Read This Before You Sign

Informed Consent – What Is It? When Should You Give It?

By Quintin Johnstone, Founder & CEO of Samsonshield Inc. / Riskboss Inc.

As described by Wikipedia, “Elephant in the Room” is an American English metaphorical idiom for an obvious problem or risk that no one wants to discuss.” Controversial yes; however, very necessary conversation(s) here at Riskboss Magazine. In every publication, Riskboss Magazine will address the latest Elephant in the Room to clearly answer hard asked questions.

You are a property manager in a condominium, residential apartment building, or commercial tower. You get a knock on the door, and it is an undercover detective from the Drug Squad. Pleasantries aside, (s)he asks you to sign a form called “Common Area Surveillance Consent”.

The Form

These forms are being used by police services in the GTA and allow for such things as permitting undercover police officers:

Access to the common areas of the building and property, including, but not limited to; the lobby, elevators, stairwells, hallways, basement, and parking garage to conduct surveillance.
Access to historical CCTV audio/video for the building and property as it relates to the police investigation(s).
Access to the rooftop, utility rooms and other common areas as is required for covert surveillance.
Obtain resident related information, such as but not limited to, associated unit number(s), associated parking space(s), associated fob(s) used, historical fob records, and any lease/purchase agreements, as it pertains to the target(s) of active investigation(s), and any persons associated to them (e.g. guests).

Note: This form does not allow police to access residential units.

These forms are generally cookie cutter/generic/one size fits all. They allow wide-ranging, significant powers and authorities within the confines of private property lines, generally not permissible without search/arrest warrants, or production orders. Note-worthy, many of these forms have no time limits, allowing police to exercise their expanded authorities as long as they wish.

Let’s analyze what is really being asked of you and the impact to you and the corporation. To do this, let’s look at the history of how police services came to the use this form instead of getting a search warrant or a production order and why.

History & Perspective

Back in my Toronto Police days, when I was a young detective, it was much easier to obtain information and gain access to (semi)private areas. All you had to do was basically ask. Obtaining a search warrant was also much easier and much less complicated.

During this time, famed criminal lawyer Edward Greenspan was a guest lecturer at one of my classes at the University of Toronto.

Our professor, Michael Code (later to become a Judge on the Ontario Superior Court of Justice), invited him to speak about the imbalance of criminally accused persons being convicted at an alarming rate (at the time. well over 80% conviction rate). I was shocked to hear Mr. Greenspan predicting a more balanced conviction rate of 50% or even lower. His argument surrounded the notion that in Canada, we have an adversarial criminal justice system and, therefore, “More balanced” statistics on conviction rates would be coming, and coming soon. Those among us in the class that were in policing couldn’t believe it.

Fast Forward

Well, it happened. It’s here. According to Wikipedia,

“In Canada, 2017-2018 data provided by Statistics Canada indicate an overall rate of conviction of 62% (of those charged in adult court). This is much lower than one might infer from the 3.6% acquittal rate because 1/3rd of the cases are withdrawn (either directly or indirectly via a “Crown Stay”) before they reach a verdict. According to Canadian trial lawyer Kim Schofield, the effective conviction rate falls from 62% to approximately 50% if one excludes guilty pleas and deals.”

Policing in the 2020s

Policing in the 2020s in the GTA is much different than in the past. Whereas I testified every single day, rarely does a police officer testify in court now. Diversion, plea deals, and case withdrawals are the norm.

Despite initiatives like virtual conferencing appearances and process streamlining, the court system remains heavily burdened by capacity issues caused by increased burdens on how cases must be proven.
Police face these same increased burdens in obtaining search warrants and production orders, limiting their ability to conduct their business. This work takes an incredible amount of time and resources away
from font line policing efforts allowing criminals time to continue operating.

In law, police are required to provide what is known as the ‘full, frank, and fair disclosure’ to Judges when seeking warrants. In the case of police obtaining informed consent for authorization to enter private property, the same test is required. This is, of course, with the proviso regarding police limitations and confidentiality considering the activity taking place and their ability to disclose details that may impact their investigative processes.

This article backs on to the 2021 Spring/Summer Elephant in the Room article on ‘Defunding the Police’, where we wrote about policing efforts being heavily strained by constant increases in population, administrative burdens and reduced funding and decreases in personnel. Please check our archives. It’s a topical and interesting read.

To Sign or Not to Sign

So, the big question is, should you sign the form or not? Our sources within policing advise that this relatively new form is designed to get property managers to use their roles as managers in assisting the police in obtaining information and conducting surveillance.

Some issues surround this form that are critical before anyone signs it, such as this:

Do property managers have the legal right and positional authority to allow police into private areas of the property to conduct such work?
Is the all-encompassing form appropriate?
What is the impact to the corporation (building owner) if this form is signed?

Authorization to Sign

Property managers/firms are hired to conduct the daily operations of the corporation on behalf of the Board or property owner. The question begs, are property managers allowed to represent the privacy interests of individual residents regardless of whether it is

a residential or commercial community? Recent case law supports the fact that property managers do have the right to allow police into common areas. However, this allowance is not absolute and comes with restrictions not outlined in the forms provided by police. Informed consent is required before signing such a form.

Informed Consent

Do you know what you are signing? Do you know the impact of signing such a document? Are you allowed to sign it? Most property managers struggle with the answers to these questions. “Informed Consent” is required prior to signing any document of this magnitude. Because most people are unaware of the ramifications of allowing police access, such forms should not be signed without expert consultation.

Gerry Miller, Managing Partner of the Condominium Law Firm Gardiner Miller Arnold LLP, advises that,

“Property managers should never sign such a consent form without consulting the Board of Directors and Legal Counsel.”

The courts have repeatedly expressed their view on what makes it Informed Consent .

Is the consent express or implied?
Does the giver of the consent have the authority to give the consent?
Is the consent voluntary and not the product of police oppression, coercion or other external conduct that negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested?

Is the giver of the consent aware of the nature of the police conduct to which (s)he was being asked to consent?
Is the giver of the consent aware of their right to refuse to permit the police to engage in the conduct requested?
Is the giver of the consent aware of the potential consequences of giving the consent?

Reasonable Expectation of Privacy (REOP)

Canadian law allows everyone to have a reasonable expectation of privacy in certain areas. We wrote extensively about this in our 2020 Spring /Summer Elephant in the Room article ‘He Said. She Said. The Legality and Prudence of using Audio Recording with CCTV Cameras.’ In such cases, clearly placed and prominent signage alerts everyone that audio and visual recordings are taking place thereby limiting the reasonable expectation of privacy. Please check our archives. It’s a topical and interesting read.

Trespass to Property Act (TPA)

The Ontario Trespass to Property Act is a piece of provincial legislation that prohibits unauthorized entry to private property. This includes police officers. We wrote about this in our 2019 Spring /Summer
Elephant in the Room article, ‘Access to Private Property and Private Information.’ Please check our archives. It’s a topical and interesting read. Unless there is an emergency or when a search/arrest warrant is obtained, police are like everyone else when it comes to entering private areas. Private areas for the purpose of the TPA include driveways, underground parking, locker rooms, amenities, hallways,
and of course, private homes.

PIPEDA

PIPEDA stands for The Personal Information Protection and Electronic Documents Act. This federal law applies country-wide to organizations and businesses that conduct commercial activity and includes condominiums, residential apartments, and commercial buildings. The law affects the way originations collect, use, and disclose personal information about individuals they collect. Personal information includes things like Social Insurance Numbers, home addresses, dates of birth, telephone number(s), email address(es), vehicle information, etc.

There are three basic rights under PIPEDA:

The right to know why your information is being collected;
The right to know how it will be used; and
The right to know who it will be disclosed to.

Part of the form that police use to gain access and information includes:

Resident related information, such as but not limited to, associated unit number(s), associated parking space(s), associated fob(s) used, historical fob records, and any lease / purchase agreements, as it pertains to the target(s) of active investigation(s), and any persons associated to them (e.g. guests).

Gerry Miller comments that,

“In my 35 years as a condo lawyer I have experienced many circumstances in which property managers for clients we represent have been approached by police who leverage their role as protecting the public against criminals to elicit cooperation that is beyond the authority of the property manager and the condominium corporation putting both at great risk. Of course, property managers just want to help and protect their owners and residents but they need to be careful because the police making the request know this.”

consult with their corporate lawyer before allowing unfettered access to personal information about any resident or guest.

Case Law

Police rely upon two stated criminal cases in support of using these forms. Both cases involved criminal cases where the accused persons lived in condominium dwellings.

R. vs White (2015)

In this case, undercover police officers entered the site without a warrant and surveilled an accused person using common area hallways. Here are some of the appellant judge’s remarks:

“In my view, the trial judge’s conclusion that the respondent had a reasonable expectation of privacy in the common areas of his condominium building is correct.”
“In my view, the trial judge’s conclusion that the evidence obtained by the police during the three visits to the condominium prior to obtaining a search warrant was obtained by trespassing on private property is correct. The trial judge found that Detectives Hill and Redmond were “willfully blind” to their obligations under the Trespass to Property Act.”
“In this case, the police overheard conversations and activities taking place within a unit by hiding in a nearby stairwell. The home is entitled to the greatest degree of protection from unreasonable search, and in my view, the police conduct, in this case, had a serious impact on the respondent’s privacy rights.”
“I accept that the reasonable expectation of privacy 2015 ONCA 508 (CanLII) may be attenuated in the context of multi-unit buildings, where common areas including hallways, stairwells and storage rooms are shared by the residents, but as I have said, the reasonable expectation of privacy does not disappear. Those who live in multi-unit dwellings are no less entitled to the protection of their privacy than those who live in single-family homes, albeit that the nature and extent of the expectations of privacy that they might reasonably hold may differ.” [Emphasis Added]

R. vs Yu (2019)

In this case, police officers did not get a warrant to install hidden cameras in common areas (hallways) but did get permission from the property manager. Here are some of the appellant judge’s remarks:

“The appellants had a reasonable, but low expectation of privacy in the condominium hallways. However, the appellants’ reasonable expectation of privacy was attenuated by the authority of the condominium board and property management to consent to police entry. The valid consent given by property management at [address removed] authorized the police entries that followed.”
“Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside.”

“The authority to consent to police entry does not translate into an authority to consent to more intrusive police investigative measures, such as entry into a particular condominium unit.”
“Condominium residents expect the board to reasonably cooperate with the police as part of the board’s duty to manage common areas in the residents’ collective interest. This expectation does not give the board free reign to consent to all manner of police investigative steps in the common areas of the building, no matter how intrusive.”

“It was not reasonable for the condominium board or its delegates to consent to surreptitious video surveillance on behalf of the residents. This is beyond the bounds of its authority. Surreptitious video surveillance by the police is different. There is a limit to the board’s delegated authority.”

Why is This Happening?

As Mr. Greenspan predicted, the criminal justice system in Canada, being adversarial, requires complex levels of checks and balances in order for the system to remain fair. In the real world, for those who administrate the criminal justice system at the street level, this means more and more labour-intensive and bureaucratic paperwork. The police are using this form and other methods to reduce the time and effort without jeopardizing the integrity of investigations. This allows police a path of least resistance when trying to get information on criminals in multi-unit spaces versus the burdensome task of obtaining warrants and production orders. What this really comes down to is that this form is a by-product of our times.

Why is This Important?

There is no doubt that cooperation with the police assists condominium Boards, property managers, and building owners in ridding negative impacts on the living standards and quiet enjoyment of communities, homes and businesses. Most people feel a moral obligation to help the police and often believe that it is in their best interests to cooperate. Generally speaking, it usually works very well; however, things can go very wrong and very quickly if the process is not managed under your direct knowledge and control. As a former police officer, I have significant experience on what is and what is not allowed when police are engaged on private property. I also understand fully the frustrations of police trying to catch criminals in a working environment that is perceived as less than helpful to frontline officers doing all the hard work and heavy lifting.

Protection of Your Brand Image

Sometimes negative stigmatization that occurs (often through the media and online platforms) is an unintended consequence of police being on site. It can be detrimental to a community and is something to consider before providing police with a blank cheque to perform their duties on your property.

Some Basic Guidelines to Follow

Prior to allowing police to enter your property without a warrant, regardless of whether it is in common areas, must be considered by reflecting on the following terms:

First, informed consent on exactly what is being done should be described in writing and reviewed by the corporate lawyer. As indicated in the case law, blanket cookie-cutter forms allowing wide-ranging and significant authorities should be analyzed carefully before agreeing to such activities taking place.
Second, how long will it take? Forms should always have an expiration date. If police need more time, an extension may be granted.
Third, the forms neglect to advise that such voluntary access permission may be withdrawn at any time by the corporation. This should be included.

Forth, what are the possible outcomes and impact to the community of undercover police work at the site? Is there a likelihood of police conducting a No-knock Warrant with Emergency Task Force officers in the middle of the night? If so, will the media likely be there?
Fifth, the consent must be provided by a person with the positional authority to provide such authorization. In the case of condominiums, that would be the Board and in the case of commercial or residential apartments, the building owner(s).

According to Gerry Miller,

“Every condominium corporation should have documented procedures for interactions with the local police relating to police investigations in their community. Condominium corporations have fire safety plans and disaster plans and similarly they should have a plan for these circumstances created with the assistance of their security advisers so that directors, property managers, security, concierge, and superintendents all know what is expected of them when the police come knocking. They access the policy and advise the police representative accordingly and if there is an issue, refer the matter to the condominium corporation’s lawyers.”

In Conclusion

Is the use of such forms legal? Yes. This is clearly supported in case law. Does it give police wide-ranging and blanket powers to conduct their business? No.

For example, police cannot be allowed to install hidden CCTV cameras without a warrant. Access to private information in databases may also be restricted to warrants and production orders, depending on the circumstances.

This form has nothing to do with incidents where a non-resident commits offences on private property. Non-residents committing offences have no expectation of privacy, and therefore, full cooperation with police efforts should be immediate. No forms are required in these circumstances.

In emergency situations police already have significant and wide-ranging powers and authorities to enter private property and even private homes. Regardless of whether you agree with helping the police or not, they have a very tough job to do. Allowing police the authority to enter private property to conduct their work can have very beneficial outcomes when handled properly. Knowing your rights before you sign anything will not only greatly help the police but also, help you to protect the community you serve at the same time.

To learn more about what Samsonshield and/or Riskboss can offer you or your business, go to:

www.samsonshield.com/ca and www.riskboss.com/ca.