The Reasonable Expectation of Privacy in the Common Areas of Multi-Unit Buildings post R. v. White

Until recently, the case law appeared to suggest that for the purposes of section 8 of the Canadian Charter of Rights and Freedoms tenants in an apartment building had no reasonable expectation of privacy in the common areas of the building.  That changed with R. v. White, 2015 ONCA 508 (CanLII), 127 O.R. (3d) 32.
In R. v. White, the Court of Appeal for Ontario found that multiple police entries into the common areas of a condominium building resulting in observations of the contents of the accused’s storage locker and the eavesdropping of conversations inside the unit were so intrusive that it could not be said that there was no reasonable expectation of privacy in the building’s hallways and common areas.
However, the Court did not go so far as to say that a tenant always has a reasonable expectation of privacy in the common areas of multi-unit dwellings, as 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 none of them is dispositive."
R. v. White, at para 44.
Following this case, a number of broad propositions have emerged from the case law regarding warrantless entry of police into the common areas of multi-unit buildings and the constitutional protection of privacy:
·         The police must be engaged in activity that constitutes a search: R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145;
·         There must be a reasonable expectation of privacy in the place to be searched, which is determined from a contextual analysis: R. v. Edwards, supra; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] 3 S.C.R. 432; R. v. Plant, [1993] 3 S.C.R. d281;
·         There is no reasonable expectation of privacy in observations of a underground parking garages in order to determine an association between an accused person and a building: R. v. Drakes and Brewster, 2009 ONCA 560 (CanLII);
·         There is no reasonable expectation of privacy from non-obtrusive observations made in the elevators and hallways of multi-unit buildings.  That includes observations of odours emanating into the common areas or the number of a unit where the suspect enters and exits: R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont.C.A.); R. v. Thomsen, [2005] O.J. No. 6303 (Sup.Ct.). 
·         Section 8 of the Charter is only engaged where the police “go beyond making observations that are externally visible or externally emanating into the common areas”: R. v. Laurin, supra; R. v. White, supra.
See R. v. Brewster, 2016 ONSC 4133 (CanLII)


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