In R v White, the Court of Appeal recently endorsed the trial judge’s finding that investigators overstepped constitutionally permitted boundaries in entering a condo building with a controlled entrance to make observations and gather evidence against a suspected drug trafficker. Police entered the condo on three separate occasions, hiding in a stairwell and entering the storage locker area to determine what the suspect had in storage. They also overheard conversations emanating from the condo in question. The police then relied on those investigative techniques to obtain a warrant to search the condo where they found a large stash of drugs.
The Court found that a condo owner does have a reasonable expectation of privacy in common areas of a condo building. In excluding drugs as evidence in the accused’s trial that were seized as a consequence of this investigation, the Court also commented on the fact that the investigator failed to advise in the application to obtain a search warrant that they had entered the building in violation of the Trespass to Property Act.
The Court of Appeal did comment that the above does not necessarily apply to tenants of a rental building, as they do not have an ownership interest in the dwelling. Other factors to consider are whether the entrance to a rental building is controlled by a locking mechanism, thereby restricting access to members of the public, and the number of units in a building, tenant rights of access etc.
This case is of interest because it captures the dynamic between a citizen’s right to privacy in their domain versus the police interest in investigating criminal activity. The more appropriate avenue would have been to continue to conduct surveillance on the accused in the community, and then apply for a warrant to search the condo.
Of interest is that the Court does not address whether possessing a property for the sole pursuit of criminal activity lessens one’s expectation of privacy in that dwelling.