A thorn in s. 8 of the Canadian Charter of Rights, and in Fourth Amendment doctrine in the United States, has been this question: Do condominium owners and apartment lessees have a reasonable expectation of privacy in the common areas of their buildings? The question has received some answers in two recent cases. On June 29, 2015, the Supreme Court of the United States denied a petition for certiorari in State v. Nguyen, 2013 ND 252, 841 N.W. 2d 676 where the North Dakota Supreme Court said: No. And on July 7, 2015, the Ontario Court of Appeal released its unanimous opinion in R. v. White, 2015 ONCA 508, [2015] O.J. No. 3563 affirming the trial judge who said: Yes. I will begin with the certiorari petition in Nguyen because it was the first in time.

On November 8, 2012, the Fargo Police Department received a tip about an odour of marijuana in the second floor hallway of a private apartment building where the petitioner lived. The police visited the building but could not figure out which apartment the odour came from. They put the building on a follow-up list. About a week later, the petitioner moved to another building where he rented a room in an apartment. The police went there with a drug detection dog. They gained surreptitious access by catching the door when someone was either entering or leaving. The dog alerted the officers to the presence of contraband outside the apartment. This information was used the next day to get a search warrant. When the warrant was executed, the police seized approximately one-half pound of marijuana, drug paraphernalia and roughly $2,500 in cash.

The petitioner moved to suppress the evidence arguing that the dog sniff was an unreasonable search. The trial court agreed based upon either a property-based or privacy-based rubric: (1) the police were trespassers by letting themselves in without consent; or, (2) the hallways and stairwells inside a secure apartment complex give rise to a reasonable expectation of privacy. The State filed an interlocutory appeal and the Supreme Court of North Dakota reversed. While acknowledging a split in the authorities, Justice M.M. Maring concluded, at paras. 9-10:

“The Eighth Circuit Court of Appeals has consistently held that tenants of multifamily dwellings do not have a legitimate expectation of privacy in common or shared areas…That the law enforcement officers were technical trespassers in the common hallways is of no consequence because Nguyen had no reasonable expectation that the common hallways of the apartment building would be free from any intrusion…In this case, we conclude the entry by the law enforcement officers into the common hallways was not a search.”

On remand, the petitioner pled guilty while reserving the right to appeal the Fourth Amendment holding and was sentenced to eighteen months of probation. He appealed back to the North Dakota Supreme Court renewing his Fourth Amendment claim. The court summarily affirmed.

From that procedural history, I will now get to the important part. In the Petition for a Writ of Certiorari filed in the Supreme Court of the United States on February 11, 2015, Professor Jeffrey L. Fisher of the Stanford Law School, counsel for the petitioner, made the following submissions on the question of national importance, at pp. 9-10:

“Many Americans live in apartment buildings and multi-residence settings. The U.S. Census Bureau recently found that buildings with two or more residential units constitute roughly 25% of the country’s housing stock, and that upwards of 23 million residential units – housing approximately 35 million Americans – are located in buildings with five or more residences…In urban areas, the percentage of apartment dwellers can be dramatically higher. In New York City, for example, apartments make up 50% of the city’s housing, and in Washington, D.C., and Los Angeles, four in ten residences are part of multifamily buildings…The issue whether apartment dwellers have Fourth Amendment rights on par with homeowners will become more important as greater percentages of Americans transition into urban, multifamily dwellings.”

Turning, then, to the Ontario Court of Appeal ruling in White, the facts were more egregious. The respondent lived in a condominium in a small building. The police suspected that he was dealing drugs from the suite. They surreptitiously entered the building three times and conducted surveillance in the common areas, searched his storage locker and listened to conversations coming from inside the suite. And, in the application for a search warrant, the police did not disclose the warrantless searches to the issuing judge. The police seized cocaine, marijuana and cash during the search. The respondent was charged with possession for the purpose of trafficking and possession of proceeds of crime. On an evidence exclusion motion under s. 24(2) of the Charter, the trial judge found that the respondent had a reasonable expectation of privacy in the common areas and storage locker that was breached by the warrantless searches. The evidence was excluded, the state’s case collapsed and the respondent was acquitted. [See: R. v. White, 2013 ONSC 1823, [2013] O.J. No. 1569]

In affirming the trial judge’s ruling, Justice G. Huscroft emphasized a “nuanced, contextual approach” in determining whether an expectation of privacy is reasonable in multi-unit buildings, at paras. 41-44:

“If the police are entitled to climb through windows to gain entry to multi-unit residential buildings and, once inside, enter common areas such as storage rooms, hide in stairwells, and conduct  surveillance operations for as long as they want on those who live there – all without a warrant – on the basis that those who live in these buildings have no reasonable expectation of privacy in the common areas, then the concept of a reasonable expectation of privacy means little…[T]he reasonable expectation of privacy is a context-specific concept that is not amenable to categorical answers. A number of considerations may be relevant in determining whether an expectation of privacy is reasonable in the context of particular multi-unit buildings, albeit that none of them is dispositive.”

Justice Huscroft then went on to arrive at the conclusion urged by Professor Fisher in the certiorari petition in Nguyen, at para. 51:

“There is nothing ‘perverse’ about providing a measure of privacy protection to the many Canadians who live in multi-unit dwellings. They, no less than those who live in detached homes, are entitled to the protection against unreasonable search and seizure the Charter provides. In any event, it is not an all or nothing choice. A balance must be struck between law enforcement objectives and privacy in modern urban life.”

The considerations that Justice Huscroft referred to in deciding whether an expectation of privacy is reasonable, in the context of a particular multi-unit building, were set out in the leading opinion of the Supreme Court of Canada in R. v. Edwards, [1996] 1 S.C.R. 128 citing United States v. Gomez, 16 F.3d 254 (8th Cir. 1994). They include these property-based factors: (a) possession or control of the place searched; (b) ownership of the property; (c) historical use of the property; and, (d) the ability to regulate access including the right to admit or exclude others. I am of the opinion that these considerations should be abandoned because they distort the analysis by emphasizing the protection of property over the protection of people. I assert this position for the following reasons.

The property-based analysis reduces a constitutionally protected value to banal questions such as: (1) was the loading ramp door regularly left open or inadvertently left unlocked by a tenant’s movers; (2) was the lock missing from the front door because the apartment building was a public housing project in disrepair; and, (3) did the building have an intercom system for guests to gain access or a twenty-four hour concierge? The answer to such questions puts constitutional rights up for sale and will almost always disadvantage the poor who live in cheaper apartments not because they want to but because they have to. Young Canadians, single parents and the elderly who rent modest suites because of necessity are put at risk by a jurisprudence that implicitly states: Rich people can buy more rights than poor people.

In R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 Justice Ian Binnie in the Supreme Court of Canada identified three privacy interests protected by s. 8 of the Charter: (1) personal privacy (bodily integrity); (2) territorial privacy (privacy in the home); and, (3) informational privacy (information about ourselves and our activities). The leading authorities have consistently recognized the home as commanding a high degree of privacy and the courts have not had trouble in protecting it. What, then, is the best means of achieving equality in territorial privacy for those living in multi-unit buildings such as condominiums, apartments and town houses?

Canadians, like Americans, are living in multi-residence settings in increasing numbers. The construction of condominiums and apartments in major cities is steadily on the rise. Restricting the privacy rights of Canadians who live in these homes, cheap ones by necessity or expensive ones as a life style choice, promotes inequality in the application of the law and undermines respect for the constitution and the integrity of the legal system. The judiciary ought to abandon the property-based elements of the Edwards test in favour of a presumption of a privacy zone for all residential accommodation that would include the perimeter of a house on private property and the exterior of a building containing multiple residential units and its adjoining land and structures (e.g., recreation and parking facilities).

A presumption of privacy would dispense with the need to perform a balancing act, to borrow the words of Justice Huscroft in White, at para. 51, “…between law enforcement objectives and privacy in modern urban life.” Such a presumption could be established by a defendant at a minimum of litigation cost and may be rebutted where the state establishes on a preponderance of evidence either (a) a clear and unequivocal waiver or (b) a compelling interest in law enforcement objectives. Evidence of waiver would include a delegation of authority to a condominium board or building management. A compelling interest in law enforcement would embrace exigent circumstances and the doctrine of hot pursuit. This unified approach to territorial privacy would benefit all Canadians and the nation as a whole by putting the emphasis where it should be – on people, not places.