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]

I.  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 dwelling-house 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 of his experience and his sentiments suggests that his tent was a “home” under section 2(b), because his tent was his permanent or temporary residence and was designed to be mobile. However, neither counsel nor Justice Lee was able to identify a case that considered the “dwelling-house” definition from the Criminal Code in the context of section 8 cases. Justice Lee did not cite related case law. For example, he did not reference the reasoning in another privacy case concerning the search of a car, where Justice Brophy compared the privacy rights in relation to a vehicle to those of living in a house, camper, or tent. He stated: “I note this is a motor vehicle. This isn’t a house. This isn’t a camper. This isn’t a tent. This isn’t living quarters.”[17] While Justice Lee understood Mr. Picard’s subjective perception of his tent as a home, he held that it is “too simplistic to say that any residence or place which a person calls home is automatically a ‘home’ in the legal sense, so as to entitle Mr. Picard to protection from a warrantless search save for exceptional circumstances.”[18] Instead, Justice Lee argued that he needed to consider “all the circumstances of the particular case when assessing the claim for privacy.”[19]

The circumstance that Justice Lee focused on was whether “there was a legal right for the occupant to reside on the property upon which lies the residence.”[20] Justice Lee concluded that, “Mr. Picard did not have the legal right to erect a tent on the City sidewalk. He may have put up a tent and the City may have acquiesced in the presence of the tent, but that did not give to Mr. Picard a legal right to place the tent onto City property.”[21] The absence of a real property interest was key in Justice Lee’s decision. Mr. Picard was prohibited from putting his tent on city property. Justice Lee dismissed Mr. Picard’s argument that he had heightened expectations of privacy such that the Crown would need to justify the search and gave little weight to the state’s longstanding tolerance of Mr. Picard’s presence on the block. This meant that, for the purposes of section 8, Mr. Picard’s tent could be searched without a warrant.

Justice Lee then considered the second question: whether the tent was within the search powers of police on the basis that Mr. Picard had been arrested. While our article does not analyze this part of the reasoning, we provide the Court’s decision for helpful context. In particular, we highlight that Mr. Picard’s proximity to the tent allowed it to be searched as an incident of arrest. Justice Lee noted the requirements of a valid search: (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense that it is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably.[22] Even though Justice Lee did not consider Mr. Picard’s tent to be a “home,” Mr. Picard still had a reasonable expectation of privacy in the tent and its contents such that the search of the tent would need to satisfy these requirements.[23] The Court held that the search was valid on the basis that: (1) the tent was small and was in the immediate vicinity to where Mr. Picard was lawfully arrested; (2) the tent was the site of the suspected drug trafficking; (3) the search took place immediately after the arrest; and (4) the tent and its belongings were safeguarded.[24] Thus, the bylaw that permitted police to characterize his tent as waste or trash, and therefore remove it, meant that he needed to stay close to his tent at all times.[25] This led to Mr. Picard’s tent being searched as an incident to his arrest, since he was near his tent at the time that he was arrested and, therefore, his tent was able to be searched on that ground alone.[26]

The decision led to a set of problematic conclusions that ignore the reality of the lived experiences of those living in tents. Mr. Picard’s tent could not be a “home,” legally speaking, because it was located on a sidewalk contrary to a local bylaw. However, because Mr. Picard was directly next to the tent when he was arrested, the search of the tent was justified on the basis that the search was an incident of arrest. The Court did not engage with Mr. Picard’s need to remain close to his tent at all times or risk the theft or destruction of his tent and belongings, a frequent challenge for precariously housed people.[27] The Court did not consider why Mr. Picard had to remain close to his tent and belongings: if he did not continuously safeguard his belongings, city bylaws could characterize them as waste, or abandoned, and thus authorize city workers to destroy the property.[28]

In a narrow sense, Mr. Picard thus lost the highest degree of privacy rights because of municipal bylaws. The bylaw that denied the erection of tents on sidewalks and parks meant that his tent was not a legal “home,” and therefore was not afforded the reasonable expectation of privacy given to dwelling-houses. However, as we explore in this article, there are more fundamental reasons why Mr. Picard was not granted privacy rights in respect of his home.

The Picard case was appealed on numerous grounds, including whether the judge erred in his characterization of the tent.[29] The British Columbia Court of Appeal (BCCA) dismissed the appeal on other grounds. It stated, “[w]hile the question whether a tent occupied by a person in the appellant’s position is a home is a matter of significant public interest that will eventually have to be resolved,” it would not be the court to answer this question.[30] This article focuses on unpacking this latter question, that is, whether a tent may be considered a “home” and therefore entitled to enhanced privacy protection under the Charter. We do not consider the other important factors in the decision, including whether the search of the tent was justified on the basis that the search was an incident of arrest, nor the relationship between sections 8 and 24(2). We argue that the threshold question of whether a tent is a “home” requires specific, overdue analysis given its impact on precariously housed people.

II. A Legal Geography of “People, Not Places” in Section 8

Legal geography is a scholarly field that has been recognized by the British Columbia Supreme Court as an important resource in understanding houselessness.[31] Legal geography partly focuses on the spatial reasoning, metaphors, and assumptions present within legal discourse and practice, including judicial reasoning.[32] In so doing, legal geography demonstrates that the “where of law” matters as “nearly every aspect of law is located, takes place, is in motion, or has some spatial frame of reference.”[33]

A.  How Law Makes Space

Courts are institutionally powerful sites where legal geographies are articulated and contested. Judicial actors regularly construct or rely on legal-spatial composites: some generalized, such as jurisdiction, the public-private divide, and citizenship; and others more particular, such as in relation to the workplace[34] or schools.[35] This may entail consequential evaluations of particular spaces. Justice Lee, like other legal practitioners, makes space through legal categorizations. He carves the world up into consequential zones. He draws boundaries. He makes scalar distinctions. In so doing, he produces particular legal geographies, like “private space,” the “citizen,” the “municipal,” and the “national.”

Space can also be expressive, signaling certain social meanings. For example, Timothy Zick discusses the regulation of speech in public spaces in United States courts, where courts routinely uphold sweeping restrictions of speech, such as the use of “protest pens” or exclusion zones. These restrictions rest on a view of space as a neutral container or inert forum. However, space is not simply a location within which speech occurs, but is constitutive of speech in important ways.[36] Given that being in specific spaces is crucial to delivering key political messages, by denying access to certain spaces, law and legal actors participate in defining and regulating speech and dissent.[37] Thus, contemporary restrictions on public speech send a powerful signal about the value given to political dissent in particular spaces. Political speech appears as dangerous and violent, shaping political interventions and reducing engaged citizenship.

Courts also actively construct legal spaces that have particular effects on the poor. For example, anti-panhandling bylaws or statutes, which have been upheld by courts,[38] prohibit particular activities within demarcated spaces.[39] Marie-Eve Sylvestre, Nicholas Blomley, and Céline Bellot document the widespread use of spatial restrictions, or “red zones,” that are used by Canadian courts in conditions of release associated with bail or probation.[40] They note how such restrictions often efface the “lived geographies” of those subject to them, excluding vulnerable people from placed-based resources that are vital to their health and wellbeing.[41] Legally constructed spaces are often tied to particular places.[42] So, for example, a cluster of tents in a city park that prohibits overnight camping may be termed a homeless encampment, where the same grouping of tents in a provincial park that permits camping would go by no such term, even though the conduct is the same.

In deliberating on whether a tent is a “home,” Justice Lee opts to frame the issue through a property lens. As noted, the fact that Mr. Picard does not have a legal right to the land upon which his tent is situated signifies, for Justice Lee, that it cannot be a “home” for section 8 purposes. While real property operates in more complicated ways, a powerfully enshrined “ownership model” of property shapes judicial reasoning.[43] Property tends to look a particular way, in other words, echoing Felix S. Cohen’s famous description:

To the world:

Keep off X unless you have my permission, which I may grant or withhold.

Signed: Private citizen

Endorsed: The state[44]

The ownership model is also spatialized, legal geographers argue.[45] Real property is often understood as a set of rights that operate in regards to a bounded, exclusive territory. The contemporary Western liberal view of the ideal-typical form of property presumes that the rights of the owner (e.g., to use, occupy, alienate, etc.) apply uniformly across and exclusively within a defined space and are operative at all times. t is also presumed that these rights attach to an individual owner who therefore is assumed to command all the resources within this designated space. Unlike traditional notions of common right, the owner is also assumed to have the right to govern the access of others to this territory, allowing conditional access or denying it entirely. As such, the owner is assumed to have a territorial “gatekeeping function” that is not unduly constrained by the wishes and needs of others.[46]

By extension, other relationships to land, like Mr. Picard’s interest in his tent, tend not to look like property since they do not accord with this narrow territorial model. Moreover, the dominance of the ownership model invites a binary logic in which one is either an owner who is inside the protections of property, or imagined to be outside property. It follows, for example, that a person living in a tent on city land can be imagined as having a “no-property” status, even though they own the tent and have claimed the area for many years, like Mr. Picard.[47] An alternative spatial imaginary, which we explore below in a discussion of “precarious property,” argues that everyone is always “inside” property, but under differentiated conditions of relative security and vulnerability.

B.  A Legal Geography of Privacy and Home

The Picard case turns on several foundational legal geographies. Most immediately, a powerful spatialization relates to the concept of privacy. Privacy, according to a famous formulation by Samuel D. Warren and Louis D. Brandeis, is “the right to be let alone—the most comprehensive of rights and the right most valued by civilized man.”[48] As Judith Squires notes, privacy in this sense presumes territorial control:

The right to be alone includes choice about, and control over, when one is alone, and, as rights imply corresponding duties, privacy must be seen as a socially created and respected right to control when and where one appears to others. It is, however, importantly distinct from mere isolation or solitude, for privacy here involves more than simply being on your own; it entails power over the space which surrounds one.[49]

Privacy is thus fundamentally grounded in the control one has over territory. Within liberalism, privacy is conventionally imagined as a right that is produced by creating a sphere that is deemed to be private. Squires writes that privacy “is therefore most often conceptualized as a right with a spatial location: a realm is a territory with borders; a sector is an area cut from a larger whole; a sphere is an object in space.”[50]

If privacy is imagined as a “right with a spatial location,” it reaches its apogee in the legal construction of the category of “home.”[51] We think of “home” here as a particular spatial-legal composite. It may echo quotidian notions of home, while also departing from them. “Home” entails the designation of a parcel of space within the private sphere that is granted specific privacy protections. For example, privacy grants protection from unwarranted state surveillance, as seen in the jurisprudence on section 8 of the Charter below. If a space is designated as a “home,” it becomes a space into which state officials cannot enter without additional authority. “Home” denotes protection, control, and security.

“Home” in this sense is inherently territorialized, reliant upon the ability to control one’s surrounding space. To control territory, in this sense, is to control others, and in so doing “to control when and where one appears to others.”[52] A “home” is not a space of free entry, but akin to a fortification, echoing the old saw that “every man’s house is his castle.”[53] This phrase can be traced back to Semayne’s Case in 1604, reported by Edward Coke, in which the Sheriff of London entered into a house to seize property to cover a personal debt.[54] Although the Court ruled that state officials may enter the space of the home for lawful purposes, the expectation was that they would announce their purpose. Coke recounted: “That the house of every one is to him as his … castle and fortress, as well as for his defence against injury and violence, as for his repose … is a thing precious and favoured in law.”[55] The castle metaphor has been frequently invoked, being described as one of the “oldest and most deeply rooted principles in Anglo-American jurisprudence,” and one that continues to resonate.[56]

The castle doctrine invokes both moral and legal justifications for protecting one’s property and defending against perceived threats to one’s person, which are associated with an invasion of “home.”[57] The “right” to enhanced protections in relation to one’s “home” is grounded in the right to own property, which largely formally excluded all but white men in colonial North America—and continues to be linked to systemic inequality.[58] Jeannie Suk argues that the castle doctrine constructs trespass as a kind of boundary crossing “beyond the protection of the law” and into a space in which “the state monopoly on violence” is suspended.[59] Suk concludes that only certain types of homes and homeowners merit this type of protection. Other lives and bodies retain only a tenuous right to belong and inhabit, as observed by former Supreme Court of Canada (SCC) Justice Bertha Wilson, who stated, “A man’s home may be his castle but it is also the woman’s home.”[60]

C.  Privacy Rights in Canadian Law

Section 8 jurisprudence has evolved significantly in the four decades since the Charter was enacted, with the SCC’s increasing justification of state intrusions on the public right to privacy.[61] Canadian jurisprudence has consistently maintained that expectations of privacy are greatest in the “home.” Where privacy expectations are highest, state infringements, such as searches without warrants, require strong justification.

In Hunter v. Southam,[62] Justice Dickson interpreted section 8 for the first time, emphasizing that it protects “people, not places.”[63] The SCC clarified that section 8 protection was not limited to the protection of property or to its association with trespass. Instead, section 8 is about privacy and dignity. As such, the SCC stated that searches conducted without a warrant are presumptively unreasonable. At this point in the development of the law, the SCC said that for almost all cases, police are required to obtain authorization according to the “reasonable and probable grounds” standard.[64] This standard was considered a threshold that must be passed for section 8 to apply: if there was a reasonable expectation of privacy, section 8 protections applied and the court must then consider the reasonableness of the search.[65] Hunter thus departs from the sharply territorial, castle-like logic of privacy noted above. Privacy is attached to people, wherever they are located. It is not to be read from the territories they control.

However, following Hunter, the SCC modified the threshold test into a standard that offers less privacy protection, reverting to a territorial and propertied conception of section 8’s reach. Despite the continued reference to Hunter in case law today, Richard Jochelson and David Ireland describe the evolution of the law into “privacy as an interest with a caveat.”[66] In R v. Edwards, the SCC adopted the “totality of the circumstances test,” which regarded reasonable expectations of privacy on a spectrum.[67] In Edwards, the Court evaluated whether the accused had a privacy right to his girlfriend’s apartment, where he was allegedly storing drugs and selling them from his car. His girlfriend cooperated with the police and provided access to the apartment. Here, the Court held that Mr. Edwards could not exclude others from the apartment and therefore could not assert a reasonable expectation of privacy. Edwards set out a two-prong test: (1) did the accused have a right to privacy; and (2) was the search an unreasonable intrusion on that right?[68] The non-exhaustive factors to be weighed by the judge in this analysis include: presence at the time of search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access; existence of a subjective expectation of privacy; and, the objective reasonableness of the expectation.[69] This test was adopted from the United States case United States v. Gomez.[70]

The adoption of the Gomez factors in Canadian law has been heavily criticized, given that the United States Constitution expressly protects property rights, while the Canadian Charter does not. Significantly, however, the adoption of these factors marked a distinct turn from the SCC’s emphasis on “people, not places,” instead reading privacy rights based on the degree to which individuals have territorialized private property rights.[71] In our view, the Edwards test has ignored housing precarity. In applying the Gomez definition, those with precarious housing can arguably be deemed to not have “possession or control of the property or place searched” or “ownership of the property,” if the court applies these categories narrowly.[72]

In R v. Tessling, the SCC categorized privacy interests into personal, territorial, and informational privacy.[73] Personal privacy affords the highest constitutional protection, protecting bodily autonomy and the right not to have our bodies touched and explored. Territorial privacy is based on the primacy of privacy in the home where “our most intimate and private activities are most likely to take place.”[74] Informational privacy concerns “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.”[75] These categories may overlap in a given case, but are said to provide a helpful analytic tool for evaluating the reasonableness of one’s expectation of privacy. Overall, section 8 is concerned with “dignity, integrity and autonomy” and seeks “to protect a biographical core of personal information which individuals in a free and democratic society would wish to control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.”[76] In this article, we focus on territorial privacy with respect to defining the home, and informational privacy as it pertains to the intimate details and objects that are kept private within one’s home. Justice Lee, however, did not specify the nature of the privacy interest in this way in Picard.

Territorial privacy, as described in Tessling, and the emphasis on privacy in the home, are well established in section 8 caselaw.[77] The primacy of the “home” was first recognized in 1995 in R v. Silveira.[78] Two years later, in R v. Feeney, Justice Sopinka stated that the high expectation of privacy in the “home” increased in the Charter era.[79] More recently, in the 2010 case, R v. Morelli, the SCC demonstrated that unlawful searches conducted in the home are considered to be among the most serious breaches.[80] Therefore, evidence obtained from such an infringement is more likely to be excluded under section 24(2) of the Charter, with all other factors being considered.[81]

However, in the 2009 case R v. Patrick, the Court determined an accused was not afforded protection of section 8 regarding evidence obtained from a search of his garbage, which he placed at the edge of his property line.[82] The majority framed the interest as informational privacy, finding that the accused abandoned his privacy interest when the garbage was left for municipal collection, and open for any passerby to search through. The consideration of abandonment weighed heavily in the analysis, even though abandonment was only one factor within the totality of the circumstances test that the Court outlined.[83] The garbage contained highly personal information, which could reveal a “householder’s activities and lifestyle” that one would not want exposed to the public or police.[84] The criminal nature of the information did not alter this fact, as searches of private places could not be justified by “after-the-fact discovery” of criminal activity.[85] The subject matter must be framed broadly: What is the expectation of privacy within the bag itself? In any case, activities that are criminalized are precisely the personal activities that one would hope to keep from public view, including substance use.[86]

In concurring reasons in Patrick, Justice Abella characterized the privacy interest engaged around the primacy of the “home.” She argued that this high expectation and protection of privacy extended to the personal information that is revealed in the garbage.[87] While Justice Abella agreed with the result that no Charter violation occurred, she disagreed with how abandonment was framed as exposing one’s personal information to the public and police at large. Instead, people put their garbage out to be transferred to the municipal waste disposal system, with the expectation that their personal information will not be scrutinized by the state.[88]

Overall, Patrick shows the erosion of section 8 privacy rights and the SCC’s turn toward a weaker conception of privacy. This weaker conception weighs contextual factors, but this analysis disproportionately focuses on those factors that favour the interests of the state to be able to investigate and prosecute crime.[89] In Patrick, material evidence obtained is treated by the courts as a kind of information:

[I]n the context of criminal investigations, cases such as
Patrick demonstrate the court’s willingness to construct material property as a bag of information when the informational component of the search begins to take primacy in the totality-of-circumstances calculi. This informational fetishism diminished protections in the content of home and home-style searches, turning material property into information streams that are open to the state’s gaze.[90]

Jochelson and Ireland argue that the departure from a bright-line protection of territorial privacy is dangerous because it undermines the purposes of Hunter’s original test, including that Charter rights should favour the individual’s right to privacy over the state’s interest in interference.[91] The authors note that a shift away from individual privacy increases police powers, stating: “This thin conception of privacy is particularly dangerous in a context where national security is considered of paramount importance and where lukewarm protections are seen to be in the best interests of social cohesion.”[92] While territorial privacy was generally reduced in all contexts in section 8 cases, the shift particularly exacerbates the impacts on those who are precariously housed since they are further unable to protect their belongings. Picard offered an opportunity to squarely examine privacy in the context of those who are unhoused where the state has acquiesced to a person remaining on the same city block for years.

III. Precarious Homes and Reasonable Expectations of Privacy

The previous Part outlined the development of section 8 jurisprudence and the continued erosion of protection of privacy in the home generally, based on the concept of territorial privacy. In this section, we analyze Canadian case law and show that section 8 affords little protection to precariously housed people. While the latter may have homes, they do not have “homes” in the legal sense. The cases canvassed in this Part identify the places within which precariously housed people reside, yet, in no cases are they held to be homes entitled to expanded privacy rights.[93] For those with a secure home, property easily appears as a zone of autonomy, rather than one of power and relationality. However, when we focus on the precariously housed, we gain new and important insights into the workings of property. The best place to discuss ownership, therefore, may be the places in which “it appears in its absence, in confrontation with poverty, slavery, or unlawful occupation—property in the margins.”[94]

Notionally, the idea of the home as a space of privacy and autonomy is available to all: All those who have a home, be they ever so lowly, are like the mighty baron in his castle. This was famously argued by William Pitt in Parliament in 1763, and was approvingly cited in Miller v. United States:

The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement.[95]

However, the reality is that the benefits of home are far from horizontal. Instead, the benefits are reflective of the hierarchical work that property law does in structuring differentiated yet interlocking relations of privilege and vulnerability.

To develop this argument, we draw on the concept of “precarious property.”^[96] According to Blomley, real property rules that govern access to shelter should not be thought of as creating an in or out binary, such that one is either inside or outside property.[97] Rather, on the principle that we all access shelter through and in relation to others—whether one is an owner-occupier, tenant, or trespasser—property can best be thought of as a set of graduated relationships, governing access and use. Property law and discourse frames these relationships in differentiated ways, privileging particular relations—notably upholding fee simple property. However, for most people, access and use of property for shelter depends on privileged others who grant access under legally framed terms.[98] Shelter depends on negotiating what we can term a precarious property relationship, defined as “a right or tenancy held at the favour of and at the pleasure of another person, signifying a vulnerability to the will or decision of others.”^[99] In this sense, people who are houseless are not property-less, but have far fewer rights to protect their property than those with secure housing. They know full well the relational work of property law that renders them more vulnerable.^[100] Tenants, for example, “live under a precarious roof,” with lesser interests in land than owners, who maintain a reversionary interest and the power to evict.^[101] In this sense, property relations and “property law [work] to place us in positions of relative security and vulnerability,”[102] shaped by histories of colonialism, racialization, and capitalism.

A.  Whose Home is a “Home”?

Clearly, people make their homes in many settings, or develop expectations of privacy in many locations. At times, the courts have recognized that such spaces have “home”-like qualities.[103] Yet a review of case law on reasonable expectations of privacy in precarious housing contexts reveals that not all homes are equal with respect to privacy protection. A willingness to find a high expectation of privacy in one’s home, if the court even considers the space as such, is significantly influenced by contextual factors concerning the precarity of the property interest. Those who access shelter through precarious property relations tend to have less privacy protection than those whose property interest accords with the dominant legal geographic conception of the home as a territorial castle. We canvass a few of these spaces below.

1.    Provisional Accommodations and Couch-Surfing

Couch surfing and short-term stays at friends, family, and acquaintances’ homes are commonly cited in the Vancouver “homeless count.”[104] A review of section 8 cases shows that persons staying at others’ homes are offered almost no privacy protection. In the Edwards case discussed above, the SCC said that a third party could not access section 8 protections. The accused held property at his girlfriend’s home and had a key to access the unit, but he was not listed on the tenancy agreement, did not pay rent, and was described as “no more than an especially privileged guest.”[105] In his concurring opinion, Justice La Forest critiqued the majority’s adoption of United States law and its emphasis on property interests, and argued that privacy is a broad public right which should not be eroded by excluding third party section 8 breaches.[106] Justice Abella dissented in the Ontario Court of Appeal (ONCA) decision, as the majority decision failed to account for the social realities of the relationship—Mr. Edwards and his girlfriend had been together for three years, he had a key, and had unrestricted access. Given this, Justice Abella argued that he had a reasonable expectation of privacy at his girlfriend’s home.[107]

2.    Vehicles and Trailers

Many people identified as houseless may live in their vehicles.[108] Nevertheless, prior scholarship has noted the stigma around “trailer trash” discourse and precarious living in mobile home parks, where the risk of eviction is high.[109] As well, in a report published by Pivot Legal Society involving interviews with precariously housed people throughout British Columbia, participants noted the challenge of finding parks where they could legally park their trailer.[110] Research on mobile home parks in Alberta has also shown that many trailers in mobile home parks are in disrepair, as they were not intended for long-term use, but the people who live in trailers depend on them.[111]

There is extensive case law on warrantless searches of vehicles, yet these cases largely do not engage with an analysis of whether the vehicle constitutes a “home.” Instead, vehicles are classified as distinguishable from “homes,” given the existence of statutory schemes which regulate driving for public safety and reduce reasonable expectations of privacy.[112] For example, in R v. Nolet, the accused was pulled over in an empty commercial tractor-trailer and evidence was obtained in a warrantless search of the vehicle’s sleeping portion.[113] The accused did not testify about his subjective belief as to the vehicle’s sleeping portion. However, the SCC presumed that a reasonable expectation of privacy would be expected within the sleeping portion, given that it was a temporary mobile home. Nevertheless, because the vehicle was also a place of work, the whole vehicle was subject to a low expectation of privacy.[114] Therefore, even if a vehicle functions as a home, the high expectation of privacy is significantly eroded if the vehicle also functions as a workspace.

In contrast, trailers are considered “homes.” In Feeney, the SCC reinforced the importance of the primacy of privacy in the home with respect to a trailer.[115] However, there is little engagement in the SCC decision as to how the trailer qualifies as a “home,”[116] even though this case has frequently been cited for its proposition that the home affords the highest protection of privacy and that searches incident to arrest are presumptively unreasonable.[117] It is not clear, for example, whether a court would consider a trailer a home if it is located on land illegally. Unlike in Picard, the BCCA and SCC in Feeney did not consider the legal status of the land on which the trailer resided. Thus, someone who owns a trailer on land that they lawfully rent may have more constitutional protection than someone residing in a trailer that is unlawfully residing in a park. This is regardless of the fact that both trailer residents might in fact have the same subjective privacy expectations with respect to their living space and belongings.

3.    Lockers

The reasonable expectation of privacy expected for a rented locker may provide some guidance on the expectation of privacy that a court would afford to a shelter. In R v. Buhay, the SCC found that the accused had a reasonable expectation of privacy in the contents of a locker, even though the owner of the locker had a master key.[118] In this case, the police breached section 8 and the illicit drugs found within the locker were excluded, per section 24(2). While privacy was protected in this case, the SCC also clarified that the expectation of privacy in a rented locker is less than the expectation of privacy one has in the home, or even in an office.[119] It should be noted that this decision may have been different if notices were posted by the owner of the locker, reserving a right to inspect the contents.[120] Don Stuart has hypothesized that this case could apply to searches conducted in shelters or perhaps to landlords who enter rental premises pursuant to the existence of right to inspect conditions.[121]

4.    Tents and Other Personal Property Items

The Picard case best illustrates that Canadian courts do not extend section 8 privacy protections to people living in severe housing precarity, given the failure to regard Mr. Picard’s tent as a “home.” There is a rich body of research that considers how home is subjectively defined outside of the property law context,[122] and the Edwards factors consider this subjective belief as relevant to the inquiry of the expectation of privacy. However, Justice Lee largely dismissed Mr. Picard’s characterization of his tent as a home.

Justice Lee referred to R v. Howe, where a tent was considered a dwelling-house as it related to establishing the offence of breaking and entering.[123] In that case, the tent was used by four people sleeping within it. Justice Lee distinguished Howe from Picard as the tent in Howe was located on land which the occupants had legal authority to be on, contrary to Picard. According to this distinction, a tent can constitute a “home,” but will lose this character if trespass is committed with regards to the land on which the tent sits—if a precarious property relation exists, in other words. This reasoning leads to the logical conclusion that those who are precariously housed, especially those who are living in tents on city streets, will almost inevitably not have a “home” in law. Therefore, they will be subject to increased precarity, including the possibility of seizure and disposal of tents as waste under municipal bylaws. In contrast, if seizure and disposal of tents (or any other possessions) were to take place on property legally characterized as “home,” the result would be criminal liability for breaking and entering.

In reaching his determination that a tent is not a “home,” Justice Lee also cited the trial decision in R v. Sappier, where the Court stated that “[t]he use to which the structure is put very often determines its character” and, as such, “very rudimentary housing can qualify as a dwelling house.”[124] Similarly, Justice Southin’s dissent in R v. Grant stated that, hypothetically, a “packing case in which a ‘homeless’ person sleeps and keeps his few pitiful belongings” may meet the definition of a dwelling-house.[125] Grant is not a case centrally concerned with the issue of whether tents are dwelling-homes, and involved facts concerning a house which had not yet been occupied.[126] The Grant decision was also reversed on appeal to the SCC. However, the SCC referred to Justice Southin’s dissent in their rejection of the BCCA’s majority opinion and did not expressly reject the hypothetical scenario described.[127] This was not, however, the central question at stake in the appeal, leaving the question untouched. While this case law could be used to argue that the personal property of people experiencing houselessness, such as a tent, may be considered a “home” by Canadian courts, the real impediment is any legal prohibition on using the land underlying the tent.

B.  The Territorial Boundaries of “Home” beyond Section 8

Overall, Canadian courts have recognized reasonable expectations of privacy in some precarious housing contexts, but this privacy interest is often further territorially constrained by the limited property interests the claimant has in the space. In some cases, courts have refused to carve out any space, like in Picard, where Justice Lee acknowledged that Mr. Picard owned the tent, but the tent was located on city property that he illegally occupied. The Court was unwilling to recognize an expectation of privacy within the confined territory inside the tent that could engage section 8 protection.[128] As well, in Nolet, the SCC refused to carve out space within the truck-trailer where one would expect a higher expectation of privacy in the sleeping portion of the truck, given that the truck was also used for work.[129]

In tenancy contexts, courts are careful to draw boundaries of where section 8 protection applies. This specification can either enhance or reduce a tenant’s privacy interest. For example, in R v. Golschesky, the Saskatchewan Court of Appeal (SKCA) found that a warrant issued to search a house was improper to use for an apartment that was attached to the house but rented out separately.[130] The accused in this case was a tenant in an upstairs self-contained apartment within a house, but with a separate street entrance. The SKCA held that the warrant needed specific language explaining which portion of the house the search applied to, which enhanced the accused’s access to section 8 protection in this case.[131] In R v. Clarke, the BCCA held that where occupants share common areas and one occupant allows the police to search those common areas, there is no section 8 breach.[132] However, the accused in Clarke was the owner of the home and the tenant, who he had a “friendship, business relationship and sexual relationship with,” granted permission to search the common area.[133] When the police extended their search, looking under a pile of clothes that belonged to the accused, this was deemed a breach of his section 8 privacy interest.[134] This case contrasts with Edwards, where the accused was merely a privileged guest—not a tenant—and the SCC would not extend an expectation of privacy to his property that he kept within his girlfriend’s house.[135]

According to the ONCA in R v. Laurin, reasonable expectations of privacy in tenancy contexts also do not extend to common areas that other tenants in a building or complex share.[136] In that case, the police trespassed on the landlord’s property, but smelling cannabis in the hallway did not engage the accused’s section 8 interests because the police did not require the tenant’s permission to be there.[137] In stark contrast, the Ontario Superior Court (ONSC) in R v. Harris—citing Laurin—stated that a reasonable expectation of privacy would be extended to shared spaces, including the hallway, for occupiers who have ownership in a condominium, complex, or apartment.[138] However, in R v. Prince in 2019, the ONSC departed from Harris and stated that if there is a reasonable expectation of privacy within common areas of condominium buildings, then it should exist for both renters and owners.[139]

If terms of a lease specify that certain areas are subject to the control of the landlord, the tenant’s expectation of privacy does not extend into those spaces either. For example, in R v. Arason, the accused had no reasonable expectation of privacy on the roof as a tenant, given that the lease agreement reserved control of the roof to the landlord.[140] In contrast, in R v. DiPalma, the fact that the strata corporation conducted roof repairs did not reduce the expectation of privacy for the accused, who was the owner of the unit.[141] The BCCA held that the police breached section 8 by not obtaining permission from each individual owner to access the roof. However, the evidence was ultimately admissible under section 24.[142]

In sum, expectations of privacy in the home are reduced territorially in accordance with property precarity. Limitations on expectations of privacy are directly related to the precarity of the property interest. Courts are often unwilling to recognize privacy interests in tents, commercial trucks, and people who couch-surf, where these precarious “homes” exist alongside other private property interests. Further, in tenancy, privacy is limited by reversionary interests of landlords and does not extend to shared common spaces, as it may extend to property owners. Fewer constraints on privacy exist in the homes of property owners.[143]

IV. Reduced Privacy in the Regulation of Public Spaces: Reimagining the Legal Geography of Home

Case law on spaces such as trailers suggests that spaces that are very clearly homes to many are not “homes” insofar as the courts are concerned. Much of this turns on the fact that people in such situations have less control—they are at threat of eviction, they are not on the rental agreement, or they are on city land—by virtue of the lack of property rights they enjoy. They have only some of the sticks in the bundle and are in precarious property situations because access to their homes is limited by others who hold the dominant interest.[144] Privacy rights are thus tied to the right of control.[145]

Consider Mr. Picard’s tent—he controls access, uses it to secure his things, and considers it his home. But is it a legal “home”? No, the Court concludes, because Mr. Picard does not have a legal right to keep the tent on land to which he does not have a property interest. He has possession, but not title. Unlike the fee simple owner, he does not have a legally recognized right to use the land under his home. The fact that he lives on city land means that he is “homeless.” Thus, section 8’s legal conception of “home” is generally unavailable to those who do not have some claim to the land underlying where they live. In effect, Justice Lee renders a houseless person legally “homeless” as a result. As Picard illustrates, the Court’s focus on bylaws that prohibit camping is the basis upon which there is no reasonable expectation of privacy in his tent as a home. The only real distinction between Mr. Picard’s tent and the tent in Howe was the fact that Mr. Picard’s tent was located on the sidewalk in violation of city bylaws.[146] Similarly, in Feeney, a mobile home was recognized as a “home” that deserved a high degree of privacy protection because the claimant maintained a legal interest in the land.[147]

Bylaws and laws across North America over-regulate the daily lives of people living in public spaces.[148] As Terry Skolnik notes, those who are houseless lack the freedom to perform their basic needs without interference from the state, owing to municipal bylaws and restrictions.[149] In Canada, provincial statutes such as Safe Street Acts regulate panhandling and municipal bylaws proscribe public order.[150] Quebec is a key example of the use of municipal bylaws to over-regulate houseless people, but such bylaws exist in urban centres across the country, including Ottawa and Winnipeg.[151] In the United States, these laws are often referred to as “quality of life ordinances” and include prohibitions on camping in public spaces. The rise of punitive bylaws coincided with the rise of houselessness and neoliberalism in the 1970s. More powerful groups pushed to “reclaim” public spaces such as sidewalks and parks from the precariously housed.[152] These laws prevent houseless people from forming “home-like spaces” by forcing people to isolate, thereby worsening their housing precarity.[153] Many people living in their vehicles are displaced through bylaws that prohibit parking in public places, yet there are limited options for affordable rentals in mobile home parks.[154]

In Vancouver’s DTES, researchers have also documented how increased police presence and enforcement of parole and bail area restrictions affect residents’ ability to access necessary harm reduction services.[155] To Christopher Essert, the lack of protection for houseless people means that they neither have the ability to lawfully exclude others, nor the ability to protect themselves from others’ power of exclusion.[156] Such restrictions are not equally distributed: race, gender identity, sex, sexual orientation, age, and disability status (including substance use disorders) are significant factors for the increased risk of becoming houseless. For example, thirty-nine per cent of the houseless population in a recent Vancouver survey identified as Indigenous, despite only making up two per cent of the city’s population.[157] The unequal burdens of housing precarity for these groups render them even more vulnerable without a guarantee to section 8 Charter protection.

While it is clear that Justice Lee relies on a particular understanding of property and space to make his determination, at least four consequential legal geographies are marginalized in his reasoning in Picard. First, it is unsurprising that there are very few cases considering whether tents can be considered homes for the purposes of section 8 of the Charter. This reflects the experiences of law in a place such as the DTES. Making a section 8 argument requires access to legal assistance. For every discrete legal argument and application advanced, additional legal services are needed. In Picard, Justice Lee considered whether the evidence from the tent should be excluded before the trial itself. The more resources a defendant has, the more luxury they have to challenge each element of a case. Because government funding is minimal, legal aid lawyers have to make strategic decisions about which arguments are just not worth advancing. People in the DTES who are constantly policed and charged are unlikely to make section 8 applications. Instead, they simply take plea bargains or are diverted into drug court. So, we are less likely to see a rich jurisprudence of considerations of “home” where precariously housed defendants are involved.[158]

Second, the legal-spatial category of “home” is often used to penalize houseless people, like Mr. Picard. As Stephen Przybylinksi observes, the precarious nature of the property interest that members of a sanctioned encampment hold ensures that they are unable to assert privacy rights.[159] Yet, those living in tent encampments “often [assert] alternative notions of home grounded in community rather than family, mutual care rather than institutional care, and appropriation rather than consumption.”[160] However, state officials struggle to see alternative domestic spaces such as tent encampments as homes. Indeed, as Jessie Speer notes, the assumption that houseless encampments are non-homes renders them worthy of destruction.[161] Drawing from an analysis of housing projects and houselessness encampments in Fresno, California, Speer demonstrates that “anti-homeless policing and housing provision mutually constrain [houseless] people’s expressions of home, such that struggles over domestic space have become integral to the contemporary politics of US [houselessness].”[162]

Third, Justice Lee did not ask why Mr. Picard sleeps in a tent. To do so would require a systemic analysis of processes of expulsion and exclusion, many of them spatialized (e.g., eviction). Precisely because of these systemic processes, he is forced to sleep in a tent, in the heart of the city. This places him into a space of heightened risk and vulnerability. Moreover, the fact that he lives in the DTES places him in a space of hyper-surveillance by state actors. It is thus likely that his life—like that of criminalized and marginalized people in general, and particularly houseless people—is one of radical visibility and surveillance by both state and private actors.[163] As Andrea Brighenti notes, while “the search for visibility is in many cases a search for social recognition – visibility as empowerment,” being seen and watched leads to subjugation and disempowerment.[164] Visibility is a double-edged sword: while we need visibility for recognition, visibility can quickly become surveillance. This exacerbated visibility shows just how important privacy is to houseless individuals. As such, the importance of privacy in Mr. Picard’s case is arguably even more significant than for a housed person, who can lock their doors. The section 8 test for evaluating a reasonable expectation of privacy suggests that a contextual analysis is possible based on the totality of the circumstances test.[165] However, the reasonable expectation of privacy in Mr. Picard’s case was evaluated as low, despite there being many factors that should have been in his favour—he had not abandoned his tent and he had a high subjective expectation of privacy in the subject matter since he regarded the tent as a home and held intimate property items within the tent (e.g., hygiene products and illicit drugs and paraphernalia). Instead, the totality of the circumstances test emphasizes the real property interest above the other factors within the contextual analysis. This emphasis mischaracterizes the principles articulated within the test, as well as the values that underpin section 8 including dignity, integrity, and autonomy.

Fourth, Justice Lee’s conclusion that the tent was not a “home” due to the lack of compliance with municipal bylaws raises serious questions about how bylaw enforcement should be understood. Informal housing, such as Mr. Picard’s tent, necessarily entails non­compliance with existing property laws, land ­use regulations, and building codes.[166] Informality is often characterized as an alternative to state law. However, as Ananya Roy argues, informality is best thought of not as in opposition to state law, but rather as a form of calculated deregulation by the state.[167] The state unevenly ignores and legitimates certain extralegal housing market activities, while condemning and seeking to eradicate others.[168] For example, in Vancouver, the city government routinely turns a blind eye to illegal secondary suites except in very narrow circumstances, even though they are contrary to municipal bylaws.[169] This selective enforcement of existing rules and laws means that not all non­compliant housing is equally informal. It suggests that some informal housing, but not all, is grounded in a property interest otherwise considered legitimate. Informal housing is not uniform; it requires an analysis beyond simply which rules and laws govern land, but also which of these rules are actively enforced by the state, and in which contexts. By its very nature, the reality of having no formal housing means that a person will be subject to rules of land owned by another.[170] A blanket view that all such housing is not a “home” is counter to the experiences of those living within tents, whose expectations include security, protection, and mutual organization. Moreover, the reliance on the sanctions of particular bylaws to determine the application of other laws embodies Mona Lynch’s observations that criminal and penal law are shaped by local norms and culture.[171]

In our view, the determination of “home” based on bylaw compliance is based on characterizations of property, privacy, and political recognition that are ultimately exclusionary.[172] Within the logic of propertied citizenship, the precariously housed appear as dependent subjects in need of discipline and management. They are viewed as incapable of knowing or acting in their own best interests.[173] Yet, attempts by low-income people to attain political or legal recognition as active, rights-bearing citizens require a level of public visibility that is fraught with difficulty.[174] Close attention to the geographic characterization of privacy in relation to houselesness offers a useful and powerful lens to better understand how the construction of the houseless as citizenship’s “other” is produced, maintained, and contested in urban space.

Privacy has long been considered fundamental to liberal conceptions of citizenship.[175] Citizenship is understood most immediately as a legal status. If one is a citizen, they are a member of a polity with rights protections and privileges which are conferred on them by the state. Within the liberal tradition specifically, citizenship is predominantly realized by protecting individualized rights.[176] Primary among those rights are property rights and the right to acquire property.[177] Historically, property ownership itself constituted liberal citizenship, albeit only for white males.[178] Although property ownership no longer demarcates individual citizenship, property rights and the liberal values associated with ownership remain a prominent aspect of citizenship within liberal democracies today.

It follows from the notion that property remains indispensable to liberal citizenship that one cannot have certain citizenship rights and privileges protected without ownership or access to property. The ownership of, and ability to access, land is a relationship with property that is particularly fraught for houseless people.[179] Without a secure interest in property—that is, by not having the legal rights to access propertied space for oneself—houseless people are denied citizenship protections essential for securing their livelihoods. Such a model of propertied citizenship maintains the ability for those with secure interests in property to leverage their power against those without secure interests in land through economic, political, and legal means. As Roy argues, the liberal “paradigm of propertied citizenship” recognizes only the formal rights of property to which all informal claims to space are deemed ineligible and thus outside of proper citizenship.[180] From this perspective, to be a propertied citizen is to have one’s citizenship benefits protected, if not promoted, over those lacking a secure interest in property.[181] But this creates a double-bind: the logic of propertied citizenship means that one’s lack of private property signifies one’s moral unfitness for the exercise of rights-bearing citizenship.[182]

      Picard is a product of an overall degradation of privacy protection under section 8, which has disproportionately deprived precariously housed people of the protection of privacy, dignity, integrity, and autonomy. Many contextual factors favoured the protection of Mr. Picard’s home, including his subjective belief that the tent was his home, the fact that he had not abandoned the tent, and the personal and intimate information revealed within the tent. Despite these factors, Justice Lee appeared to be focused on property law interests that prohibited camping on the sidewalk. Because Mr. Picard’s access to shelter was precarious, his right to privacy was diminished. Because he was houseless, in other words, he became “homeless” in law.

The outcome of the Picard case is part of a broader development of section 8, where precarious property relations are afforded less protection than people with stronger property interests. Justice Lee could have adopted a contextual analysis that recognized a tent as a home and reflected concern for the human dignity of people who are precariously housed, instead of disproportionately weighing a real property interest against other interests. While Justice Lee took judicial notice of Vancouver’s housing crisis, he could have put more weight on this fact. He could have also considered the longstanding gaps in adequate housing for the most vulnerable. Finally, Justice Lee could have noted the state’s tolerance of Mr. Picard’s presence on city streets, rather than simply concluding that Mr. Picard did not have the legal right to erect a tent on the city sidewalk.[183] A contextual analysis would have recognized Mr. Picard’s heightened expectations of privacy such that the Crown would need to justify the search under section 8 of the Charter. Such an interpretation could have been grounded in the principles the SCC has already laid out for us. Mr. Picard had a greater need of privacy protection—perhaps, even more so than those with more secure property interests.[184]

Conclusion: Restoring Home to the Houseless

Warren and Brandeis, in their seminal paper, argued that the right to privacy is needed to prevent an exposure to others that may injure the very core of the individual’s personality—“his estimate of himself.”[185] Yet, for individuals experiencing houselessness, this fundamental right is systematically denied. On the surface, this denial seems obvious. Privacy and property have long gone hand in hand. As Blomley points out, a dominant perspective views the function of property as “serving to protect the privacy of the individual.”[186] From this it is easy to surmise that those who lack the privilege of property likewise lack the privacy it affords. While true, this reading belies a more complicated reality. Not only are those experiencing houselessness routinely denied the material constitutional privacy protections as a consequence of their lack of property, but, within the logic of propertied citizenship, one’s lack of private property signifies one’s moral unfitness for the exercise of rights-bearing citizenship. Thus, as Roy argues, it is ultimately houseless persons’ lack of access to private property and its privileges that justifies the usurpations of their privacy embodied by the “spatial techniques of fortification, eviction, and surveillance that are used to manage the homeless.”[187]

In 1997, before Justice La Forest retired from his position on the bench, he strongly criticized the turn in section 8 jurisprudence in R v. Belnavis.[188] In his dissent, he critiqued the majority’s emphasis on “legalistic property concepts” rather than emphasizing citizens’ actual expectations of privacy and protection from state interference.[189] This approach creates unequal protection of the law and is “wholly inappropriate in a free society and quite simply disturbing in its general implications.”[190] In scathing words he wrote, “The majority pay lip service to the proposition, insisted upon in Hunter … that [section] 8 of the Charter was intended to protect people not places.”[191] Justice La Forest also accused the majority of having little “feel” for the fact that section 8 cases come before courts when crimes have been committed, but that these cases set the boundaries of police powers for all people in their everyday interactions.[192]

Justice La Forest’s words are even more relevant today. This analysis, and other analyses of section 8 jurisprudence,[193] have documented the continued erosion of section 8 even after Justice La Forest’s warnings in 1997. Picard may be the first case where a Canadian court has been directly tasked with assessing warrantless searches of people on the extreme ends of property precarity, that is, living in tents. However, outside judicial scrutiny, the erosion of section 8 privacy has been felt acutely in the daily lives of people living precariously, whose most intimate living activities and belongings are subjected to perpetual police intrusions.[194] These police intrusions render people even more vulnerable, given the overrepresentation of Indigenous peoples, people victimized by violence, people who use drugs or people who struggle with addiction, and other groups who experience structural disadvantages in society and who are experiencing houselessness. The Charter is meant to protect all people. An emphasis on private property interests in section 8––as opposed to the spaces that are, in fact, homes to precariously housed people––clearly deprives some groups of constitutional protection more than others by emphasizing places, not people.

                                               

[1]     See R v Picard, 2018 BCPC 344 [Picard].

[2]     Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[3]     See Picard, supra note 1.

[4]     See generally Nicholas Blomley, Alexandra Flynn & Marie-Eve Sylvestre, “Governing the Belongings of the Precariously Housed: A Critical Legal Geography” (2020) 16 Annual Rev L & Social Science 165.

[5]     Charter, supra note 2, s 8.

[6]     See Stephenson Strobel et al, “Characterizing People Experiencing Homelessness and Trends in Homelessness Using Population-Level Emergency Department Visit Data in Ontario, Canada” (20 January 2021) at 14, online: Statistics Canada <www150.statcan.
gc.ca> [perma.cc/NG4N-H5PU].

[7]     See Picard, supra note 1 at para 11.

[8]     See ibid at paras 12–13; City of Vancouver, by-law No 8735, City Land Regulation By-law (30 March 2022), s 3(d) [City Land Regulation By-law].

[9]     SC 1996, c 19, s 5(2); Picard, supra note 1 at para 2.

[10]    See Picard, supra note 1 at para 37.

[11]    See Urban Matters CCC & BC Non-Profit Housing Association, “Vancouver Homeless Count 2018” (2018) at i, online (pdf): City of Vancouver <www.vancouver.ca> [perma.
cc/D93U-ZJVY].

[12]    See Homelessness Services Association of BC, BC Non-Profit Housing Association & Urban Matters CCC, “Vancouver Homeless Count 2019” (2019) at 15–16, online (pdf): City of Vancouver <www.vancouver.ca> [perma.cc/Y47T-C8QP]. The Vancouver Homeless Counts of 2018 and 2019 include those who do not “have a place of their own where they pay rent and can expect to stay for 30 days” as homeless (ibid at 9). This includes people who are unsheltered—“staying on the street, in alleys, doorways, parkades, vehicles, on beaches, in parks and in other public places and/or using homelessness services or staying in hospitals or jails and had no fixed address,” and people staying at someone else’s place where they did not pay rent (i.e., couch surfing) (ibid). This definition also includes sheltered people staying in temporary emergency shelters, detox centres, and transition houses (see ibid).

[13]    See ibid at 23.

[14]    See Marie-Eve Sylvestre, Nicholas Blomley & Céline Bellot, Red Zones: Criminal Law and the Territorial Governance of Marginalized People (Cambridge, UK: Cambridge University Press, 2019) at 5–6.

[15]    We do not consider section 24(2) arguments. Our argument focuses specifically on whether a tent is a “home” and, therefore, whether section 8 provides privacy rights for houseless individuals residing in tents.

[16]    Criminal Code, RSC 1985, c C-46, s 2 [Criminal Code].

[17]    R v Young, 2011 ONCJ 904 at 9.

[18]    Picard, supra note 1 at para 38.

[19]    Ibid at para 36.

[20]    Ibid at para 39.

[21]    Ibid at para 40.

[22]    See ibid at para 43, citing R v Saeed, 2016 SCC 24 at para 37.

[23]    See Picard, supra note 1 at para 42.

[24]    See ibid at paras 46–47.

[25]    See City Land Regulation By-law, supra note 8, s 3(c).

[26]    See Picard, supra note 1 at para 48.

[27]    See generally Blomley, Flynn & Sylvestre, supra note 4.

[28]    See City of Vancouver, by-law No 8417, Solid Waste By-law (8 December 2021).

[29]    See R v Picard, 2020 BCCA 107 at para 6.

[30]    Ibid at para 12.

[31]    See e.g. Federated Anti-Poverty Groups of BC v Vancouver (City), 2002 BCSC 105 (in this case, one expert report used a legal geography framework to help guide the Court in understanding panhandling in the context of adjudicating Charter rights); Abbotsford (City) v Shantz, 2015 BCSC 1909.

[32]    See generally Nicholas K Blomley, Law, Space, and the Geographies of Power (New York: Guilford Press, 1994); Irus Braverman et al, eds, The Expanding Spaces of Law: A Timely Legal Geography (Stanford: Stanford University Press, 2014); David Delaney, “Legal Geography I: Constitutivities, Complexities, and Contingencies” (2015) 39:1 Progress in Human Geography 96; Luke Bennett & Antonia Layard, “Legal Geography: Becoming Spatial Detectives” (2015) 9:7 Geography Compass 40.

[33]    Braverman et al, supra note 32 at 1.

[34]    See Nicholas K Blomley & Joel C Bakan, “Spacing Out: Towards a Critical Geography of Law” (1992) 30:3 Osgoode Hall LJ 661.

[35]    See Damian Collins, “Legal Geographies­—Legal Sense and Geographical Context: Court Rulings on Religious Activities in Public Schools” (2007) 28:2 Urban Geography 181.

[36]    See Timothy Zick, “Speech and Spatial Tactics” (2006) 84:3 Tex L Rev 581.

[37]    See Sylvestre, Blomley & Bellot, supra note 14 at 206–07.

[38]    See e.g. R v Banks, 2007 ONCA 19. See also Emily Mathieu, “Safe Streets Act to Be Challenged in Court”, The Star (22 June 2017), online: <www.thestar.com> [perma.cc/QY4P-5TVL] (Fair Change Community Legal Services in Toronto launched a new constitutional challenge in 2017 against the Ontario Safe Streets Act, 1999, SO 1999, c 8).

[39]    See e.g. Dina Graser, “Panhandling for Change in Canadian Law” (2000) 15 J L & Soc Pol’y 45 at 49­–55; Nicholas Blomley, “How to Turn a Beggar into a Bus Stop: Law, Traffic and the ‘Function of the Place’” (2007) 44:9 Urban Studies 1697 at 1699.

[40]    See generally Sylvestre, Blomley & Bellot, supra note 14.

[41]    Ibid.

[42]    See e.g. Nicholas Blomley, “Homelessness, Rights, and the Delusions of Property” (2009) 30:6 Urban Geography 577 at 583–85; Nicholas Blomley, “The Right to Pass Freely: Circulation, Begging and the Mobile Self” (2009), online (pdf): SSRN <www.
ssrn.com> [perma.cc/UHQ7-XU7G].

[43]    Joseph William Singer, Entitlement: The Paradoxes of Property (New Haven: Yale University Press, 2000) at 3–5.

[44]    Felix S Cohen, “Dialogue on Private Property” (1954) 9:2 Rutgers L Rev 357 at 374.

[45]    See e.g. Nicholas Blomley, “The Territory of Property” (2016) 40:5 Progress in Human Geography 593 at 597.

[46]    See Larissa Katz, “Exclusion and Exclusivity in Property Law” (2008) 58:3 UTLJ 275.

[47]    See Jane B Baron, “Homelessness as a Property Problem” (2004) 36:2 Urban Lawyer 273.

[48]    Olmstead v United States, 277 US 438 (1928) at 478. See also Samuel D Warren & Louis D Brandeis, “The Right to Privacy” (1890) 4:5 Harv L Rev 193 at 193.

[49]    Judith Squires, “Private Lives, Secluded Places: Privacy as Political Possibility” (1994) 12:4 Environment & Planning D: Society & Space 387 at 390.

[50]    Ibid at 392.

[51]    Ibid.

[52]    Ibid at 390.

[53]    Semayne’s Case (1604), 5 Co Rep 91a at 91b, 77 ER 194.

[54]    See ibid.

[55]    Ibid.

[56]    Jonathan L Hafetz, “‘A Man’s Home is his Castle?’: Reflections on the Home, the Family, and Privacy during the Late Nineteenth and Early Twentieth Centuries” (2002) 8:2 Wm & Mary J Women & L 175 at 175.

[57]    See Jeannie Suk, At Home in the Law: How the Domestic Violence Revolution is Transforming Privacy (New Haven: Yale University Press, 2009) at 56.

[58]    See ibid at 19–20.

[59]    Ibid at 59.

[60]    R v Lavallee, [1990] 1 SCR 852 at 888–89, [1990] 4 WWR 1.

[61]    See recently Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver: UBC Press, 2019).

[62]   [1984] 2 SCR 145, 11 DLR (4th) 641 [Hunter].

[63]    Ibid at 158–59, citing the United States Supreme Court in Katz v United States, 389 US 347 (1967) at 351.

[64]    Hunter, supra note 62 at 147.

[65]    See Jochelson & Ireland, supra note 61 at 24–64.

[66]    Ibid at 25.

[67]    [1996] 1 SCR 128, 132 DLR (4th) 31 [Edwards].

[68]    See ibid at para 45.

[69]    See ibid.

[70]    See ibid, citing United States v Gomez, 16 F (3d) 254 (8th Cir 1994) at 256 [Gomez]. While Canada has borrowed the legal test for privacy from the United States, the unique constitutional structures, specific legislative terminology, and the development of case law have led to different decisions in relation to tent encampments and privacy. In State of Washington v Pippin, police visited a man living in a shelter that he had fashioned by draping a tarp over a fence and a guardrail in Vancouver, Washington (403 P (3d) 907 (Wn App 2017)). When officers knocked on the tarp, Mr. Pippin told them he was just waking up and would come out shortly. Instead of waiting for Mr. Pippin to emerge, officers lifted the tarp, revealing Mr. Pippin sitting up in his makeshift bed; as Mr. Pippin got out of bed, officers saw a bag containing methamphetamine. The State Court of Appeals held that by entering Mr. Pippin’s tent without permission, police conducted an unlawful warrantless search of his home, violating Article I, section 7 of the Washington Constitution, which mandates that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law” (ibid at para 21). In addition, the doctrine of “trespass to chattels” does not require a reasonable expectation of privacy, protecting personal property interests in Fourth Amendment cases (see David Reichbach, “The Home Not the Homeless: What the Fourth Amendment has Historically Protected and Where the Law is Going After Jones” (2012) 47:2 USF L Rev 377 at 391–93).

[71]    See Don Stuart, Charter Justice in Canadian Criminal Law, 6th ed (Toronto: Carswell, 2014) at 295–96.

[72]    See Edwards, supra note 67 at para 45.

[73]    2004 SCC 67 at para 20 [Tessling].

[74]    Ibid at para 22.

[75]    Ibid at para 23.

[76]    Ibid at para 25, citing R v Plant, [1993] 3 SCR 281 at 293, 84 CCC (3d) 203.

[77]    See ibid at para 22.

[78]    [1995] 2 SCR 297, 124 DLR (4th) 193.

[79]    [1997] 2 SCR 13, 146 DLR (4th) 609 [Feeney].

[80]    2010 SCC 8.

[81]    See ibid.

[82]    2009 SCC 17 [Patrick].

[83]    See ibid at para 27 (the full test for this particular factual scenario is articulated at this pinpoint, drawing on the totality of the circumstances test and its articulation for informational privacy in Tessling (supra note 73)).

[84]    Ibid at para 30.

[85]    Ibid at para 32.

[86]    See ibid.

[87]    See ibid at para 77.

[88]    See ibid at paras 76–92.

[89]    See Richard Jochelson, “Trashcans and Constitutional Custodians: The Liminal Spaces of Privacy in the Wake of Patrick” (2009) 72:2 Sask L Rev 199; Jochelson & Ireland, supra note 61 at 42–44.

[90]    Jochelson & Ireland, supra note 61 at 62.

[91]    See ibid at 22–23.

[92]    Ibid at 63.

[93]    See Homelessness Services Association of BC, supra note 12 at 24 (sixty-one per cent of people who were recorded as unsheltered indicated spending the night outside, while seventeen per cent reported staying at someone else’s place or couch-surfing, eleven per cent stayed in a tent or makeshift structure, five per cent stayed in a vehicle or RV, and four per cent stayed in another unspecified place).

[94]    AJ van der Walt, “Property and Marginality” in Gregory S Alexander & Eduardo M Peñalver, eds, Property and Community (Oxford, UK: Oxford University Press, 2010) 81 at 90. See also AJ van der Walt, Property in the Margins (Portland: Hart Publishing, 2009) at 239 [van der Walt, Property in the Margins].

[95]    357 US 301 at 307 (1958).

[96]    See generally Nicholas Blomley, “Precarious Territory: Property Law, Housing, and the Socio-Spatial Order” (2020) 52:1 Antipode 36 [Blomley, “Precarious Territory”]; Helen Carr, Brendan Edgeworth & Caroline Hunter, eds, Law and the Precarious Home: Socio Legal Perspectives on the Home in Insecure Times (Oxford, UK: Hart Publishing, 2018).

[97]    See Blomley, “Precarious Territory”, supra note 96.

[98]    See e.g. Mari J Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations” (1987) 22:2 Harv CR-CLL Rev 323 at 364; Lorna Fox O’Mahony, “Property Outsiders and the Hidden Politics of Doctrinalism” (2014) 67:1 Current Leg Probs 409; Eduardo Moisés Peñalver & Sonia K Katyal, “Property Outlaws” (2007) 155:5 U Pa L Rev 1095; Marc L Roark, “Under-Propertied Persons” (2017) 27:1 Cornell JL & Pub Pol’y 1; van der Walt, Property in the Margins, supra note 94.

[99]    Blomley, “Precarious Territory”, supra note 96 at 40.

[100] See ibid at 50.

[101] Ibid, citing Bruce Ziff, Principles of Property Law (Toronto: Thomson Reuters, 2018).

[102] Ibid at 50.

[103] See e.g. R v Grant, [1992] 14 BCAC 94, 73 CCC (3d) 315, Southin JA, dissenting.

[104] See Homelessness Services Association of BC, supra note 12. This article does not consider the gendered aspects of homelessness counts. See e.g. Kaitlin Schwan et al, The Pan-Canadian Women’s Housing & Homelessness Survey (Toronto: Canadian Observatory on Homelessness, 2021) (noting that women experiencing homelessness are largely invisible for various reasons, including that studies of homelessness often fail to count women fleeing gender-based violence).

[105] Edwards, supra note 67 at para 47.

[106] See ibid at paras 58–69.

[107] See ibid at paras 23–27.

[108] See Homelessness Services Association of BC, supra note 12.

[109] Esther Sullivan, “Dignity Takings and ‘Trailer Trash’: The Case of Mobile Home Park Mass Evictions” (2017) 92:3 Chicago-Kent L Rev 937.

[110] See Pivot Legal Society, “Project Inclusion: Confronting Anti-Homeless and Anti-Substance User Stigma in British Columbia” (2018) at 28–29, online (pdf): Pivot Legal Society <www.pivotlegal.org> [perma.cc/W977-SHKQ].

[111] See Jeannette Waegemakers Schiff & Alina Turner, “Rural Alberta Homelessness” (2014) at 27, online (pdf): Government of Alberta <www.humanservices.alberta.ca> [perma.cc/U9BD-DW7W].

[112] See James Fontana & David Keeshan, The Law of Search and Seizure in Canada, 9th ed (Toronto: LexisNexis, 2015) at 998–1020.

[113] 2010 SCC 24 [Nolet].

[114] See ibid at paras 5–13, 31.

[115] See Feeney, supra note 79.

[116] See ibid; R v Feeney, [1995] BCWLD 562, 54 BCAC 228 (BCCA) (neither the SCC nor the BCCA decisions are clear on whether the trailer was also rented, or if it was only the property where the trailer was located that was rented).

[117] See e.g. Picard, supra note 1 at para 24; Jochelson & Ireland, supra note 61 at 103, n 3.

[118] 2003 SCC 30.

[119] See ibid at para 24.

[120] See ibid at paras 21, 24 (a reasonable expectation of privacy was found in the locker in the absence of a notice saying that there was a right to inspect the contents of the locker).

[121] See Stuart, supra note 71 at 301. See e.g. Residential Tenancy Act, SBC 2002, c 78, s 29 (citing conditions in which a landlord can enter a rental unit).

[122] See e.g. Carr, Edgeworth & Hunter, supra note 96.

[123] [1983] NSJ No 398, 9 WCB 450 [Howe].

[124] 2005 NBPC 37 at para 22.

[125] [1992] BCJ No 1400 at para 2, 14 BCAC 94 [Grant].

[126] See ibid at paras 14–15.

[127] See R v Grant, [1993] 3 SCR 223 at 261, 84 CCC (3d) 173.

[128] See Picard, supra note 1.

[129] See Nolet, supra note 113 at para 31.

[130] 2013 SKCA 116.

[131] See ibid at paras 99–102.

[132] 2017 BCCA 453 at para 44 [Clarke].

[133] Ibid at para 9.

[134] See ibid at paras 25–29, 70.

[135] See Edwards, supra note 67.

[136] [1997] OJ No 905, 113 CCC (3d) 519 [Laurin].

[137] See ibid.

[138] 2018 ONSC 4298 at paras 33–36.

[139] 2019 ONSC 5567 at para 55.

[140] [1992] BCJ No 2558, 1992 CanLII 1008 (BCCA) at para 87.

[141] 2008 BCCA 342.

[142] See ibid at paras 12, 48.

[143] See also R v Vi, 2008 BCCA 481 (the accused was the owner of the property but was not an occupant and lived elsewhere. While this reduced his expectation of privacy, section 8 was still engaged as the accused was an owner of the property).

[144] See Blomley, “Precarious Territory”, supra note 96.

[145] See Warren & Brandeis, supra note 48.

[146] See Picard, supra note 1 at para 29.

[147] See Feeney, supra note 79.

[148] See e.g. Sig Langegger & Stephen Koester, “Moving On, Finding Shelter: The Spatiotemporal Camp” (2017) 32:4 Intl Sociology 454 (reporting research on quality of life laws in Denver, Colorado).

[149] See Terry Skolnik, “How and Why Homeless People Are Regulated Differently” (2018) 43:2 Queen’s LJ 297 at 313–19.

[150] See e.g. Joe Hermer & Janet Mosher, eds, Disorderly People: Law and the Politics of Exclusion in Ontario (Halifax: Fernwood Publishing, 2002); Bill O’Grady, Stephen Gaetz & Kristy Buccieri, “Tickets … and More Tickets: A Case Study of the Enforcement of the Ontario Safe Streets Act” (2013) 39:4 Can Pub Pol’y 541; Safe Streets Act, supra note 38.

[151] See e.g. Damian Collins & Nicholas Blomley, “Private Needs and Public Space: Politics, Poverty and Anti- Panhandling By-Laws in Canadian Cities” in Law Commission of Canada, ed, New Perspectives on the Public–Private Divide (Vancouver: UBC Press, 2003) 40; Marie-Eve Sylvestre, “Disorder and Public Spaces in Montreal: Repression (And Resistance) Through Law, Politics, and Police Discretion” (2010) 31:6 Urban Geography 803; Catherine T Chesnay, Céline Bellot & Marie-Eve Sylvestre, “Taming Disorderly People One Ticket at a Time: The Penalization of Homelessness in Ontario and British Columbia” (2013) 55:1 Can J Crim & Corr 161; Marie-Eve Sylvestre et al, “Le droit est aussi une question de visibilité: l’occupation des espaces publics et les parcours judiciaires des personnes itinérantes à Montréal et à Ottawa” (2011) 26:3 CJLS 531.

[152] Langegger & Koester, supra note 148 at 455.

[153] Ibid at 454.

[154] See e.g. Pivot Legal Society, supra note 110.

[155] See e.g. Alexandra B Collins et al, “Policing Space in the Overdose Crisis: A Rapid Ethnographic Study of the Impact of Law Enforcement Practices on the Effectiveness of Overdose Prevention Sites” (2019) 73 Intl J Drug Policy 199; Ryan McNeil et al, “Area Restrictions, Risk, Harm, and Health Care Access Among People Who Use Drugs in Vancouver, Canada: A Spatially Oriented Qualitative Study” (2015) 35 Health & Place 70.

[156] See Christopher Essert, “Property and Homelessness” (2016) 44:4 Philosophy & Public Affairs 266 at 276.

[157] See City of Vancouver, “Homelessness & Supportive Housing Strategy” (7 October 2020) at 28, online (pdf): City of Vancouver <www.vancouver.ca> [perma.cc/4E7W-9GRD].

[158] See Albert Currie, “Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework” (2015) at 7–9, online (pdf): Department of Justice, Research and Statistics Division <www.justice.gc.ca> [perma.cc/AFL5-SS3Q]. See also Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9:1 Law & Soc’y Rev 95.

[159] See Stephen Przybylinski, Liberalizing Democracy: Property, Citizenship, and the Constrained Promise of Self-Governing Houseless Communities (PhD Dissertation, Syracuse University, 2020) [unpublished] at 140–43.

[160] Jessie Speer, “‘It’s not like your home’: Homeless Encampments, Housing Projects, and the Struggle over Domestic Space” (2017) 49:2 Antipode 517 at 517.

[161] See ibid.

[162] Ibid at 518.

[163] See Tony Sparks, “Broke Not Broken: Rights, Privacy, and Homelessness in Seattle” (2010) 31:6 Urban Geography 842.

[164] Andrea Brighenti, “Visibility: A Category for the Social Sciences” (2007) 55:3 Current Sociology 323 at 336. See also Sylvestre et al, supra note 151.

[165] See Patrick, supra note 82.

[166] See Noah J Durst & Jake Wegmann, “Informal Housing in the United States” (2017) 41:2 Intl J Urban & Regional Research 282 at 284.

[167] See Ananya Roy, “Why India Cannot Plan Its Cities: Informality, Insurgence, and the Idiom of Urbanization” (2009) 8:1 Planning Theory 76 at 83.

[168] See Gautam Bhan, In the Public’s Interest: Evictions, Citizenship and Inequality in Contemporary Delhi (Athens, Ga: University of Georgia Press, 2016) at 16; Liela Groenewald et al, “Breaking Down the Binary: Meanings of Informal Settlement in Southern African Cities” in Simon Bekker & Laurent Fourchard, eds, Governing Cities in Africa: Politics and Policies (Cape Town: HSRC Press, 2013) 93; Ann Varley, “Postcolonialising Informality?” (2013) 31:1 Environment & Planning D: Society & Space 4 at 5.

[169] See Andrew, “Why Does the City of Vancouver Shut Down Brand New Basement Suites and Evict Renters?” (9 April 2021), online (blog): City Hall Watch <www.
cityhallwatch.wordpress.com> [perma.cc/M9QJ-6MLV].

[170] See Durst & Wegmann, supra note 166 at 286.

[171] See Mona Lynch, “Mass Incarceration, Legal Change, and Locale: Understanding and Remediating American Penal Overindulgence” (2011) 10:3 Criminology & Public Policy 673 at 674. See also Mariana Valverde, “Jurisdiction and Scale: Legal ‘Technicalities’ as Resources for Theory” (2009) 18:2 Soc & Leg Stud 139.

[172] See Sparks, supra note 163 at 847.

[173] See Ananya Roy, “Paradigms of Propertied Citizenship: Transnational Techniques of Analysis” (2003) 38:4 Urban Affairs Rev 463 [Roy, “Paradigms”].

[174] See Brighenti, supra note 164.

[175] See Squires, supra note 49.

[176] See TH Marshall and Tom Bottomore, Citizenship and Social Class (London, UK: Pluto Press, 1992).

[177] See Thomas Janoski & Brian Gran, “Political Citizenship: Foundation of Rights” in Engin F Isin & Bryan S Turner, eds, Handbook of Citizenship Studies (London, UK: Sage Publications, 2002) 13 at 17.

[178] See SA Marston, “Who Are ‘the People’?: Gender, Citizenship, and the Making of the American Nation” (1990) 8:4 Environment & Planning D: Society & Space 449 at 452.

[179] See Jeremy Waldron, “A Right-Based Critique of Constitutional Rights” (1993) 13:1 Oxford J Leg Stud 18 at 25; Don Mitchell, “The Annihilation of Space by Law: The Roots and Implications of Anti‐Homeless Laws in the United States” (1997) 29:3 Antipode 303.

[180] Roy, “Paradigms”, supra note 173 at 475.

[181] See ibid.

[182] See ibid (arguing that it is ultimately houseless persons’ lack of access to private property and its privileges that justifies the usurpations of privacy represented by the “spatial techniques of fortification, eviction, and surveillance that are used to manage the homeless” at 475). See also Sparks, supra note 163 at 848.

[183] See Picard, supra note 1 at paras 37, 40.

[184] See Sparks, supra note 163.

[185] Warren & Brandeis, supra note 48 at 197.

[186] Nicholas Blomley, “The Borrowed View: Privacy, Propriety, and the Entanglements of Property” (2005) 30:4 Law & Soc Inquiry 617 at 618.

[187] Roy, “Paradigms”, supra note 173 at 475.

[188] [1997] 3 SCR 341, 151 DLR (4th) 443.

[189] Ibid at para 50.

[190] Ibid.

[191] Ibid at para 61.

[192] Ibid at para 65.

[193] See e.g. Jochelson & Ireland, supra note 61.

[194] See generally Pivot Legal Society, supra note 110; Langegger & Koester, supra note 148; A Collins et al, supra note 155.