Are Tents a \u27Home\u27? Extending Section 8 Privacy Rights for the Precariously Housed

Abstract

The home, for most of us, is an obvious zone to assert privacy and property rights. However, this is not the case for those whose control of residential space is precarious. Our paper focuses on privacy rights under the Canadian constitution for those living in tents and, specifically, the judicial rejection of a tent as a home garnering legal protection under the Charter of Rights and Freedoms. We focus on a 2018 case from British Columbia, R. v. Picard, the only judicial decision that we could locate that has explored this question. In holding that the tent is not a home, Picard draws from the venerable castle doctrine, the deeply rooted legal principle that cements enhanced legal protection for the home. Drawing from legal geography, we argue that the castle doctrine is grounded in a particular legal-spatial imaginary, such that the home is represented in its ideal form as a privately owned detached dwelling. The connection between privacy rights and the home, as reflected in jurisprudence, is grounded in property rights, which formally excluded all but white men in colonial North America and continues to be linked to systemic inequality. As we illustrate in this paper, the exclusion of those in tents and other forms of precarious housing, including those dwelling in cars, from exercising enhanced privacy rights afforded to the home exacerbates the inequalities of the most vulnerable, such that the legal protections of “home” are not available to those living in tents. We conclude that the basis for the denial of tents as homes is legally flawed and should be reconsidered in future jurisprudence