Abstract
This paper examines whether the Supreme Court of Canada’s decision in R. v. Stairs to alter the baseline police power to conduct searches incident to lawful arrest adequately addresses issues of intersectionality and spatiality. The paper’s principal focus is on race and class, which is analyzed through the lens of critical theories around race and space/spatialization, drawing on Black geographies and Critical Race Theory (“CRT”). It will also consider critical legal theories that urge us to conduct a distributional analysis of the differential impacts of legal standards. Importantly, the paper considers how courts do and should conceptualize privacy and domesticity for Black individuals and families. Specifically, it analyzes whether the Majority’s emphasis on police and public safety in conducting warrantless home searches will disproportionately affect Black households and their residents, particularly those located in so-called less desirable or high-risk neighbourhoods. Indeed, like their bodies, Black spaces (e.g., houses, communities) are read as more risk-prone and are approached cautiously and, at times, with pre-emptive violence. Some scholars have contended that the use of pre-emptive state violence is based on racial logic. An instance of this occurs when narratives that associate Black individuals and the spaces they occupy as dangerous influence the way police offıcers perceive public and offıcer safety. Indeed, exaggerated risk perceptions have led to excessive and deadly use of force, dehumanizing and dignity-affronting policing practices.
Citation Information
Jones, Danardo S..
"Exploring the Intersectional and Spatial Implications of the Police Power to Search Dwellings Incident to Lawful Arrest: A Comment on R. v. Stairs."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1452
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/10
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
References
1 In 2016, 21 per cent of the Black population aged 25-59 lived in a low-income situation, compared with 12 per cent of their counterparts in the rest of the population. See Statistics Canada, "Canada's Black population: Education, labour and resilience" (Ottawa: Statistics Canada, 2020), online: https://www150.statcan.gc.ca/n1/pub/89-657-x/89-657-x2020002-eng.htm. Black Canadians also experienced housing differently than their non-Black counterparts, often living in subsidized housing. See also Jeff Randle, Zheren Hu & Zachary Thurston, "Housing Experiences in Canada: Black People in 2018" (Ottawa: Statistics Canada, 2021), online: https://www150.statcan.gc.ca/n1/pub/46-28-0001/2021001/article/00006-eng.htm.
2 See Adam Cotter, "Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada" (Ottawa: Canadian Centre for Justice and Community Safety Statistics, 2022), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.htm; see also "Overrepresentation of Black People in the Canadian Criminal Justice System" (Ottawa: Department of Justice, 2022), online: https://www.justice.gc.ca/eng/rp-pr/jr/obpccjs-spnsjpc/index.html.
3 R. v. Le, [2019] S.C.J. No. 34 at para. 95, 2019 SCC 34 (S.C.C.) [hereinafter "Le"]. https://doi.org/10.18356/b43659f7-fr
4 Le at para. 59 (emphasis added).
5 Le at para. 60 (emphasis added).
6 See Danardo S. Jones, "Lifting the Judicial Embargo on Race-Based Charter Litigation: A Comment on R. v. Le" (2019) 67 C.L.Q. 42.
7 R. v. Stairs, [2022] S.C.J. No. 11, 2022 SCC 11 (S.C.C.) [hereinafter "Stairs"].
8 Stairs at para. 1.
9 See Benjamin Berger, "Race and Erasure in R v Mann" (2004) 21 C.R. (6th) 58; James Stribopoulos, "Unchecked Power: The Constitutional Regulation of Arrest Reconsidered" (2003) 48 McGill L.J. 225 at 249-251; James Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41:2 Alta. L. Rev. 335 at 341-344 https://doi.org/10.29173/alr1328; Casey Hill, "Investigative Detention: A Search/Seizure by Any Other Name?" (2008) 40 S.C.L.R. (2d) 179 at 188-193 https://doi.org/10.60082/2563-8505.1114; Don Stuart, "Charter Standards for Investigative Powers: Have the Courts Got the Balance Right?" (2008) 40 S.C.L.R. (2d) 3 at 27-33 https://doi.org/10.60082/2563-8505.1109; Terry Skolnik, "Racial Profiling and the Perils of Ancillary Police Powers" (2021) 99:2 Can. Bar Rev. 429 at 460. https://doi.org/10.2139/ssrn.3721754
10 Jane Bryan, "Reading Beyond the Ratio: Searching for the Subtext in the 'enforced Caesarean' Cases" in Daniela Carpi, ed., Bioethics and Biolaw Through Literature (Berlin: De Gruyter, Inc., 2011) at 115. For a good example of subtextual analysis of criminal cases, see also Amar Khoday, "Black Voices Matter Too: Counter-Narrating Smithers v The Queen" (2021) 58:3 Osgoode Hall L.J. 567. https://doi.org/10.1515/9783110252859.115
11 Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 3d ed. (Toronto: LexisNexis Canada, 2022) at 429-430. In Le at para. 165, the majority held that "[r]equiring the police to comply with the Charter in all neighbourhoods and to respect the rights of all people upholds the rule of law, promotes public confidence in the police, and provides safer communities. The police . . . better than anyone, understand that with extensive powers come great responsibilities."
12 Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 3d ed. (Toronto: LexisNexis Canada, 2022) at 444-445.
13 Elsa Kaka, "The Supreme Court of Canada's Justification of Charter Breaches and its Effect on Black and Indigenous Communities" (2020) 43:5 Man. L.J. 117 at 137. https://doi.org/10.29173/mlj1225
14 Elsa Kaka, "The Supreme Court of Canada's Justification of Charter Breaches and its Effect on Black and Indigenous Communities" (2020) 43:5 Man. L.J. 117 at 137: Discourses of risk prevention cannot be decoupled from race and space. Camisha Sibblis, drawing on the work of Sherene Razack, asserts that "proactive" expulsion programs in Ontario public school systems are predicated on such risk/race logics. I would argue that such analyses can assist legal scholars and lawyers in deconstructing some intersectional implications in the subtext of legal discourses on risk. See Camisha Sibblis, "Expulsion Programs as Colonizing Spaces of Exception" (2014) 21:1 Race, Gender & Class 64 at 75, citing Sherene H. Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008). Professor Sibblis relies on Sherene Razack's idea that risk is read on the Body and argues that "[d]ominant ideology about the black body belies how behaviours are interpreted and used to gauge propensity for harmful behaviours and predict future harm, particularly because black bodies are believed to be innately savage and violent."
15 James Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41:2 Alta. L. Rev. 335 at 343. https://doi.org/10.29173/alr1328
16 Elsa Kaka, "The Supreme Court of Canada's Justification of Charter Breaches and its Effect on Black and Indigenous Communities" (2020) 43:5 Man. L.J. 117 at 132. https://doi.org/10.29173/mlj1225
17 David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6-14 at 12, DOI: 10.1111/0033-0124.00309. https://doi.org/10.1111/0033-0124.00309
18 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1265.
19 See April Few, "Integrating Black Consciousness and the Critical Race Feminism Into Family Studies Research" (2007) 28:4 J. of Family Issues 452. https://doi.org/10.1177/0192513X06297330
20 In 2016, 21 per cent of the Black population aged 25-59 lived in a low-income situation, compared with 12 per cent of their counterparts in the rest of the population. See Statistics Canada, "Canada's Black population: Education, labour and resilience" (Ottawa: Statistics Canada, 2020), online: https://www150.statcan.gc.ca/n1/pub/89-657-x/89-657-x2020002-eng.htm. Black Canadians also experienced housing differently than their non-Black counterparts, often living in subsidized housing. See also Jeff Randle, Zheren Hu & Zachary Thurston, "Housing Experiences in Canada: Black People in 2018" (Ottawa: Statistics Canada, 2021), online: https://www150.statcan.gc.ca/n1/pub/46-28-0001/2021001/article/00006-eng.htm. See Adam Cotter, "Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada" (Ottawa: Canadian Centre for Justice and Community Safety Statistics, 2022), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.htm; see also "Overrepresentation of Black People in the Canadian Criminal Justice System" (Ottawa: Department of Justice, 2022), online: https://www.justice.gc.ca/eng/rp-pr/jr/obpccjs-spnsjpc/index.html.
21 Canadian Mortgage and Housing Corporation, "Canada supports affordable housing for Black Canadians" (February 1, 2022), online: https://www.cmhc-schl.gc.ca/en/medianewsroom/news-releases/2022/canada-supports-affordable-housing-black-canadians; Statistics Canada, "Housing Conditions among racialized groups: a brief overview" (January 23, 2023), online: https://www150.statcan.gc.ca/n1/daily-quotidien/230123/dq230123b-eng.htm.
22 Statistics Canada, "Housing Conditions among racialized groups: a brief overview"(January 23, 2023), online: https://www150.statcan.gc.ca/n1/daily-quotidien/230123/dq230123b-eng.htm.
23 See Edward W. Soja, Seeking Spatial Justice (Minneapolis: University of Minnesota Press, 2010).
24 Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933 at 1933. https://doi.org/10.1080/01419870.2011.559262
25 Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933 at 1933. https://doi.org/10.1080/01419870.2011.559262
26 David M. Tanovich, "The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System" (2008) 40 S.C.L.R. (2d) 655 at 679. https://doi.org/10.60082/2563-8505.1128
27 See, generally, Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933 https://doi.org/10.1080/01419870.2011.559262; see also David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6-14. I agree with Delaney that "Race in all of its complexity and ambiguity as ideology and identity is what it is and does what it does precisely because of how it is given spatial expression" (at 7). https://doi.org/10.1111/0033-0124.00309
28 David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6-14 at 12 https://doi.org/10.1111/0033-0124.00309; Douglas Allen, Mary Lawhon & Joseph Pierce, "Placing race: On the resonance of place with black geographies" (2019) 43:6 Progress in Human Geography 1001 at 1007. https://doi.org/10.1177/0309132518803775
29 George Lipsitz, "The Racialization of Space and the Spatialization of Race: Theorizing the Hidden Architecture of Landscape" (2007) 26:1 Landscape Journal 10 at 13. See also George Lipsitz, How Racism Takes Place (Philadelphia: Temple University Press, 2011) at 7. https://doi.org/10.3368/lj.26.1.10
30 See, generally, Robin DiAngelo, "White Fragility" (2011) 3:3 Intl. J. Critical Pedagogy 54-70; Ruth Wilson Gilmore, Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (Berkeley: University of California Press, 2006) at 28. Darkscapes become, in the words of Ruth Gilmore, spaces where Blacks "face pre-mature death".
31 Lise Nelson, "Bodies (and Spaces) do Matter: The limits of performativity, Gender, Place and Culture" (1999) 6:4 A Journal of Feminist Geography 331 https://doi.org/10.1080/09663699924926; see Jenna Wortham, "Racism's psychological toll" The New York Times (June 24, 2015), online: https://www.nytimes.com/2015/06/24/magazine/racisms-psychological-toll.html.
32 R. v. Brown, [2003] O.J. No. 1251 (Ont. C.A.); R. v. Dudhi, [2019] O.J. No. 4333, 2019 ONCA 665 (Ont. C.A.).
33 Nassiah v. Peel Regional Police Services Board, [2007] O.H.R.T.D. No. 14, 2007 HRTO 14 (Ont. H.R.T.).
34 Elmardy v. Toronto Police Services Board, [2017] O.J. No. 1640, 2017 ONSC 2074 (Ont. S.C.J.); R. v. Bonds, [2010] O.J. No. 5034, 2010 ONCJ 561 (Ont. C.J.).
35 R. v. Thompson, [2020] O.J. No. 1757, 2020 ONCA 264 (Ont. C.A.).
36 Wickham v. Hong Shing Chinese Restaurant, [2018] O.H.R.T.D. No. 396, 2018 HRTO 500 (Ont. H.R.T.).
37 Peel Law Assn. v. Pieters, [2013] O.J. No. 2695, 2013 ONCA 396 (Ont. C.A.).
38 R. v. Le, [2019] S.C.J. No. 34 at para. 95, 2019 SCC 34 (S.C.C.). https://doi.org/10.1016/j.yebeh.2019.03.036
39 George Lipsitz, "The Racialization of Space and the Spatialization of Race: Theorizing the Hidden Architecture of Landscape" (2007) 26:1 Landscape Journal 10 at 16-18. https://doi.org/10.3368/lj.26.1.10
40 Douglas Allen, Mary Lawhon & Joseph Pierce, "Placing race: On the resonance of place with black geographies" (2019) 43:6 Progress in Human Geography 1001 at 1002. The authors explain that "Black geographies seek to highlight black agency in the production of space and black geographic experiences in the articulation of black geographic visions of society" at 1002. https://doi.org/10.1177/0309132518803775
41 Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933 at 1933. https://doi.org/10.1080/01419870.2011.559262
42 Ingrid Waldron, "Mapping Racial Geographies of Violence on the Colonial Landscape" (2022) 38 Windsor Y. B. Access Just., online: https://wyaj.uwindsor.ca/index.php/wyaj/article/view/7388. See also Ingrid Waldron, "Re-thinking waste: mapping racial geographies of violence on the colonial landscape" (2018) 4:1 Environmental Sociology 36, DOI: 10.1080/23251042.2018.1429178. https://doi.org/10.1080/23251042.2018.1429178
43 David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6-14 at 7. Race and class have been determinants of spatial practices since slavery. Indeed, since slavery, the imperative to control Black bodies has remained virtually unaltered. See Robyn Maynard, Policing Black Lives State Violence in Canada from Slavery to the Present (Nova Scotia: Fernwood Publishing, 2017).
44 Jodi Sheldon Rios, Black Lives and Spatial Matters: Policing Blackness and Practicing Freedom in Suburban St. Louis (New York: Cornell University Press, 2020) at 18.
45 Adam Cotter, "Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada" (Ottawa: Canadian Centre for Justice and Community Safety Statistics, 2022), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.htm. Black and Indigenous individuals who reported a problem with the criminal justice system were also asked if the incident that caused the dispute involved violence in any way. About one-third (35 per cent) of those who had a dispute with police or the justice system in the past three years indicated that violence was involved.
46 Sunghoon Roh & Matthew Robinson, "A Geographic Approach to Racial Profiling: The Microanalysis and Macroanalysis of Racial Disparity in Traffic Stops" (2009) 12:2 Police Q. 137 at 138. https://doi.org/10.1177/1098611109332422
47 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter "Charter"].
48 David M. Tanovich, "The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System" (2008) 40 S.C.L.R. (2d) 655 at 679. https://doi.org/10.60082/2563-8505.1128
49 Le at para. 95.
50 R. v. Grant, [2009] S.C.J. No. 32, 2009 SCC 32 (S.C.C.) https://doi.org/10.3366/E026483340900039X; R. v. Golden, [2001] S.C.J. No. 81, 2001 SCC 83 (S.C.C.). https://doi.org/10.1002/ss.13
51 See Danardo S. Jones, "Lifting the Judicial Embargo on Race-Based Charter Litigation: A Comment on R. v. Le" (2019) 67 C.L.Q. 42. Incorporating an intersectional approach to our critical analyses of race avoids the essentialist trap: all Black people are similar in their oppression and desire for liberation. It invites us to deconstruct identities, unravel stereotypical and insidious tropes to enable an exploration of identity free of pernicious suppositions. In this vein, it rejects essentialist notions of Blackness that seek to reduce or minimize the Black experience as a universal, unitary phenomenon. See Angela P. Harris, "Race and Essentialism in Feminist Legal Theory" (1990) 42:3 Stanford L. Rev. 581; Kimberlé Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination doctrine, Feminist Theory and Antiracist Politics" (1989) 1 U. of Chicago Leg. Forum 139.
52 Kimberlé Crenshaw, "Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color" (1991) 43:6 Stanford L. Rev. 1241-1299 https://doi.org/10.2307/1229039; Angela P. Harris, "Race and Essentialism in Feminist Legal Theory" (1990) 42:3 Stanford L. Rev. 581 https://doi.org/10.2307/1228886; Kimberlé Crenshaw, "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination doctrine, Feminist Theory and Antiracist Politics" (1989) 1 U. of Chicago Leg. Forum 139.
53 Richard Delgado & Jean Stefancic, Critical Race Theory: An Introduction, 3d ed. (New York: New York University Press, 2017) at 4; Richard Delgado, "Liberal McCarthyism and the Origins of Critical Race Theory" in Richard Delgado & Jean Stefancic, eds., Critical Race Theory: The Cutting Edge, 3d ed. (Philadelphia: Temple University Press, 2013) at 38; see Kimberlé Crenshaw et al., eds., Critical Race Theory: The Key Writings that Formed the Movement (New York: New Press, 1995).
54 Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933 at 1939. https://doi.org/10.1080/01419870.2011.559262
55 Cloutier v. Langlois, [1990] S.C.J. No. 10, [1990] 1 S.C.R. 158 (S.C.C.).
56 [2014] S.C.J. No. 3, 2014 SCC 3 (S.C.C.).
57 R. v. MacDonald, [2014] S.C.J. No. 3 at para. 46, 2014 SCC 3 (S.C.C.).
58 Cloutier v. Langlois, [1990] S.C.J. No. 10 at para. 58, [1990] 1 S.C.R. 158 (S.C.C.); R. v. Fearon, [2014] S.C.J. No. 77 at para. 75, 2014 SCC 77 (S.C.C.).
59 Stairs at para. 82.
60 Stairs at para. 83.
61 Stairs at para. 135.
62 Stairs at para. 65.
63 Stairs at para. 78.
64 Stairs at para. 74.
65 Stairs at para. 134.
66 Stairs at para. 145.
67 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1293.
68 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1270.
69 R. v. Tessling, [2004] S.C.J. No. 63 at para. 16, [2004] 3 S.C.R. 432 (S.C.C.). According to Tessling, privacy protection under s. 8 is for people, not places.
70 David M. Tanovich, "E-Racing Racial Profiling" (2004) 41:4 Alta. L. Rev. 905 at 913-916. https://doi.org/10.29173/alr1313
71 David M. Tanovich, "E-Racing Racial Profiling" (2004) 41:4 Alta. L. Rev. 905 at 913-916. See also Scot Wortley & Akwasi Owusu-Bempah, "The usual suspects: police stop and search practices in Canada" (2011) 21:4 Policing and Society 395 at 402. https://doi.org/10.1080/10439463.2011.610198
72 See Toni Morrison, Playing in the dark: Whiteness and the literary imagination (Cambridge: Harvard University Press, 1992). See also David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6 https://doi.org/10.1111/0033-0124.00309; see also Lise Nelson, "Bodies (and Spaces) do Matter: The limits of performativity, Gender, Place and Culture" (1999) 6:4 A Journal of Feminist Geography 331. https://doi.org/10.1080/09663699924926
73 Some scholars argue that the precursor to modern policing in the American context were so-called Slave patrols that "had full power and authority to enter any plantation and break open Negro houses or other places when slaves were suspected of keeping arms; to punish runaways or slaves found outside their plantations without a pass; to whip any slave who should affront or abuse them in the execution of their duties; and to apprehend and take any slave suspected of stealing or other criminal offense, and bring him to the nearest magistrate." See Hubert Williams & Patrick V. Murphy, "The Evolving Strategy of Police: A Minority View" (1990) 13 U.S. Dept. of Justice, Office of Justice Programs, National Institute of Justice at 4. See also Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1992). However, if there is no escape - no outside zone where racial profiling is non-existent - do Blacks need to "get real about race" and accept the permanence of racism in society? The late Derrick Bell has urged Black Americans to accept racial subordination and the permanence of racism. Acceptance, he argued, of this racial realism is key to formulating strategies of resistance.
74 See Giorgio Agamben, "The State of Exception as a Paradigm for Government" in State of Exception (Chicago: University of Chicago Press, 2005) 1 at 1. In international public law scholarship, most notably works on the war on terror, in times of emergency, the sovereign is justified in exempting itself from the established legal order. The state of exception doctrine "can be best described as a move from defence to prevention or as a move from deterrence to risk management".
75 Low-income Canadians who live in social housing, single resident occupancy ("SRO") hotels and supportive housing models, many of whom are racialized or Indigenous, are often subjected to restrictive policies and heightened surveillance that people living in market rentals or in their own properties are not. Examples include restrictions on guest access, surveillance from support workers or security guards, drug or alcohol abstinence requirements, no-pet policies and limitations on possessions. Failure to comply with given policies can lead to eviction and homelessness. See PHS Community Services Society v. Swait, [2018] B.C.J. No. 958, 2018 BCSC 824 (B.C.S.C.) for a challenge to a non-profit housing society policy restricting guest access, which found a prohibition on nighttime guests to be unreasonable.
76 See Brooke Neely & Michelle Samura, "Social geographies of race: connecting race and space" (2011) 34:11 Ethnic & Racial Studies 1933. See also David Delaney, "The Space That Race Makes" (2002) 54:1 The Professional Geographer 6 at 7 - I agree with Delaney that "[r]ace in all of its complexity and ambiguity. As ideology and identity is what it is and does what it does precisely because of how it is given spatial expression." https://doi.org/10.1080/01419870.2011.559262
77 R. v. Tessling, [2004] S.C.J. No. 63 at para. 22, [2004] 3 S.C.R. 432 (S.C.C.).
78 R. v. Plant, [1993] S.C.J. No. 97, [1993] 3 S.C.R. 281 (S.C.C.); R. v. Godoy, [1998] S.C.J. No. 85, [1999] 1 S.C.R. 311 (S.C.C.); R. v. Edwards, [1996] S.C.J. No. 11, [1996] 1 S.C.R. 128 (S.C.C.).
79 Canada (Director of Investigation & Research, Combines Investigation Act) v. Southam Inc., [1984] S.C.J. No. 36, [1984] 2 S.C.R. 145 (S.C.C.).
80 Nicolas Proferes, "The Development of Privacy Norms" in B.P. Knijnenburg et al., eds., Modern Socio-Technical Perspectives on Privacy (London: Springer Nature: 2022) 79 at 79 https://doi.org/10.1007/978-3-030-82786-1_5
81 R. v. Tessling, [2004] S.C.J. No. 63 at para. 25, [2004] 3 S.C.R. 432 (S.C.C.); R. v. Patrick, [2009] S.C.J. No. 17 at para. 14, 2009 SCC 17 (S.C.C.).
82 R. v. Plant, [1993] S.C.J. No. 97, [1993] 3 S.C.R. 281 (S.C.C.); R. v. Godoy, [1998] S.C.J. No. 85, [1999] 1 S.C.R. 311 (S.C.C.); R. v. Edwards, [1996] S.C.J. No. 11, [1996] 1 S.C.R. 128 (S.C.C.).
83 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1272. "It is crucial to recognize that privacy is not just a legal concept, but social and class-based factors also influence it. Privacy is a valuable commodity that can be purchased similarly to other commodities. For example, larger homes provide more privacy since owners do not share walls or common hallways with their neighbours." However, In Le at para. 162, the majority explained "that great care is required so as not to fall into the trap of making and justifying special rules for neighbourhoods that are thought to have higher crime rates . . . . Effective law enforcement depends upon the co-operation of the public and the police must act in a manner that fosters co-operation and contributes to the public's perception of police legitimacy."
84 Canada (Director of Investigation & Research, Combines Investigation Act) v. Southam Inc., [1984] S.C.J. No. 36 at para. 25, [1984] 2 S.C.R. 145 (S.C.C.).
85 Canada (Director of Investigation & Research, Combines Investigation Act) v. Southam Inc., [1984] S.C.J. No. 36, [1984] 2 S.C.R. 145 (S.C.C.).
86 R. v. Landry, [1986] S.C.J. No. 10, [1986] 1 S.C.R. 145 (S.C.C.); R. v. Feeney, [1997] S.C.J. No. 49, [1997] 2 S.C.R. 13 (S.C.C.); R. v. Godoy, [1998] S.C.J. No. 85, [1999] 1 S.C.R. 311 (S.C.C.).
87 The home is a place of privacy but also a place of heightened vulnerability. The court chooses which element to highlight in any given moment.
88 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1270.
89 Stairs at para. 51: The minority held that they "find it unhelpful to compare privacy in a home to a strip search or obtaining bodily samples"; R. v. Tessling, [2004] S.C.J. No. 63 at para. 20, [2004] 3 S.C.R. 432 (S.C.C.): The majority stated that privacy interests come in different forms - whether personal, territorial or informational - which are not easily equated. The focus in tailoring the common law framework is to reconcile the specific privacy interests at issue with the specific law enforcement interests that counterbalance them. Whether a search of a home could be more or less invasive than body, cellphone or car searches is, in this respect, tangential; the key questions are when and how the undoubtedly strong privacy interests in a home ought to yield to varying policing objectives.
90 Stairs at para. 51.
91 Stairs at para. 51.
92 Stairs at para. 72.
93 Stairs at para. 68, citing R. v. Chehil, [2013] S.C.J. No. 49 at para. 29, 2013 SCC 49 (S.C.C.) (emphasis added).
94 The minority would have required reasonable suspicion of an imminent risk to justify home searches incident to lawful arrest to account for heightened privacy interests in dwellings.
95 Stairs at para. 74.
96 Adam Cotter, "Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada", Canadian Centre for Justice and Community Safety Statistics (February 6, 2022), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.pdf.
97 James Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41:2 Alta. L. Rev. 335 at 372 https://doi.org/10.29173/alr1328; Steven Penney, Vincenzo Rondinelli & James Stribopoulos, Criminal Procedure in Canada, 3d ed. (Toronto: LexisNexis Canada, 2022) at 445.
98 Le at para. 76.
99 William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265 at 1270.
100 Adam Cotter, "Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada" (Ottawa: Canadian Centre for Justice and Community Safety Statistics, 2022), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2022001/article/00003-eng.htm - Data from the 2019 GSS show that Black people were more likely than those who were non-Indigenous, non-visible minority to have been discriminated against in an interaction with police; also see, generally, William J. Stuntz, "The Distribution of Fourth Amendment Privacy" (1999) 67 Geo. Wash. L. Rev. 1265.
101 Le at para. 61.
102 See Danardo S. Jones, "Lifting the Judicial Embargo on Race-Based Charter Litigation: A Comment on R. v. Le" (2019) 67 C.L.Q. 42 - we can better capture the racial order's dynamism through a spatial lens, particularly how law mediates the inter-relational performance of racial profiling. See Patricia L. Price, "At the crossroads: critical race theory and critical geographies of race" (2010) 34:2 Progress in Human Geography 147 https://doi.org/10.1177/0309132509339005; Lise Nelson, "Bodies (and Spaces) do Matter: The limits of performativity, Gender, Place and Culture" (1999) 6:4 A Journal of Feminist Geography 331 https://doi.org/10.1080/09663699924926; Luke Bennett, "Legal Geography: Becoming Spatial Detectives" (2015) 9:7 Geography Compass 406. https://doi.org/10.1111/gec3.12209
103 Douglas Allen, Mary Lawhon & Joseph Pierce, "Placing race: On the resonance of place with black geographies" (2019) 43:6 Progress in Human Geography 1001 at 1002. https://doi.org/10.1177/0309132518803775
104 Danardo S. Jones, "Anchoring Lifeline Criminal Jurisprudence: Making the Leap from Theory to Critical Race-Inspired Jurisprudence" (2023) 46:1 Dalhousie L.J. 83.
