We previously blogged about a case where a man accused of drug trafficking was acquitted, as the police had on three occasions entered the common elements of the condominium in which the accused resided and owned a unit, without permission and without a search warrant. The trial court had determined that the unauthorized police visits constituted trespassing and an infringement on the privacy rights of the accused, and as a result, the evidence obtained from these surreptitious visits was illegally obtained (details of the police visits are set out in our previous blog).
The acquittal was upheld by the Court of Appeal in its recently-released decision.
The Crown had appealed the acquittal on the basis that the accused did not have a reasonable expectation of privacy in the condominium common elements and, in particular, the hallways, stairways and storage rooms, as the accused had no control over usage of these areas by other residents and their visitors and guests. The Crown’s position was that the police had “an implied invitation to enter the common areas of the building to conduct non-intrusive investigative steps” (at the trial evidence had been provided that the condominium board of directors would have allowed the police onto the common elements if permission had been requested prior to the police entry). The Crown further argued that recognizing a right of privacy in the common elements would be perverse as it would make the common elements “a zone of protection for criminal activity” which would diminish the safety and quality of life of residents in multi-unit buildings.
However these arguments were not successful in swaying the Court of Appeal. The Court of Appeal noted that the size of the building was a relevant consideration, as a resident of a building with a large number of units may have a lesser expectation of privacy than a resident of a building with a small number of units. In this case the condominium in which the accused resided had only ten units. The fact that the police officer sneaked into a building that was generally always locked to non-residents and tried to hide his presence was also an important consideration in this case. This was inconsistent with the Crown’s assertion that the police had an implied right to enter the common elements.
The Court of Appeal concluded that “those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit that the nature and extent of the expectations of privacy they might reasonably hold may differ.” While recognizing the right to privacy in the common elements in this case, the result may have been different if the circumstances had been different. The Court of Appeal may have reached a different conclusion if the condominium was comprised of several hundred units with a high percentage of leased units or if the police had obtained the consent of the condominium corporation prior to entering the common elements.