A condominium board has authority to cooperate with the police but only to a reasonable extent. As the Court of Appeal for Ontario tells us in R. v. Yu, 2019 ONCA 942, what is reasonable is informed by the constitutionally-protected reasonable privacy expectations of those who reside at the condominium.
Under provincial law, a condominium corporation has a statutory duty to administer the common elements and to manage the property of the corporation on behalf of the owners. [FN1] The board is elected by the owners to manage these affairs in their best interests. [FN2] This statutory duty confers a responsibility and authority on the board to act as the decision maker for the owners as a collective.
R. v. Yu, at para. 91.
The condominium board and, by extension, property management, are entrusted with security of the building and the residents. Residents reasonably expect that a property manager could consent to police entry into the building and its hallways and, in fact, would be likely to consent to police entry if informed of the possibility of criminal activity within the building.
R. v.Yu, at para. 92.
While condominium residents may expect to be under surveillance by visible cameras installed by management in common areas of the corporation and there to assist management in carrying out its responsibilities, residents do not reasonably expect to be under surveillance by “hidden cameras,” much less hidden cameras installed by the police.
See R. v. Yu, 2019 ONCA 942, at paras. 124, 126, 128.
Surreptitious state recording is highly, if not uniquely, invasive of individual privacy.
Because of the heightened privacy interests at stake, surreptitious video recording by the police cannot be authorized by the consent of the condominium board or property management.
R. v.Yu, at para. 130.
So, while a condominium board has a duty to manage the common areas of the condominium—and this will sometimes involve allowing non-residents such as maintenance people, management, and perhaps even police, to enter these areas as needed—allowing the police to install surreptitious video surveillance in the common areas of a condominium surpasses the limits of the board’s delegated authority.
See R. v. Yu, at para. 132.
Written by Stuart O’Connell
(All rights reserved to author)
FN1: See section 17(1) and (2) of the OntarioCondominium Act, 1998, S.O. 1998, c. 19.