Mar 14, 2018

Privacy Within the Strata Complex: Reasonable Expectations, Common Property, and Consent.

R. v. Hugh, 2014 BCSC 1426 (CanLII)

Introduction:

In British Columbia, strata title is governed by the Strata Property Act (SPA).[1] Strata title combines “private ownership of an individual unit, in a multi-unit building with an undivided share of the common property in the building and right to participate in the collective governance of the private and common property”. [2]This structure affects the judicial determination of section 8 rights under the Canadian Charter of Rights and Freedoms (Charter)“ to be secure against unreasonable search and seizure”[3]. Through an analysis of R. v. Hugh[4]and R. v. Law [5], I will discuss the nature and extent of section 8 rights in the strata property context. My analysis leads to the conclusion that strata corporations should understand that decisions regarding common property may affect an owner’s right against unreasonable search and seizure. As a result, strata corporations should consider the circumstances in which they will provide police consent to search common property and whether representatives are authorized to make that decision.

Section 8 Of the Charter and Case Summaries:

In order for the section 8 “right to be secure against unreasonable search or seizure” [6]to apply, the accused must have a reasonable expectation of privacy (REOP).[7]Section 8 is not a property right;[8]however, the courts establish whether there is a REOP by considering “the totality of the circumstances” including possession, ability to regulate access, and ownership of the property. [9]Where an individual has a REOP, and the actions amount to a “search”, the courts will consider whether the search is reasonable. If the police obtain valid consent to search the area, then the search is considered reasonable and section 8rights are unscathed.[10]

In Law and Hugh, police investigated the accused persons for crimes that were alleged to have occurred within their strata units. Without warrants, police approached representatives of the strata corporation for access to the common property and strata records. In Hugh, the voir dire concerned the admissibility of findings from a rooftop search. Police accessed the common property roof using a scissor lift where they detected the odour of growing marijuana.[11]Despite establishing a REOP of privacy on the roof, the British Columbia Supreme Court (BCSC) held that S8 had not been infringed because the strata council president had given consent to access the common property.[12]In Law, police were investigating sexual assaults that were alleged to have occurred in Law’s unit. The defence sought to exclude key fob records, surveillance in the hallway leading to Law’s unit, and CCTV footage from the lobby and parkade. In this case, the BCSC ruled that Law had no REOP in common property.[13]Further, police had obtained consent from a representative of the strata corporation to access the common areas and records. [14]

The Role of Common Property in Establishing a Reasonable Expectation of Privacy:

Hugh and Law, reveal that the common property designation under the SPA is a factor in the section 8 analysis. According to Justice Schultes in Hugh, in order to ascertain a REOP, “The first important step [...]is to determine the nature of the area within the ownership regime of the strata complex”.[15] The SPA defines common property as “that part of land and buildings shown on the strata plan that is not part of a strata lot.”[16]Common property is owned by all owners as tenants in common.[17]In most circumstances, owners pass through common property to access their strata lots. In Law and Hugh, even though access required a keyfob or scissor lift, the designation of the areas as common property reduced the expectation of privacy of the owners. For example, in Law, the prosecution submitted CCTV footage and fob records for information they contained about Law’s use of the common property when entering his strata lot. In admitting this evidence the BCSC pointed Law could not “regulate access to the parkade or the lobby, except to the extent that he could allow his own visitors to access it” [18] and that “nothing in the strata bylaws created a REOP in the CCTV images”.[19]However, in Hugh, the BCSC did find a limited REOP on the roof of Hugh’s unit, despite its designation as common property, because the strata corporation’s resolutions indicated a limited class of people would be able to enter the area for maintenance purposes. [20]

Based on the case law, it appears that strata bylaws, resolutions and rules can diminish or enhance an owner’s REOP in common property. The SPA indicates that bylaws “provide for control, management, maintenance use and enjoyment of the strata lots and common property” and must be passed by ¾ of the owners. [21]Alternatively, the strata council establish pass rules to govern the use of common property. [22]By comparison, a strata corporation may pass resolutions “direct or restrict the council in its exercise of powers” and generally require a “majority of the votes cast by eligible voter’s present”.[23]Given the emphasis on decisions of the strata communities in Law and Hugh, it seems that strata corporations could govern the common property in a way that establishes a REOP for its residents. For instance, a bylaw could state that unless a warrant is received, production of the strata corporation records to law enforcement is prohibited, nor will police be authorized to access common property for surveillance. Moreover, the Court’sreliance on the fact that only a limited class of people could access the roof in Hugh may imply that a designation of “limited common property” (LCP) could assist in establishing a REOP for residents. The SPA defines LCP as“common property designated for the exclusive use of the owners of one or more strata lots”.[24] If the strata plan designated the hallways leading up to Law’s residence as LCPfor the exclusive use of residents living on that floor, then this could have supported an inference of a REOP. However, designating common property as LCP requires a resolution to be passed by a ¾ vote among present eligible voters, or a designation created by the owner developer when depositing the strata plan. [25]

Authority to Provide Consent to Search Common Property

In both Hugh and Law, sole representatives of the strata council consented to the police search. In Hugh, Justice Schultes held, “there is no indication in the bylaws or governing legislation that the quorum or other meeting requirements of the council necessarily apply to the granting of permission to access common areas, or that it is beyond the authority of individual council members to grant it”.[26]However, this conclusion sits uncomfortably with the provisions in the SPAdealing with common property.

The SPA provides that owners own the common property as tenants in common,[27] and the strata corporation “manages and maintains” [28]the common property. The powers and duties of the strata cooperation must be exercised and performed by a council unless the bylaws state otherwise. [29]On a plain reading, the term “manages and maintains” does not seem to include the ability to provide consent to police to surveillance of an owner. Moreover, while reasons for decision did not reproduce the strata corporation’s bylaws, under the standard schedule of bylaws a sole representative would not have the power to consent to a search unless a specific delegation of the power by the strata council occurred under section 20.[30]Further, section 21, restricts a council member from spending the strata corporation’s money on common property repairs unless there are immediate safety concerns. [31]Put simply, if the SPA limits a member by requiring authorization to spend the corporation's money on common property, then it is unlikely that a singular councilmember would have the ability to consent to invasive searches on common property. In the absence of an explicit delegation, the council would be expected to follow procedures such as providing notice, ensuring quorum, voting, and providing meeting minutes to all owners. [32]Consequently, unless a strata corporation’s bylaws provide that representatives are authorized, there remains a degree of uncertainty regarding who can validly consent to a search of common property.

Conclusion:

Hugh and Lawdemonstrate the influence of strata property and strata property governance on whether an individual has a REOP and whether or not there has been consent to search. The SPA enables strata corporations to enhance an individuals privacy by establishing limited common property or instituting clear bylaws, rules, or resolutions about who can access areas. As a result, owners should be aware of the capacity of their strata corporation to affect their Charter rights under s8, to be secure from unreasonable search and seizure.


[1] Strata Property Act,SBC 1998, c-43 [SPA]

[2] Douglas C. Harris, “Condominium and the City: The Rise of Property in Vancouver”(2011) 36:3 Law and Social Inquiry 694 at 694.

[3] Canadian Charter of Rights and Freedoms, S8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]

[4] R v Hugh, 2014BCSC 1426, 2014 CanLII 1426 [Hugh]

[5] R v Law, 2017 BCSC 1241, 2017CanLII 1241[Law]

[6] Charter, supra note 2.

[7] R v Edwards, [1996] SCR 129 at para 30, 1996 CanLII 255 (SCC).

[8] Ibid, at para 29

[9] Ibid, at para 45.

[10] Ibid, at para 51

[11] Hugh, supra note 4 at para 15.

[12] Ibid, at para 63.

[13] Ibid, at para 107.

[14] Ibid, at para 107.

[15] Hugh, supra note 4 at para 41.

[16] SPA, supra note 1 at S1(1)“common property, s 66.

[17] Ibid.

[18] Law supra note 5 at para 86.

[19] Ibid, at para 90.

[20] Hugh, supra note 4 at para52.

[21] SPA,supra note 1 s 119(1).

[22] Ibid, s125(1).

[23] Ibid, s 1(1) “Majority vote”,27(1).

[24] Ibid, s 1(1).

[25] Ibid, s 1(1) “Limited Common Property”, “¾vote”, s 74.

[26] Hugh, supra note 4 at para 61.

[27] SPA, supra note 1 at s1, s 66.

[28] Ibid, s 3.

[29] Ibid, s 3, s 4.

[30] Ibid,S20.

[31] Ibid, “schedule of standard bylaws”, s 21.

[32] Ibid, “schedule of standard bylaws”, s 18, s19.