Are Tents a "Home"? Extending Section 8 Privacy Rights for the Precariously Housed.

• Author: Ferencz, Sarah

Introduction I. R. v. Picard. Is a Tent a "Home"? II. A Legal Geography of "People, Not Places" in Section 8 A. How Law Makes Space B. A Legal Geography of Privacy and Home C. Privacy Rights in Canadian Law III. Precarious Homes and Reasonable Expectations of Privacy A. Whose Home is a "Home"? 1. Provisional Accommodations and Couch-Surfing 2. Vehicles and Trailers 3. Lockers 4. Tents and Other Personal Property Items B. The Territorial Boundaries of "Home" beyond Section 8 IV. Reduced Privacy in the Regulation of Public Spaces: Reimagining the Legal Geography of Home Conclusion: Restoring Home to the Houseless Introduction

In 2018, police seized drugs from Mr. Louis Picard's tent without a warrant. Mr. Picard's tent was located on the same stretch of sidewalk in Vancouver's Downtown Eastside (DTES) for two years, where he lived with his girlfriend, never leaving the space unattended. (1) At the heart of the case was whether the accused's tent could be characterized as a "home" for judicial purposes. If so, the tent would afford Mr. Picard a higher expectation of privacy under section 8 of the Canadian Charter of Rights and Freedoms and a search could only be conducted if it was lawful, or with judicial pre-authorization, meaning a warrant. (2) Following a short analysis in a voir dire before the trial, Justice Lee ruled that Mr. Picard's tent was not a home on the basis that it was on city property contrary to a municipal bylaw, which prohibited camping on city streets. Therefore, the drug evidence collected from the tent could be used against Mr. Picard at trial. (3) This case raises urgent questions as to how the courts engage in a contextual analysis of "home." Moreover, the case raises larger questions around the unequal access people have to privacy and protection from state intrusion in relation to their precarious housing and personal belongings.

To clarify, by "precarious housing" we mean housing where residents do not have legal tenure or enforceable legal protection from removal, which may include insecure rental housing, rooming houses, shelters, transitional housing, vehicles, tents, or tarps in public spaces. (4) For ethical and analytical reasons, we also avoid using the generic term "the homeless," given its derogatory connotations, and the danger that it generalizes differentiated experiences. Instead, we use the terms "houseless" or "unhoused" to refer to people such as Mr. Picard. These terms better reflect that while he may not have access to secure shelter, Mr. Picard does have a home. We also distinguish between the legal concept of "home," which we note with quotation marks, and the generic notion of home. While the latter is used in its everyday sense, the former refers to the judicial understanding of domestic shelter that deserves privacy protections.

To understand the Picard decision, we adopt a legal geographic perspective that analyzes home and property through a spatial lens, as discussed below. We contribute to the literature on the place-based application of criminal sanctions by focusing on the particular overlap of municipal rules regarding the placement of tents in relation to section 8 of the Charter, which reads: "Everyone has the right to be secure against unreasonable search or seizure." (5) Jurisprudence suggests that dwellings identified as "homes" are granted greater protection under this section. We argue that Canadian courts have defined home too narrowly when determining one's reasonable expectation of privacy. This narrow definition ultimately privileges those with fee simple title or other more secure forms of land tenure, and disadvantages those living precariously. In our view, Canadian courts should put more weight on other contextual factors that consider the nature of precarious housing, and the broader social context around housing crises. This broader context recognizes that people who are already rendered vulnerable in society--including Indigenous peoples, people victimized by intimate partner violence, and people with disabilities (including those with addictions)--are also less likely to be protected by section 8. An expansive definition of home is a more equitable approach to the interpretation of section 8, and aligns with the purpose of this Charter provision, which is to protect people, not places.

Our article is structured as follows: In Part I, we present the Picard decision, which turned on whether a tent located in one of Canada's poorest neighbourhoods can be considered a "home" under section 8 of the Charter. In Part II, drawing from scholarship in legal geography, we examine the brief evolution of section 8 since the Charter's emergence in 1982. We conclude that courts have generally eroded the protection of section 8, but that this reduction has been more significant for people in precarious housing contexts, including those living in vehicles and trailers, couch surfing, and staying in shelters. In Part III, we analyze the troubling conclusion in Picard and section 8 jurisprudence more broadly for those living precariously. We consider the increasing regulation of public spaces and anti-disorder bylaws and statutes that further limit privacy for people who are precariously housed. In Part IV, we conclude that a legal geography lens showcases how Charter interpretations limit legal designations of "home," ultimately devaluing the privacy interests of the precariously housed. With more than 235,000 Canadians experiencing houselessness each year, this article highlights the concerning lack of Charter protection for an important--and vulnerable--group of people. (6)

1. R v Picard, Is a Tent a "Home"?

   Between 2016 and 2018, Mr. Picard lived in a dome style tent in the 300 block of the Alexander Street sidewalk in the City of Vancouver, in the heart of the DTES. (7) Beside the tent stood a rectangular bin for storage. Mr. Picard also used a metal rack on which several bicycles were kept, with a blue tarp attached to the metal rack covering the tent. Mr. Picard told the Court that his tent was purchased with his welfare money and that he lived there with his girlfriend. Mr. Picard's belongings were kept inside the tent, and it was the location where his daily activities took place (e.g., eating, shaving, and sleeping). Although the City of Vancouver prohibits placing a tent on city property under By-law No. 8735, the Vancouver Police Department and city officials only occasionally asked Mr. Picard to relocate the tent. (8) In response, Mr. Picard would move it to a different location along the same street, or would remove the poles and put his tent against a building wall, without removing the items within the tent. When he was not by his tent, his girlfriend watched over it, ensuring the protection of the tent and his belongings, and preventing uninvited guests from entering.

   In 2018, Mr. Picard was charged with three counts of possession for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA). (9) The drugs were found by police in Mr. Picard's tent following his arrest, when the tent was searched without a warrant. Drugs were also found on his person before the tent was searched. A voir dire was held before the trial to determine whether the drugs confiscated from the tent could be admitted as evidence. The Court considered two issues: (1) whether Mr. Picard had a reasonable expectation of privacy in the tent and, if so, whether the Crown needed to show exceptional circumstances to justify the search of Mr. Picard's tent without a warrant; and (2) whether the tent could be searched following Mr. Picard's arrest as an incident to arrest. If the Crown could not show that it validly searched the tent, the evidence that the police collected from the tent would not be admissible at trial.

   Justice Lee, who presided over the voir dire, took judicial notice of the fact that the case occurred in the context of a housing crisis, and that many people were living in tents within the DTES as of 2018. (10) In Vancouver during 2018, 1522 people were living in shelters and 659 were living on the street, for a total of 2,181 people. (11) This figure shows a two per cent increase from the year prior, and is part of a continued increase since the first count of 1,364 in 2005 to 2,223 in 2019. (12) Further, one-half of the respondents reported that they were living in this situation for less than one year, which is not unusual in Canada. (13) These numbers do not include those living precariously in other ways, including residing in rooming houses or vehicles. The DTES has a long history of community activism, which exists alongside struggle and survival. Many people consider the DTES to be their home, where they receive care and are members of a larger community. (14)

   The first question in the voir dire turned on whether Mr. Picard's tent was a "home" within the meaning of section 8 case law. If it were a "home," the Crown would need to show exceptional circumstances to justify the warrantless search, or else the collected evidence could have been held inadmissible under section 24(2) of the Charter. (15) Section 8 jurisprudence does not include cases that have grappled with privacy rights in respect of tents. Therefore, Justice Lee looked to other legal references, including the definition of a "dwelling-house" in section 2 of the Criminal Code which states:

   Dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes (a) a building within the curtilage of a dwellinghouse that is connected to it by a doorway or by a covered and enclosed passage-way, and (b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence. (16) This definition could arguably include a tent, which is a mobile structure used as a residence.

   Mr. Picard's description...