Toronto police secretly filmed condo hallways — was that legal?
Case reveals ‘grey zone’ in law over warrantless surveillance in buildings’ common areas
For four months in 2014, a secret police camera recorded the comings and goings inside a Liberty Village condo building.
The camera, which Toronto police installed without a warrant to track gangrelated drug dealers, clearly showed the hallway outside two uninvolved units — including a partial view into the home of a woman who was not a target of surveillance.
In several instances, the camera recorded her wearing a towel or in her underwear reflected in a mirror inside her front door — resulting in what lawyers are arguing was a serious violation of privacy.
The recordings, which police say were taken with the permission of the condo board, are at the centre of an appeal in a case that exposes the current legal “grey zone” around warrantless police surveillance in condo buildings.
Does, as the appellants argue, allowing cameras to be secretly installed in hallways without a warrant mean Toronto’s rapidly growing population of condo dwellers have fewer protections against state surveillance than those who live in a house?
“It’s often said that a man’s house is his castle, but what about his or her condominium building? There is uncertainty in the law about whether condominium dwellers enjoy a reasonable expectation of privacy in the common areas of their condominium buildings,” said Nader Hasan, a criminal and constitutional lawyer who is not involved in this case. The appeal stems from a large-scale gang investigation that, in part, involved surveillance of the drug trade in condominium buildings around the city. The four men appealing their convictions were all convicted of charges involving gang-related drug-trafficking.
In the decision under appeal, R v Brewster, Superior Court Justice Michael Code found that hallways in condo buildings are the equivalent of a sidewalk or street outside a detached house.
The fact the suspect was observed in the hallway outside his unit “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,” he wrote.
The appellants, however, argue that the home of a condo resident doesn’t start at the door of their unit, but rather the door of the building.
Surveillance of the buildings’ common areas was an intrusion on peoples’ homes, they argue in documents filed with the court. “Residents do not expect to be recorded by a secret camera when they open the door to their condominium unit clad in a towel.”
Justice Code found that the privacy violations of third parties, including the woman whose unit was partially visible, were minimal and ruled police did not need a warrant with permission from the property managers or the condo board.
Security cameras are common in condo buildings’ shared spaces, “indicating the owners accept this reduction of their privacy interests in these common area that lead to their homes in favour of collective security,” he said.
But the appellants argue approving building security measures is very different from agreeing to invasive police surveillance.
There is also uncertainty about whether condo boards can consent to police surveillance in common areas without seeing a warrant, they say.
“It’s one thing to delegate matters of security to a condominium board, but is that really the same thing of delegating the authority to make decisions about your constitutional rights?” Hasan said. In a recent case, the Supreme Court found that in the case of a shared computer or shared premises, one user cannot waive the rights of the other person by allowing police to do a search.
The appellants argue condo boards are not equipped to weigh the privacy interests of condo residents with law enforcement objectives — there are no requirements for any members to have legal or formal training. In one case of surveillance, the appellants argue, the condo board seemed more concerned about the cost of camera installation than with the invasion of privacy.
The appellants say condo boards should not be able to consent to police-installed cameras without a warrant — but if the court finds they can, there should at least be mechanisms in place to ensure consent is obtained, that third parties are informed about the privacy invasion after the fact and that any third-party privacy invasion is minimized.
It remains unclear whether any innocent party is aware they were surveilled during the late 2013 and early 2014 period, according to the appellants.
The four appellants, Ken Mai, Larry Yu, Dat Quoc Tang and Christopher Saccoccia, are seeking a new trial excluding the warrantless recordings and quashing a later-issued warrant in part because they say police exploited a legal grey area to obtain the footage.
Toronto police spokesperson Meaghan Gray could not provide information about the specific case, but said “without exception” police officers are expected to conduct investigations within the confines of the law and in a manner that respects and adheres to the Charter of Rights and Freedoms.
“Where judicial authorization is required as part of an investigation, including if it is required for obtaining video-related evidence, there is an express expectation that judicial authorization will be sought,” she said.
Warrantless requests for access and for surveillance purposes by police are increasingly common, says Mario Deo, a condominium lawyer with Fine and Deo, which represents about 1,000 condo buildings around the GTA and in the province. He says he is informed of one about once a week.
His advice to condo boards is to always ask for a warrant, even though they don’t need one to give permission. When considering a non-emergency warrantless request, he said, the board should get the badge number of the officer, the request being made, what law is being enforced, the crime under investigation, how long the surveillance will be for and a statement that the officer has lawful right to come onto the property.
“People aren’t trained this much, but this is what you need,” he said. “Once you have that information, it’s a judgment call on the part of the condo board.” The general test he advises is whether condo board members feel the risk of harm to residents outweighs their privacy interests in the time it would take for police to obtain a warrant.
He said ensuring the police get a warrant can benefit condo residents in the long run, because it avoids exactly the issues that are being raised in this appeal but still allows the safety and security of residents to be considered.
Deo suggests there should be general notice issued to condo residents informing them that if the police want to covertly record common areas without a warrant, condo boards may grant permission under certain circumstances — and would do so if police obtained a warrant.
That way “at least everyone knows that when you walk out your door, there is no expectation of privacy,” he said.
He notes the use of security cameras in condo buildings is tightly regulated and privacy is considered carefully when that footage is used, for example, to find out if any condo rules are being broken. It’s not possible to install cameras to find out who throws cigarette butts off balconies, for example, because those cameras would likely allow a view inside a unit.
Brenda McPhail, the Canadian Civil Liberties Association’s director of privacy, technology and surveillance, said police should have to get a warrant before covertly recording individuals inside their home or in the shared spaces in a multiunit building, which she said are an extension of the home. “There may be a lesser expectation of privacy in the hall because you expect people to see you as you walk back and forth but there is not no expectation of privacy.”
The Supreme Court of Canada’s recent judgment in R v Jarvis, the case of a teacher who secretly recorded students in a school, rejected the premise that having security cameras present removes a reasonable expectation privacy, McPhail said.
“Those cameras are installed for a particular purpose. They are known and not covert,” she said. “There is accountability and transparency.”
Justice Code noted Toronto police had strong reasonable grounds for their covert surveillance, which was part of a massive joint investigation by the Asian Organized Crime Task Force, the Guns and Gangs Task Force and the Homicide Unit. Project Battery and Project Rx investigated warring rival gangs, including the Asian Assassinz/Project Originals and Chin Pac/Sic Thugz, following a spate of gun violence including a murder at Yorkdale mall in 2013.
The secret cameras were installed without a warrant at 38 Joe Shuster Way and 18 Valley Woods Rd. in late 2013 or early 2014. Police, without a warrant, also obtained access to a video feed from a building camera at 1600 Keele St. After warrants were granted, police later installed secret cameras 125 Western Battery Rd., 816 Lansdowne Ave. and 21 Iceboat Terrace, and another camera at 38 Joe Shuster Way.
Police also made 90 warrantless entries into various condo buildings between October 2013 and April 2014.
“It’s a little bit shocking, it’s a little bit alarming,” said Mathew Emanuele, a resident in the 125 Western Battery Rd. building, who was not aware that covert cameras could be placed in the building without a warrant. “As unit owners, we own a portion of the common elements so you would feel an invasion of privacy … but it’s a multi-level issue as well. It’s a privacy issue but also a safety issue.”
While he understands that the police would not want to notify residents during a covert operation, he says there should at least be information shared after the fact so residents know about any safety concerns or risks in the building.
“This is totally a grey area,” said Leanne Miller, who lives in a unit that was captured on the surveillance tapes, though she did not live there at the time.
She said her understanding is her home starts inside her condo door. If the elected condo board gave permission for the police to install covert cameras in hallways without a warrant, then she said that would be acceptable. However, she said, it’s a responsibility the board should take seriously and is something condo residents should be aware of.
Condo hallways are not comparable to a public sidewalk, she said — but they’re not exactly part of her home either. The hallways of a condo building are under surveillance of some kind anyway, she said, so she has very little expectation of privacy even from video cameras.
It does give her pause that the placement of one of the cameras would have allowed a partial view into her unit.
“It’s a little excessive,” she said. “You are taking a grey area and making it a little bit darker.”
The Crown has not yet filed their arguments in response to the appeal. A hearing is set for April 8.