Security Cameras in Condos: Privacy Interests vs. Safety & Security
[caption id="attachment_9612" align="alignnone" width="1880"] Photo by Scott Webb on Pexels.com[/caption] We are routinely asked to provide advice to our clients about the installation of security cameras on the common elements. Sometimes the cameras are installed by the condominium on the common elements to reduce vandalism and property damage. Other times an owner wants to install a camera on the common elements adjacent to his unit to protect the occupants of the unit. For both situations the primary concern is normally the privacy rights of the other residents, but secondary concerns are often possible damage to the common elements caused by the installation of the camera and compliance with the legal requirements of the Condominium Act, 1998. Privacy Concerns The use of cameras in condominiums is a tricky area with the increasing privacy rights of citizens. With the Personal Information Protection and Electronic Documents Act and other new privacy rights created by the courts, there is increasing pressure on organizations to protect the privacy of individuals. The installation of cameras could lead to civil and criminal liabilities if the cameras are used improperly or installed in a manner that violates a person’s expectation of privacy. The condominium must balance the privacy rights of owners with its obligations to the owners. Pursuant to section 17 of the Condominium Act, 1998 (the “Act”), the board of directors has a duty to manage the common elements and assets of the condominium. This obligation includes taking steps to reduce the risk of crime on the common elements and improve the safety and security of the residents. In addition, the condominium is responsible under the Occupier’s Liability Act to ensure persons entering upon the premises (and their personal belongings) are safe and secure. This obligation requires a condominium to take reasonable steps to alleviate any condition that could cause injury or damage to an individual or his or her property. Cameras can be an important tool in recognizing and reducing dangerous conditions, but the privacy rights of residents must be considered as well. Police Use of Cameras There have been some important court decisions in the past few years about police investigations and the involvement of condominiums. Most recently a decision was released where police installed hidden cameras in a common element hallway with the consent of the condominium's board of directors. The issue for the court was whether the accused's Charter rights were infringed, but the decision contains valuable lessons for condominiums about privacy rights and requests from the police for cooperation from the condominiums during criminal investigations. Some highlights of the case are:
- The expectation of privacy depends upon a variety of factors, including but not limited to the location of the cameras. The residents' expectation of privacy is highest within the units and lowest in common areas, like hallways, exterior common elements, and parking garages (albeit there is variation in the expectation of privacy within common areas).
- Police cannot install hidden cameras on the common elements or access the common elements (in buildings with controlled access) without the consent of the condominium corporation.
- Condominiums can grant access to the common elements to police, turn over surveillance footage from their own cameras, and provide other evidence to assist with police investigations. Condominiums should discuss the implications with a lawyer before engaging in any of these activities.
- Condominiums should not consent to the installation of hidden surveillance cameras on the common elements.
- Similarly, condominiums should not grant access to a unit to further police investigations without a court order. The police may use force to access the unit if they perceive it to be necessary in the circumstances (i.e. emergency).
- Cameras should be installed only to protect safety, prevent property damage, and detect or deter criminal activity;
- Cameras should be installed so that they only monitor the public areas of the property that are at risk of vandalism or are a security risk to persons;
- Cameras should not be installed toward the inside of an owner’s unit or in any other area where someone might have a higher expectation of privacy (i.e. changeroom or washroom);
- Signs should be installed to advise people that surveillance is in operation in the area;
- Any related equipment (i.e. back-up or storage equipment) should be strictly controlled to avoid unauthorized access to the images;
- Any images obtained should not be provided to any person unless required by law; and,
- Any images obtained should not be retained longer than is necessary to protect the property or persons.