas of their buildings without a warrant or permission to be there, Ontario’s top court has ruled.

The Ontario Court of Appeal ruling comes as the court upheld the acquittal of an accused Ottawa drug dealer who was charged after Ottawa police detectives surreptitiously snuck into the man’s 10-unit condominium building three times. Once inside, they checked on Merith White’s storage locker, spied on the hallway outside his door and listened in on conversations through the poorly insulated walls.

Police used the information gathered from their forays into the common areas to obtain a search warrant for White’s apartment, which turned up 1.7 kilograms of cocaine, 6.8 kilograms of marijuana and five grams of crack. Police were led to White’s apartment by another as part of their investigation into another suspected drug trafficker. Police never told the judge who authorized the search warrant that they entered the building without permission.

The first time police entered the normally-secured building on Churchill Avenue in December 2010 they followed a postal worker in through the front door. The second and third times they entered through a stairwell door that was supposed to be locked but failed to latch properly during the winter months.

At trial, an Ottawa judge tossed out the drug evidence collected against White as a result of what the judge found to be privacy breaches. Ontario Superior Court Justice Paul Lalonde found the police were wilfully blind and had shown bad faith, and found White not guilty of possession for the purpose of trafficking and possession of property obtained by crime.

White, then 37, was ultimately only convicted of simple drug possession and given a $500 fine after police discovered less than half a gram of cocaine on him during his arrest.

On Tuesday, the court of appeal upheld the ruling, finding that those who live in multi-unit dwellings are no less entitled to the protection of privacy than those who live in single-family homes.

While condominium dwellers may have a reduced expectation of privacy in common areas, the reasonable expectation of privacy doesn’t disappear just because common areas can be accessed by neighbours or other visitors to the building, the court of appeal found.

“The home is entitled to the greatest degree of protection from unreasonable search, and in my view, the police conduct in this case had a serious impact on the respondent’s privacy rights,” the court ruled.

Federal prosecutors who sought to have the acquittal reversed argued condominium residents didn’t have a reasonable expectation of privacy. Prosecutors argued 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.”

The court of appeal disagreed.

“There is nothing ‘perverse’ about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings,” said the court. “A balance must be struck between law enforcement objectives and privacy in modern urban life.”

Ottawa lawyer Mark Ertel, who represented White at trial, said police wouldn’t dare set a foot into someone’s backyard to collect evidence without a warrant. Now condominium common areas can be treated the same, Ertel said.

“There is a reason why they put an access control on the door. It’s to control access,” said Ertel. “The Crowns and police were assuming that they had carte blanche to go in and do whatever they want.”

The police officer who entered the condominium testified at trial that it was “very common” to enter locked buildings for investigations while the lead investigator  believed police had done nothing wrong. The lead investigator also testified he visited the condominium’s board of directors following the arrest and received permission under the Trespass to Property Act to enter the building in the future.

Ertel said he anticipates police will now attempt to seek more of those blanket approvals from condominium owners to gain access to common areas without a warrant.

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