B.C. judge finds no foul in VPD's warrantless search of homeless man's tent

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      In the eyes of the law, when is a home not a home?

      When it’s pitched on city property, a B.C. provincial court judge has ruled.

      The case could have significant implications for the hundreds of people who reside in tents around Metro Vancouver and other B.C. cities.

      It concerns Louis Picard, a resident of Vancouver’s Downtown Eastside who for the last two years has lived in a tent located on the 300 block of Alexander Street and at various other locations in the nearby area.

      According to a written decision by B.C. regional administrative judge Wilson Lee, Vancouver Police Department officers monitored Picard’s tent for two days. During that time, they witnessed numerous people appear to purchase drugs there. Officers subsequently searched the tent without first obtaining a warrant. They found fentanyl, methamphetamine, and cannabis.

      The judge was asked to rule on “whether there was a valid search of Mr. Picard’s tent and if not, whether the evidence found in the tent should be excluded”.

      The decision includes many factors relevant to the question of whether a tent should be considered a home and if a tent that serves as a home should come with certain legal protections that a home in Canada entails. For example, Picard claims he sleeps in the tent with his partner every night and dresses and shaves in the tent every morning.

      “Mr. Picard considers the tent to be his home,” the judge writes. “He has lived in it for the past two years. He sleeps and eats in the tent. His belongings are in the tent or in the storage bin or on the rack that are beside the tent.”

      But such factors were not the only one’s relevant to the case.

      “The question before me is not whether all tents can be considered a home, but whether Mr. Picard’s tent was a home,” the judge writes.

      “Mr. Picard was asked if he used the tent as a base to sell drugs,” the decision continues. “I allowed this question to be asked because if the tent was being used for a commercial enterprise the expectation of privacy may be lower….Mr. Picard denied using the tent to sell drugs. He said that people may reach into the tent for a light or a ‘cooker’ for use with heroin, but that these were items given away by Mr. Picard’s girlfriend.”

      Picard maintains that as the tent serves as his home, he has a right to expect privacy and protection from searches without a warrant.

      “In my view, 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,” the judge writes.

      “In review of the cases where the courts found that a person’s residence should not be searched without a warrant save for exceptional circumstances, there was a legal right for the occupant to reside on the property upon which lies the residence,” he explains.

      “That is the distinguishing factor here. 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.

      “Accordingly,” the judge concludes, “I find that Mr. Picard’s tent was not a ‘home’ within the meaning of that word as discussed in R. v. Feeney. In other words, I find that the Crown need not show exceptional circumstances to justify a search of the tent.”