As published in the Spring 2014 edition of CondoVoice Magazine.
How to respond when the police seek access to or information from a condominium corporation in various situations
Condominium corporations have a responsibility to protect the privacy of their residents and unit owners. They also have an obligation to prevent danger and to keep people and property reasonably safe pursuant to the Condominium Act, 1998 and the Occupiers’ Liability Act. At times, these two duties can be in conflict. This conflict is never more acute than when police become involved with a condominium corporation.
The following is a simple guide as to how to respond when the police seek access to or information from a condominium corporation in various situations. If property managers and board members are unsure about how to proceed, they should always consult with legal counsel for a circumstance-specific legal opinion.
If the Police Have a Warrant
There are a few essential things to remember if the police come to a condominium corporation with a warrant. First, ask the police officers to identify themselves. Make sure to see a badge and note the badge number. Second, read the warrant carefully. If it’s a search warrant – what areas are the police seeking access to? If it’s an arrest warrant – who are they seeking to arrest? Make sure that the address and any name on the warrant is accurate. If any part of the warrant is inaccurate, send the police back to get a correct warrant.
Requiring the police to have an accurate warrant serves everyone’s interest. If the warrant contains a mistake and a property manager, board member or neighbour lets the police in to search a unit, any evidence collected from this search can be discarded in court. Then, everyone loses. The police’s work will have been ineffectual, the residents may return to sharing their living space with a disreputable character and the property manager and board will need to start from scratch in dealing with whatever problem may have given rise to the warrant in the first place. Additionally, if the warrant is incorrect and the police enter the wrong unit, they may collect “evidence” from an innocent neighbour. Most importantly, ensuring warrants are accurate will help minimize a condominium corporation’s risk of civil liability.
If the police attend with a correctly drafted warrant, then they may be let into the common elements, at the very least. Management may consider using its keys to let the police into private units listed on the warrant. There is no clear authority permitting management to use its keys to let police into units. However, in order to execute warrants, police are allowed to break doors or locks, which could result in damage for which the condominium corporation may be responsible for repairing pursuant to the Condominium Act, 1998, or a claim by a unit owner. Letting the police into units may avoid this type of damage or claim. Finally, police should only be permitted to search areas listed on the warrant.
If the Police do not Have a Warrant, but Attend at a Time When there Is a Crime Being Committed or about to Be Committed
This situation might arise in response to a 9-1-1 call, for example. In these cases, a property manager, board member or neighbor should allow the police access to the condominium even without a warrant. Police are allowed to arrest someone without a warrant in certain circumstances, notably, when they witness someone committing a crime. The same basic rules apply as when the police come with a warrant. Police should be let into the common elements. Management should use its judgment about whether to let the police into units using its keys. In this case, management may be a bit more wary about using its keys to let the police into private units. But, as in the previous scenario, the police may break locks or doors.
If the Police Are Investigating a Unit Owner or a Resident
In this situation, the police do not have a warrant and there may be no crime being committed – the police only approach the condominium corporation to ask questions and carry out an investigation. The condominium corporation must be cautious not to disclose any personal information about residents or unit owners except in certain circumstances.
According to the Personal Information Protection and Electronic Documents Act (PIPEDA), personal information means “information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization.” PIPEDA prohibits the release of personal of information to third parties, including the police.
However, PIPEDA does outline some exceptions to this rule. In particular, a condominium corporation may disclose information to a police officer if the police offer has reasonable grounds to believe that the information will help in the investigation of a crime. This request must satisfy certain criteria in order to protect the condominium corporation against a privacy complaint or civil liability.
Most importantly, ask for the request for information or documents in writing. The request should be on police letterhead and should include the requesting officer’s name and badge number. There should be a statement that the request is being made in conjunction with an investigation relating to the enforcement of a law and, if possible, the specific law being enforced or the crime under investigation. It should also contain a statement that the police officer has the lawful authority to obtain the information. The letter should contain as much other information as possible, such as the name of the person under investigation. The letter should also enumerate the documents and information pertaining to the request and the condominium corporation should disclose only those documents enumerated in the letter.
The condominium corporation may choose to disclose personal information to the police in response to this type of request, or, the condominium corporation may refuse to disclose. Police asking for information from a condominium corporation is akin to a police officer approaching an individual on the street to talk about his or her neighbour. There is never any obligation to speak to the police without a warrant. On the other hand, anyone may choose to respond to a police officer’s questions.
If the Condominium Corporation Wants to Disclose Information to the Police on its own Initiative
If anyone is worried about the safety of themselves or of another individual, it goes without question that he or she should never hesitate to call the police. However, in cases where immediate safety is not an issue, the condominium corporation or property manager should be sure that any illegal activity they wish to report to the police is already going on or is imminent. If there is simply a suspicion that criminal activity may occur in the future, avoid making a premature police report, because a false alarm resulting in a breach of a unit owner’s or resident’s privacy could expose the condominium corporation, and the individual that makes the report, to liability for harassment, defamation, oppression or otherwise, depending on the circumstances.
It is important to always use common sense when the police and the condominium corporation meet. Condominium boards and property managers should take seriously both their responsibility to safeguard residents’ and owners’ reasonable expectation to privacy and their responsibility to ensure the safety and security of the condominium and its residents.
One further consideration to informed decision making in this regard is: who might complain? A convicted criminal will have a lot less credibility in a legal action against a condominium corporation for a breach in his or her privacy than an innocent condominium dweller, caught in the cross-fire of a police investigation. If there are serious reasons to believe that criminal activity is underway in a condominium, property managers and board members might be more confident disclosing information, within the bounds of the law. If there is only a mere suspicion of illicit behaviour, property managers and boards should proceed more cautiously when disclosing information.
Preparation, Preparation, Preparation
The best course of action is to consider all of these scenarios before they arise. Condominium corporations benefit greatly from well thought-out privacy policies. These policies help guide and inform property managers and condominium corporation boards about when to disclose information to police or other third parties. Clear privacy policies will also make residents and owners aware of when their information might be disclosed to third parties and clarify expectations about privacy.