Condominium boards cannot consent to police installing hidden cameras in hallways without a warrant, the Ontario Court of Appeal ruled Monday.

The decision clarifies a legal grey area around what privacy expectations condo residents have when it comes to warrantless police surveillance inside their building, and whether they have fewer legal protections than those who live in houses.

“The installation of hidden cameras by the state is not something that condominium residents would reasonably expect the board to do in carrying out its management duties,” wrote Justice Michael Tulloch on behalf of the three-judge panel.

Letting police install hidden cameras is different from allowing officers into a condo building to observe the targets of an investigation, which Tulloch said the condo board and property management could consent to.

“As the appellants put it, the camera never blinks,” he said. “Continuous surveillance over an extended period of time reveals more personal information about its subjects than do discrete and purpose-oriented individual entries.”

“This is a very important decision for condo residents,” said Brenda McPhail, the Canadian Civil Liberties Association’s director of privacy, technology, and surveillance.

When a judge grants a warrant, they look at whether it is necessary under the law, whether it infringes any rights and can impose specific limits and conditions, she said, but a condo board is not equipped to make those decisions around installing a covert camera.

However, it would have been preferable if the judge had found a warrant is required before any police access to a condo building, including the hallways, she said.

The CCLA is concerned that condo and apartment dwellers have fewer charter rights than people with ground-level homes, she said, pointing to a recent Supreme Court decision that found police should not have entered the backyard of a Toronto townhouse unit using its broken gate.

The amount of money you have should not affect your rights to privacy in your home, she said.

The decision stemmed from a joint appeal by four men convicted in Project Battery and Project Rx, two multi-jurisdictional police investigations targeting Toronto gangs engaged in high-level drug trafficking.

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During the investigation, police installed hidden cameras in the hallways of condo buildings with the consent of their boards and without a warrant. The Court of Appeal decision focused on one such secret camera installed at a building on Joe Shuster Way, where two of the appellants lived at the time.

The camera recorded for four months and captured the comings and goings of residents who were not the target of the surveillance. The camera’s field of view included a partial sightline into the unit of a woman who was not a target of the surveillance when her door was open. On several occasions, she was recorded wearing a towel or in her underwear reflected in a mirror inside her front door.

The appellants argued that police should have to obtain a warrant to enter condo buildings, and that the authorization of the condo board was not enough.

Tulloch disagreed. He found that there was no reasonable expectation of privacy in the building’s parking garage and said police could enter without a warrant or the consent of the condo board. The police acted as any visitor to the condo could, in a space accessible by the general public, he wrote.

Further, he said the condo board and property manager could consent to police entering the common areas of an access-controlled building, where there is a low expectation of privacy by residents.

Tulloch said residents would expect the condo board and property management, who are entrusted with the security of the building and residents, could consent and would likely consent to police entering the building’s common area including hallways if they were told about possible criminal activity within the building.

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Residents’ reasonable expectation of privacy would be expected to vary throughout the building depending on how many people go through a common area and whether it is known to be under surveillance by security cameras.

“If there is no visible camera, and if the resident has been told that there are no security cameras, then residents are entitled to expect their movements are not subject to camera surveillance,” he wrote.

There were no security cameras in the hallways of the Joe Shuster building at the time when the hidden camera was installed. And while residents might expect that building management could share recordings from visible security cameras with police, it does not mean they would expect building management to permit the police to install their own cameras, Tulloch said.

“Condominium residents expect the board to reasonably co-operate with the police as part of the board’s duty to manage common areas in the residents’ collective interest. This expectation does not give the board free reign to consent to all manner of police investigative steps in the common areas of the building, no matter how intrusive,” he wrote.

While Tulloch found the installation of the hidden camera did violate the appellants’ reasonable expectation of privacy, he ruled the evidence was still admissible because, in part, there was a legal grey area at the time. The police had obtained legal advice from the Ministry of the Attorney General that they could install cameras in the common areas based on consent from the property management, he noted.

He added that in-person surveillance of the targets was highly dangerous and that the cameras were installed not out of convenience but to minimize the danger faced by the police.

The police also took steps to minimize the impact of the cameras on the privacy rights of third parties, which was shown the placement of the cameras, he wrote. (The appellants’ example of the woman whose unit could be partially seen into was not specifically mentioned in the judge’s ruling.)

The appeals for the four men were dismissed, and the sentence for one of the men was reduced by a year.

The court did not consider whether the police left out key information concerning the use of a Stingray surveillance device to capture identifying cellphone data at three dozen locations across Toronto and the GTA as part of the investigation.

Only one of the appellants was targeted by the Mobile Device Identifier, also known as a Stingray or IMSI catcher, but his phone was never identified through its use and none of his communications were intercepted.

A decision on this ground, therefore, would have no bearing on his appeal, Tulloch said.

Dec. 3, 2019 — A poll added to this article has been removed and edited to clarify the question and options posed.