Today's decision in R. v. Drakes, 2009 ONCA 560 makes clear that the Charter is engaged only when there is State action. So, when, as here, a building superintendent enters an apartment in a way that would be grossly improper for police, such entry can properly lead to police action without any Charter breach.
The Court held:
[11] Second, the appellants submit that the trial judge erred by concluding that s. 8 of the Charter was not engaged when the police obtained information from the building superintendents relating to the contents of unit 216 in the condominium building. They argue that this police conduct amounted to a seizure and that the building superintendents and/or the property managers who provided the information at issue to the police were 'agents' of the state.
[12] We disagree. The context surrounding this issue is the fact that the superintendents responded to a flood in unit 216 and then reported suspicious activity in the unit to the property managers who in turn furnished it to the police.
[13] The trial judge noted, correctly, that s. 8 will be engaged only if there is state action. The trial judge continued:
"The reason for the search was the flood, something to which management and staff had an obligation to respond. There is nothing in the evidence to suggest that management initiated the search or that it was conducted differently because of police intervention.
. . .
It follows that the way in which the police had access to the information about certain items inside the unit was as a result of a normal response to the flood… Management then contacted the police, not as agents but as citizens reporting suspicious activity.
. . .
Since the process whereby information about what was in the unit involved no state action, the Charter was not engaged."
We agree with this analysis and conclusion.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
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