by Eva Taché-Green

A quick glance at the changing skyline of Toronto says a lot about the increasing popularity of condominiums. Condo living means cutting back on square footage and swapping big backyards for sweeping views and access to amenities. But according to recent case law in Ontario, it also means giving up our right to be free from unreasonable search and seizure by the police.
In R. v. Brewster, 2016 ONSC 8038, Superior Court Justice Michael Code ruled that police can enter the common areas of condominium buildings and install covert video cameras without prior judicial authorization. The camera at issue in that case was installed on the 17th floor of a residential building. It was motion-activated and captured anyone coming or leaving three units at the end of the hall. Over the course of four months, the camera recorded numerous suspects coming and going from the target unit. That information was later used by the police to build a case against an organized crime ring. But the camera also captured the comings and goings of numerous other people who were of no interest to the police. The camera’s angle allowed the police to record inside the front hall of one of the units where a mirror reflected the activities of an unsuspecting and completely innocent third party. On one occasion, the camera recorded her dressed only in a towel, on another, she was wearing only her bra and underwear, and on a third occasion, the camera captured her kissing someone at the door. Although she likely thought she enjoyed the same privacy rights as her better-heeled house-dwelling friends and family, the Court in Brewster decided that her right to privacy was weaker simply because she lived in a condo.

Justice Code held that that the convert camera raised no concerns because condo residents have a minimal privacy interest in the common spaces of their buildings. One reason for his conclusion is that condo-dwellers are fully aware of existing surveillance: it is common for condo management to install security cameras in lobbies, parking garages, and elevators. The problem with this reasoning is two-fold. First, unlike covert police surveillance cameras, management-installed security cameras are clearly visible to residents who quickly identify their locations and behave accordingly. Second, security cameras installed by management in the main entranceways or even in the elevators of condo buildings are unlikely to capture the same kind of private information as a covert police camera pointing down a single hallway on the 17th floor. It is improbable that a resident will wander through the lobby dressed only in her underwear or ride the elevator wrapped in a towel.

Justice Code also held that no ones’ rights were violated by the covert camera because the right to privacy is only engaged behind the closed door of a dwelling. He wrote:

[T]here is a minimal privacy interest in the comings and goings at the external entrance to any private residence. Everything that the police observed in the 17th floor hallway, with the aid of cameras, would be visible from the sidewalk or street if the targets were living in a detached dwelling house. The fact that [the suspect] repeatedly entered and left the hallway leading to his 17th floor unit, sometimes with a bag and sometimes without a bag and sometimes in the company of another suspect, is no different than observations of a homeowner walking along the front yard path leading from the garden gate to the front door of a detached dwelling house. The latter observations have always been the subject of warrantless surveillance by police officers.

This reasoning ignores a key spatial difference between living in a condo and living in a house. The private residential core behind a condo unit’s front door is relatively small; the door usually leading through a small hallway directly into a kitchen, living room or even bedroom. By contrast, those who live in single family homes are buffered by the distance from the garden gate to the front porch and from the front porch to the front door. In order to achieve a similar sense of privacy, condo-dwellers depend on the buffer afforded by the hallways, elevators, and lobbies to separate them from the outside world. In fact, the vast majority of condos have a security feature at the front door – a buzzer system or concierge – specifically designed to exclude outsiders. To find, as Justice Code did, that the privacy rights of condo-dwellers end at the door of their unit rather than at the door to the building creates a double standard. In a post-Brewster world, those who can afford to own houses enjoy expansive protection from state surveillance while anyone living in a condo must be prepared to accept police recording equipment installed a few feet from their beds.

If you are reading this from your phone or computer somewhere in the GTA, there is a good chance that you, or someone you know, lives in a condo. There are an estimated 100,000 condo units in the GTA and that number is expected to nearly double in the next 7 years. Demographically, condo-dwellers are younger, better educated, lower paid and more ethnically diverse than house-dwellers. Despite, or even because of these differences, they deserve equal protection from the law. Tying the right of anyone to be protected from unreasonable search and seizure to the size of the home they can afford sets a dangerous precedent that should be overturned by the Court of Appeal.


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