Balancing condo safety with privacy rights

Why condo corporations should proceed with caution when police pay a visit
Monday, November 25, 2013
By Michelle Ervin

“Has everyone heard of the Central Nigeria Bank letter scam, where a wealthy businessman from Nigeria wants to pay you oodles of money if only you’ll hand over a few hundred thousand first?” asked Ashley Shaffer of Fine & Deo Barrister and Solicitors.

Shaffer, speaking at the session titled “When the Authorities Come Knocking” during the recent Condominium Conference in Toronto, explained that these scams are not always based in some far away location; in fact, a recent case was run out of a Toronto condo.

A superintendent happened to notice suspicious materials while fixing a leak in the unit and reported it to the property manager, who reported it to the police. The perpetrators were then arrested and sentenced.

“Now, no property managers or board members should take this as a sign that superintendents can riffle through the personal effects of people every time they have to go and fix a leak,” Shaffer stressed.

Indeed, her fellow speakers at the session agreed that condo boards and property managers must take care to balance community safety with privacy rights.

If police enter a condominium building with a search warrant, it is extremely important to check the warrant to ensure the police’s information is correct, Shaffer said. For example, if it is a search warrant, is the address correct? If any of the information is incorrect, she explained, the condominium corporation should “politely” request that the police come back with a new search warrant.

“If the warrant is wrong and you let the police in to search, any evidence collected from this warrant can be thrown out in court and then everyone loses,” she said. “The police did not catch the perpetrator, the residents are back to sharing a space with a possible shady character, and the board and property manager need to start from scratch in dealing with, very likely, a problem unit.”

Even when police have a search warrant with correct information, the lawyer said, a condominium corporation will still have to decide whether to use a key to let officers into the specified suite, or risk damage to the property for which the condominium corporation may be held liable if the police break the lock and door. (Shaffer pointed out that a condominium corporation is likely to have provisions for entering a unit in its bylaws or declaration, typically requiring advance notice that an officer is unlikely to wait around for.)

She said that if police enter a condominium building without a search warrant, say, because a crime is under way, the condominium corporation will again have to decide whether to use a key to let officers into the specified suite or risk damage to the property if the police break the lock and door.

In non-emergency situations, police may wish to speak to a condominium corporation as part of an ongoing investigation. Like ordinary citizens, the condominium corporation may choose or refuse to talk to police. Where it gets complicated, Shaffer said, is when the police are asking for personal information about a resident or unit owner.

She said regardless of whether it decides to cooperate, a condominium corporation should request a letter from police that possesses five key traits. It should: be written on police letterhead; identify the requesting officer’s name and badge number; state that the request is being made in conjunction with an investigation relating to the enforcement of a law; include any other details possible; and list requested documents and information. If the condominium corporation opts to turn over the requested information, it must take care to ensure only the documents and information cited in the letter are disclosed.

If police want to conduct surveillance in the common elements, Shaffer said that as a general rule, they should be asked to come back with a warrant.

The lawyer recommends that condominium corporations develop privacy policies and guidelines for disclosure of information to third parties, and educate residents and staff on them before faced with these situations.

Security consultant David Hyde of David Hyde & Associates explained that concierge and security staff are often the ones responding to requests from police — in the evening or on weekends — so it is important that they be trained in how to do so.

Security personnel in Ontario complete 40 hours of pre-assignment training to earn their license, Hyde said. As a best practice, though, security staff should also have at least 24-hours of building-specific training. Training should include when to use the master key, when to call the property manager at home and when to escalate issues to the police.

Hyde noted that many security guards are aspiring cops and so are prone to “spill their guts” to police when asked for assistance. And it is likely that they are not familiar in the specifics of privacy laws.

According to David Stinson of the Toronto Police Service, police will not stop by the concierge or security desk to identify themselves in some circumstances, for example if a crime has occurred nearby and police are in hot pursuit of a suspect who has run into the building. In cases like that, if a person were to stand in an officer’s way, that person could be arrested for obstructing a police officer.

Under other circumstances, a condominium corporation may ask an officer to show their identification, Stinson says. Police will show their ID, but will not let anyone handle it. They will let a person look at their identification, read their name and examine the hologram.

Shaffer said that at the end of the day, condominium corporations can call police if they see something suspicious in a unit, and should always call police if anyone is afraid for their own or someone else’s safety. However, if criminal activity is not occurring or imminent, it is important to step back and consider what liabilities a condominium corporation may be exposed to by its actions.

Michelle Ervin is the editor of CondoBusiness.

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