Does the accused have a reasonable expectation of privacy in the common areas and storage areas of a condominium?

R. v. White 2013 ONSC 1823 – this case focused on a Charter application for violations of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.  The applicant submitted that police, prior to obtaining the search warrant, trespassed on the property to gather information, contrary to s. 8 of the Charter.  The trespasses occurred by a police officer to the common areas of the building and storage units.

The doors giving access to the condominium building were supposed to be locked at all times but, as they were old, they became stiff in the winter which prevented them from latching properly.  As a result, they were often not closed properly by the resident.  A tracker warrant had been obtained and had been successfully installed on a vehicle in relation to a drug investigation project and in tracking this vehicle, it led the detective to the particular building in question, where it was suspected that one of the suspects was keeping his stash of illicit drugs.

The detective entered the main door of the 10 unit condominium building by following a postal employee that was entering the building to deliver mail to mail boxes next to the entrance.   The detective walked through the corridors of the building and entered a door that led to the basement that housed caged lockers identified by tags identifying unit members. He found a locker for one unit that he suspected was the applicant’s.  He could see through the fenced locker that there was a 3.5 feet cylindrical filter, blower fan, hoses and suitcases. These were items that the detective felt, from his experience in dealing with drug investigations, could be used in a grow-op operation.   The detective stated that he did not touch anything, took no photographs and did not install any technical devices whatsoever. He spent approximately 20 minutes in the building. He said that he had not obtained permission for his walk through.  He stated that entering buildings without permission was often done in his experience when performing illicit drug investigations.

Later in the investigation, the detective testified that while tracking the first suspect and suspecting that he was going to the condominium building, he had raced ahead and entered the building, again without permission. He hid in the south stairwell at the third floor level and saw the suspect enter a particular unit.  On the day the investigation ended, the detective stated that he had entered the building, again through a side door that was not properly closed. He said that he saw the suspect enter the same unit and he saw this through a window on the fire door outside the third floor where he was hiding. He said that he heard screeching sounds similar to the sounds made by packing tape being pulled off a roll. He recalled thinking that there was poor insulation in the building as he could hear voices through the fire door. Although he could not hear all the conversation, he stated that he felt that a drug deal was being discussed.

The detective remained in the building until the suspect left carrying a white and blue box. He stated that he had had no conscious thought about the legality of what he was doing. He did not consider that he was trespassing as he was simply doing what he has done on many other occasions in the course of his investigations. He claimed that his purpose for entering the building was to find out if the suspect was taking in or removing some object. He stated that drug traffickers often use more than one unit in a building.  The detective testified that, after he left the building, he followed the suspect’s vehicle, as did other members of the surveillance team. They followed him to a Mall where the suspect unloaded the box from his vehicle into a minivan. This minivan was followed to a point along a highway and was then pulled over. He explained that the blue and white box taken out of the minivan was the same box he had seen the suspect remove earlier from the building and then removed again from his car to the minivan at the Mall.  The detective testified that he cut open the packing tape on the box, which was removed from the minivan, and found marihuana and cocaine rolled in paper towel inside the box. The box was identified by means of photographs police had taken on their return to the station.  He also testified that he helped another detective, the lead officer for the investigative team, prepare an information to obtain a search warrant while surveillance was being maintained on the building by another police officer. A warrant was obtained for three locations, with one being the unit of the building in question, belonging to the applicant.

The lead detective in this matter testified that he did not believe that the applicant owned anything in the common areas of the building, meaning the hallways, the lobby and the stairwells.   He said that the police conduct was reasonable throughout and that the other detective was engaged in the execution of his duties and as such, had the same right as a pizza delivery person or a repair contractor to enter the common area without entering any units.

The Court examined if the applicant’s s. 8 Charter rights were breached.  In doing so, they cited the cases of R. v. Edwards 1996 SCC 128 and Hunter v. Southam Inc. 1984 SCC 145.  In Edwards, the SCC examined a reasonable expectation of privacy, considering:

    • (i)   presence at the time of the search;
    • (ii)  possession or control of the property or place searched;
    • (iii) ownership of the property or place;
    • (iv)  historical use of the property or item;
    • (v)   the ability to regulate access, including the right to admit or exclude others from the place;
    • (vi)  the existence of a subjective expectation of privacy; and
    • (vii) the objective reasonableness of the expectation.

Other cases were referred to, namely R. v. Nguyen 2008 ABQB 721, R. v. Piasentini 2000 ONSC 3319, and R. v. Thomsen 2005 ONSC 6303.  Unlike the present case, however, those involved incidents where the accused had no ownership interest in the complex or the unit.  In those cases, the courts ruled similarly that it was not objectively reasonable to conclude that one has a reasonable expectation of privacy with respect to a place in which he has no ownership interest, which he does not use as a residence (temporary or otherwise), but rather merely has an ability to enter and leave.  In Piasentini, it was distinguished because it involved an apartment building:

There could not be said to be any right of possession or control of the hallway by the applicant and no ownership of the hallway. There was no history of use of the hallway that would have excluded others, such as police officers, and, while there was a right to admit others to the hallway, there was no overall right to regulate access since invitees of other tenants or the landlord could not be excluded by the applicant.”

In the current case, the Judge said that the storage units can be likened to an underground garage or secured parkade for the tenants of a building.  The Judge said further that a parallel can be drawn between the secured parking garage and the storage units in the condominium building as these are both areas that are secured for unit owners and require a key or some type of access card, to enter. Therefore, it is evident that by entering the storage unit in this instance, the police went beyond the limit of private property leading up to the respondent’s door.  The Judge referred to the “implied invitation to knock” as found in R. v. Evans 1996 SCC 8, and said that as the police did not have an implied invitation to enter the storage units’ area of the building nor were the police in pursuit of the Applicant at the time, the police entered the storage units unlawfully.  The Judge stated that the accused’s rights under s. 8 of the Charter were violated by the warrantless search conducted by the police of the common areas of the accused’s condominium building. The police had no statutory authority to conduct that search. In the absence of lawful authority, the search must be found unreasonable (R. v. Kokesch 1990 SCC 117)

Finding that the police search was an unreasonable intrusion on the accused’s right to privacy, the Judge turned to the “Grant Test” (24(2) Charter) and found that the long-term impact on the administration of justice, by letting in evidence found in a search of a dwelling house with a warrant devoid of legally obtained grounds, would bring the administration of justice into dispute and the evidence was therefore excluded.

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Filed under Recent Case Law, Search and Seizure

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