Protecting privacy in the ‘home’: A Legal Geography of Canadian constitutional law across housing contexts

Authors: Sarah Ferencz*, Peter A. Allard School of Law, University of British Columbia
Topics: Legal Geography
Keywords: property law, human rights, housing, home, poverty
Session Type: Virtual Paper
Day: 4/11/2021
Start / End Time: 9:35 AM / 10:50 AM
Room: Virtual 37
Presentation File: No File Uploaded

Section 8 of the Canadian Charter of Rights and Freedoms guarantees that “everyone has the right to be secure against unreasonable search or seizure.” The Supreme Court of Canada has affirmed that this right protects ‘people, not places’, and that privacy expectations are highest in the home. According to the law, state intrusions into the privacy of the home trigger significant protection. The meaning of ‘home’ has no single meaning, both within and outside of property law (Carr, Edgeworth, Hunter). In this paper, I employ a legal geography lens of Canadian case law where courts have evaluated alleged section 8 breaches, comparing cases across housing contexts and how courts have defined a 'home'. Legal Geography recognizes that the “where of law matters” (Braverman, Blomley, Delaney, & Kedar, 2014). With this lens, I analyze how courts evaluate privacy in vehicles and trailers, couch surfing, hotel rooms, and shelters. My analysis demonstrates that Canadian courts offer greater protection in accordance with the strength of one’s property interest, meaning those who own property in fee simple, and the least protection for people who are precariously housed in public spaces, such as those forced to occupy tents located on municipal land. I argue that this uneven application of ‘home’ in section 8 cases undermines Charter objectives and ultimately protects only some people in some places.

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