Legal

December 29, 2022 Published by Toronto and Area Chapter - By Quintin Johnstone

Read This Before You Sign

From the Winter 2022 issue of CCI Toronto Condovoice Magazine, Volume 27, Issue Number 2.

Informed Consent - What Is It? When Should You Give It?

You are a property manager in a condominium or residential apartment building or even a commercial tower. You get a knock on the door and it is an undercover detective from the local police Drug Squad. Pleasantries aside, (s)he asks you to sign an agreement called “Common Area Surveillance Consent”. Let’s analyze what is really being asked of you and what is the impact to you and the corporation.

The Agreement

Our sources within policing advise that this relatively new agreement is designed to assist the police in obtaining information and conduct surveillance in circumstances when sufficient grounds for a warrant are not available. For example, when there are significant complaints from residents of suspicious individuals or increased foot traffic in and out of one unit.

The circumstances in which the police would use this agreement are limited but important when they reasonably believe additional evidence will lead towards an arrest and to minimize criminal activity in a building.

These agreements are being used by police services in the GTA and assist undercover  police officers to:

• Access the common areas of the building and property including, but not limited to the lobby, elevators, stairwells, hallways, basement, and parking garage to conduct surveillance.
• Access historical CCTV audio/video of the building and property as it relates to the police investigation(s).
• Access the rooftop, utility rooms and other common areas as is required for covert surveillance.
• Obtain resident related information, such as, but not limited to, associated unit number(s), associated parking space(s), associated fob(s) used, historical fob records, and any lease / purchase agreements, as it pertains to the target(s) of active investigation(s), and any persons associated to them (e.g. guests).

Note: This agreement does not allow police to access residential units.

To Sign or Not to Sign?

So, the big question is, should you sign the form or not? There are several questions further explained below, but the main issues surrounding this agreement are:

• Do property managers have the legal right and positional authority to allow police into private areas of the property to conduct such work?
• Is an all-encompassing agreement appropriate?
• What is the impact to the condominium corporation (building owner) if this form is signed?

Authorization to Sign

Condominium property management companies are hired to conduct the daily operations of the condominium corporation on behalf of the Board. They are also licensed in accordance with the Condominium Management Services Act, 2015 and statutorily bound to act in the best interests of the corporation. But  are property managers allowed to represent the privacy interests of residents and by signing these agreements possibly surrendering individual resident’s rights without their prior consent?

According to Gerry Miller, Managing Partner of the Condominium Law Firm Gardiner Miller Arnold LLP advises that, “Property managers should never sign such a consent agreement without consulting the Board of Directors and Legal Counsel.”

Reasonable Expectation of Privacy

Canadian law allows for everyone to have a reasonable expectation of privacy in certain areas. The police agreement has nothing to do with incidents where a non-resident commits offences on private property. Non-residents committing offences have no expectation of privacy and therefore full cooperation with police should be unlimited and immediate. No agreements are required in these circumstances.

Trespass to Property Act (TPA)

The Ontario Trespass to Property Act is a provincial legislation that prohibits  unauthorized entry to private property. Unless there is an emergency or when a search/arrest warrant is obtained, police are like everyone else when it comes to entering private areas. Private areas for the purpose of the TPA, include driveways, underground parking, locker rooms, amenities, hallways, and of course, private homes.

PIPEDA

PIPEA stands for The Personal Information Protection and Electronic Documents Act. This is a federal law that applies country wide to organizations and businesses that conduct commercial activity and, which some condominium lawyers argue, may include condominium corporations. The law affects the way organizations collect, use, and disclose personal information about individuals. Personal information includes things like Social Insurance Numbers, home addresses, dates of birth, telephone number(s), email address(es), vehicle information, etc.

There are three basic rights under PIPEDA:

1. The right to know why your information is being collected;
2. The right to know how it will be used; and
3. The right to know who it will be disclosed to.

Part of the agreement that police use to gain access and information includes:

“Resident related information, such as but not limited to, associated unit number(s), associated parking space(s), associated fob(s) used, historical fob records, and any lease / purchase agreements, as it pertains to the target(s) of active investigation(s), and any persons associated to them (e.g. guests).”

As outlined above, there are several serious considerations involved with signing an agreement with the police. Gerry Miller comments that property managers should be cautious of assisting the police at the cost of protecting the condominium owners from breaches of their expectations of privacy. Even more reason for property managers to consult with their corporate lawyer before allowing complete and unfettered access to personal information about any resident or guest to anyone including police.

Why is This Happening?

The criminal justice system in Canada being adversarial, requires complex levels of checks and balances in order for the system to remain just and fair. In the real world, for those who administer the criminal justice system at the street level (police), this means more and more labour-intensive and bureaucratic paperwork. The police are using this agreement and other methods to reduce the time and effort without jeopardizing the integrity of investigations and allows police a path of least resistance when trying to get information on criminals in multi-unit spaces versus the burdensome task of obtaining warrants and production orders. What this really comes down to that is that this form is a by-product of our times.

Why is This Important?

There is no doubt that cooperation with the police assists condominium corporations, property managers, and building owners to provide a safer community and remove those that negatively affect the living standards and quiet enjoyment of homes and businesses. Most people feel a moral obligation to help the police and often believe that it is in their best interests to cooperate.

For example, recent case law supports the fact that property managers do have the right to allow police into certain common areas; however, this allowance is not absolute and comes with many restrictions not outlined in the police forms provided by police. Police rely upon two stated criminal cases in support of using these forms. Both cases involved criminal cases where the accused persons lived in condominium dwellings.

Property managers are urged to search and read the findings of these judges as there are strong limitations to police using their powers outside of judicial authorization in condominium settings.

R. vs White (2015)

In this case undercover police officers entered the site without warrant and conducted surveillance on an accused person using common areas hallways.

R. vs Yu (2019)

In this case police officers did not get a warrant to install hidden cameras in common areas (hallways) but did get permission from the property manager.

Generally speaking and based on my experience as a former police officer, I appreciate and fully understand the frustrations of police trying to catch criminals in a working environment that is perceived as less than helpful to front line officers doing all the hard work and heavy lifting. Although the process usually works very well, things can go very wrong and very quickly if the process is not managed under your direct knowledge and control.

Conclusion and Basic Guidelines to Follow

Prior to allowing police to enter your property without a warrant, regardless of whether it is in common areas, you should consider what is being done on the common elements, how long will it take, what impact the surveillance may have in your community. In addition, the condominium corporation’s lawyer should be consulted prior to signing any agreement.

Further, condominium corporations should prepare in advance for possible requests from police as noted by Gerry Miller, “[e]very condominium corporation should have documented procedures for interactions with the local police relating to police investigations in their community…...they should have a plan for these circumstances created with the assistance of their security advisers so that directors, property managers, security, concierge, and superintendents all know what is expected of them when the police come knocking.”

Is the use of such agreements legal? Yes. This is clearly supported in case law. Does it give police wide-ranging and blanket powers to conduct their business as the police agreement suggests? Absolutely not.

Regardless of whether you agree with helping the police or not, they have a very tough job to do. Allowing police the authority to enter private property to conduct their work can have very beneficial outcomes when handled properly. Knowing your rights before you sign anything will not only greatly help the police but also help you to protect the community you serve at the same time.