Condo Confidential: Section 8 Rights in Condominium Common Spaces

August 20th, 2015 by

With the rapid proliferation of condominium ownership and rental throughout the province, issues of privacy in the condominium context have made their way to the fore of legal discussion. In a decision released this April, the Ontario Court of Appeal weighed in on the reasonable expectation of privacy that condo owners and occupiers enjoy in the common space elements of the building.

The decision arose from the prosecution of Merith White, an owner and occupier of a condominium in a small, 10-unit building in Ottawa. As a result of a separate investigation into a suspected drug dealer, the police believed that Mr. White was a mid-level drug dealer, and that the condominium operated as both a stash-house and place of illegal business. The police then entered the building and conducted searches from common space elements on three occasions to confirm their suspicions before obtaining a warrant for the unit itself.   On all occasions, the police entered the building without the prior consent or knowledge of any of the residents of the building.

On the first occasion, the officer entered to survey the layout of the building, its entrances and exits, and made a cursory search of the defendant’s storage locker, in which he noticed a number of items he felt could be associated with a grow-op. On the second occasion, he hid in a stairwell in order to observe the suspected drug dealer actually enter and exit Mr. White’s unit. On the third occasion, the officer hid in the stairwell, observed the drug dealer enter the apartment, and overheard a conversation from within the unit he felt concerned the sale of narcotics. He observed the drug dealer leave with a package and, when the police later stopped the drug dealer, they found a large quantity of cannabis and cocaine. The police obtained a search warrant for the accused, found large quantities of narcotics in the unit, and arrested Mr. White on multiple counts of possession for the purpose of trafficking.

At trial, Mr. White argued that the three warrantless searches of the building violated section 8 of the Charter, the right to be free from unreasonable search or seizure. The trial judge agreed, finding that Mr. White had a reasonable expectation of privacy in the common space elements as a result of his ownership interest and residency in the building. Further, the trial judge found that the breach was serious, significantly impacted the accused’s Charter interests and that the admission of the evidence gleaned from the search would bring the administration of justice into disrepute. Consequently, the evidence was excluded and Mr. White was acquitted. The Crown appealed.

In dismissing the appeal, Justice Huscroft essentially agreed with the trial judge’s reasoning. He found that, given the relatively small size of the building, the use of locked entry doors and the ownership and residential interest in the building, condo owners/occupiers had a reasonable expectation of privacy from strangers, including the police, in the common space elements. The Court rejected the Crown’s argument that such a finding would turn common space into “a zone of protection for criminal activity which diminishes [occupants’] safety and quality of life.”

Having found a reasonable expectation of privacy, Huscroft J turned to the issue of whether section 8 had been violated. In short, he agreed with the trial court that it had. The three entries were warrantless, and thus prima facie in violation of s.8. The Court found that there was no statutory authority for the searches, and that in an ironic twist, such searches amounted to trespassing, a statutory violation under the Trespass to Property Act. Having agreed with the trial court that s.8 was violated, the Court of Appeal turned to the issue of the evidence. After briefly reviewing the trial judge’s reasons, the Court found no error and dismissed the Crown’s appeal in whole.

If you are the owner or occupier of a unit in a multi-unit dwelling and would like to know more about your privacy and legal rights, contact the experienced team at Devry Smith Frank LLP.

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