What does the board have to do if the police attend with a warrant? What if they don’t have a warrant? When should the condominium contact the police because of an incident that occurred on the property?
In the past these questions were not easy to answer. While the condominium’s lawyer could provide general advice, there wasn’t really much case law to support the advice. Fortunately, in the past few years there have been cases that give some guidance.
The courts have confirmed that residents have a reasonable expectation of privacy in the common areas of a condominium. Here are a few court of appeal decisions in the area: R. v. White (2015), R. v. Labelle (2016), and R. v. Drakes (2009).
My advice when the board or property manager is approached by police is to contact the condominium’s lawyer. That said, here are some general guidelines:
Police have a warrant
The first step when faced with anyone claiming to be a police officer, inspector, or agent of the government is to ask for identification. While it is unlikely, if you find that the person claiming to be an officer is not one, you should immediately contact the police and deny access to the property. The person’s reasons for lying could be anything from less serious types (i.e. trying to solicit business from the owners) to the more serious ones (i.e. a domestic violence situation where the person wants to cause harm to a resident).
If you are satisfied that the person is an agent or officer, you should ask to see the warrant. Check to see that it is accurate. Is the address right? The name? Date? If the condominium grants access to the common elements, or a unit, and the information is incorrect it could lead to civil liability for the person who granted access, or the condominium. The evidence gathered would also likely be thrown out by the judge if criminal charges are laid. If it is not accurate the board or manager could refuse to grant access to the property, but I recommend that you speak with a lawyer before doing so.
If the police have a valid warrant the board and manager should be careful not to interfere with the police. The board or manager may be required to assist by granting access to the common elements, or even a unit. Some managers may use keys to grant access to the unit so that the police do not break down the doors. Some managers do not want to be involved in the process and would rather arrange to have the door repaired. There is no right or wrong way.
Police do not have a warrant
It is important not to interfere or hinder the police even if they do not have a warrant. As you probably know from going through a check point, the police are able to search or arrest without a warrant in some situations, including where they are in hot pursuit of a suspect or they believe someone’s life is in danger. It will depend upon the purpose of their visit, but generally the board or manager should grant them access to the condominium, and possibly the unit. If it is a emergency situation (i.e. a 911 call has been made) access should be granted without question. If it is not an emergency situation (i.e. the police are conducting an investigation) the board or manager should call a lawyer before granting access since there could be serious consequences to the condominium, board, or manager if access is given in an improper situation.
In some cases the police may want to ask the manager or board questions about the residents or an incident that occurred on the property. Again, unless it is an emergency situation, it is best to talk to a lawyer before answering questions. The lawyer may assist you in determining if there are certain questions that should not be answered because of the condominium’s obligations (i.e. to protect the privacy of the residents). If it is an emergency situation, the board or manager should limit answers to the basic information required to allow the police to perform their duties, such as answering questions like “where is unit x?” or “is there a second exit to the unit?”. The goal should be protecting the privacy rights of the residents as much as possible without hindering the police in their duties.
The condominium has an obligation to take reasonable steps to protect people using the common elements and their property. If there is a serious concern that someone will be injured by activity on the property, such as a violent fight, the police should be called. If there is a concern that illegal activity, such as drug trafficking, is going on in a unit the board may call the police, but I recommend speaking with a lawyer first. Making an allegation without some evidence to support it could result in civil liability for the condominium and the person who makes the allegation. Suspicions are not enough without more.
Written by Michelle Kelly, Sutherland Kelly LLP and republished with permission. Michelle Kelly practises law in the areas of condominium and real estate. She works with developers, condominiums, and unit owners across Ontario. She provides assistance to her development clients on the creation, sale, and turnover of condominium corporations. She provides assistance to her condominium clients on a range of matters, including unit owner disputes, owners’ meetings, collection procedures (i.e. liens), opinions on declarations, by-laws and rules, and enforcement.
For further information or to get in contact with Michelle, you may e-mail her at: firstname.lastname@example.org