Pubdate: Thu, 09 Jul 2015
Source: Ottawa Citizen (CN ON)
Copyright: 2015 Postmedia Network Inc.
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.ottawacitizen.com/
Details: http://www.mapinc.org/media/326
Author: Andrew Seymour
Page: A6

CONDO COMMON AREAS ARE PROTECTED, COURT RULES

Privacy expectation not diminished in shared areas, Ontario court
finds

Police are violating the privacy rights of condominium owners if they
snoop around the common areas of their buildings without a warrant or
permission to be there, Ontario's top court has ruled.

The Ontario Court of Appeal ruling comes as the court upheld the
acquittal of an accused Ottawa drug dealer who was charged after
Ottawa police detectives surreptitiously snuck into the man's 10-unit
condominium building three times. Once inside, they checked on Merith
White's storage locker, spied on the hallway outside his door and
listened in on conversations through the poorly insulated walls.

Police used the information gathered from their forays into the common
areas to obtain a search warrant for White's apartment, which turned
up 1.7 kilograms of cocaine, 6.8 kilograms of marijuana and five grams
of crack. Police were led to White's apartment by another as part of
their investigation into another suspected drug trafficker. Police
never told the judge who authorized the search warrant that they
entered the building without permission.

The first time police entered the normally secured building on
Churchill Avenue in December 2010 they followed a postal worker in
through the front door. The second and third times they entered
through a stairwell door that was supposed to be locked but failed to
latch properly during the winter months.

At trial, an Ottawa judge tossed out the drug evidence collected
against White as a result of what the judge found to be privacy
breaches. Ontario Superior Court Justice Paul Lalonde found the police
were wilfully blind and had shown bad faith, and found White not
guilty of possession for the purpose of trafficking and possession of
property obtained by crime.

White, then 37, was ultimately convicted only of simple drug
possession and given a $500 fine after police discovered less than
half a gram of cocaine on him during his arrest.

On Tuesday, the court of appeal upheld the ruling, finding that those
who live in multi-unit dwellings are no less entitled to the
protection of privacy than those who live in single-family homes.

While condominium dwellers may have a reduced expectation of privacy
in common areas, the reasonable expectation of privacy doesn't
disappear just because common areas can be accessed by neighbours or
other visitors to the building, the court of appeal found.

"The home is entitled to the greatest degree of protection from
unreasonable search, and in my view, the police conduct in this case
had a serious impact on the respondent's privacy rights," the court
ruled.

Federal prosecutors who sought to have the acquittal reversed argued
condominium residents didn't have a reasonable expectation of privacy.
Prosecutors argued it would be perverse to make the common areas of
their homes "a zone of protection for criminal activity which
diminishes their safety and quality of life." The court of appeal
disagreed. "There is nothing 'perverse' about providing a measure of
privacy protection to the many Canadians who live in multi-unit
dwellings," said the court. "A balance must be struck between law
enforcement objectives and privacy in modern urban life."

Ottawa lawyer Mark Ertel, who represented White at trial, said police
wouldn't dare set a foot into someone's backyard to collect evidence
without a warrant. Now condominium common areas can be treated the
same, Ertel said.

"There is a reason why they put an access control on the door. It's to
control access," said Ertel. "The Crowns and police were assuming that
they had carte blanche to go in and do whatever they want."

The police officer who entered the condominium testified at trial that
it was "very common" to enter locked buildings for investigations
while the lead investigator believed police had done nothing wrong.
The lead investigator also testified he visited the condominium's
board of directors following the arrest and received permission under
the Trespass to Property Act to enter the building in the future.

Ertel said he anticipates police will now attempt to seek more of
those blanket approvals from condominium owners to gain access to
common areas without a warrant.
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