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Thursday Thinkpiece: Mintah on Excluding the Indigent From the Public Sphere

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Excluding the Indigent from the Public Sphere

Amy Mintah
(2016) 2 Windsor Rev Legal Soc Issues — Digital Companion 26

Excerpt: Sections I-IV, VI-VII, XII
[Footnotes omitted. They can be found in the original via the link above]

I. INTRODUCTION

“We are witnessing increasing marginalization, the deepening of stereotypes and the exiling of the poor from our political community” with the enactment of the Safe Streets Act. The indigent are increasingly construed as dangerous and less deserving members of society, and the public and private spaces of these individuals have been shrinking as a result. In 1999, the Safe Streets Act came into force in the province of Ontario. British Columbia passed similar legislation in 2004. With the enactment of this type of legislation, one of the most impoverished groups in society has been increasingly punished, imprisoned, and excluded from the public sphere. The Safe Streets Act has been described as one of the more salient displays of the Ontario government’s neo-conservative agenda that effectively exiles the poor from the political and geographical landscape, exacerbating stereotypes, and increasing the marginalization of one of the most impoverished groups in our society. The legislation is akin to the nineteenth century vagrancy laws that were used to punish and imprison the poor. The Safe Streets Act targets one of the most vulnerable groups in society, exacerbating their disadvantaged position. The legislation also offends the basic tenets underlying the constitutional framework of the Canadian Charter of Rights and Freedoms, specifically sections 7, 12, and 15, and therefore should be struck down. Alternatively, amendments could remove the unconstitutional or problematic provisions.

II. OVERVIEW OF THE ONTARIO LEGISLATION

Ontario’s Safe Streets Act prohibits individuals from approaching a vehicle at an intersection to ask for money or to repeat a request for money after a person solicited does not respond or declines. The legislation also prohibits aggressive solicitation. The Safe Streets Act defines aggressive soliciting as threatening those solicited, obstructing the path of persons solicited, using abusive language, proceeding behind, alongside, or ahead of persons solicited, soliciting while intoxicated by alcohol or drugs, or continuing to solicit after the person has responded negatively to the solicitation.

The legislation also prohibits the solicitation of a captive audience, which includes those who are using, waiting to use, or departing from an automated teller machine, using or waiting to use a pay telephone or a public toilet facility, waiting at a taxi stand or a public transit stop, on a public transit vehicle, getting in or out of a vehicle, in a parking lot, or in a stopped, standing, or parked vehicle. The legislation states that every person who contravenes the Safe Streets Act is liable for a fine up to $500 for a first offence. For subsequent offences, that person can be liable for up to $1,000, or imprisonment for up to six months, or both. Therefore, for those who are dependant on panhandling for survival, there are only a few places left to engage in such activities.

III. PROBLEMS ASSOCIATED WITH THE SAFE STREETS ACT

The Safe Streets Act has significant problems. It targets one of the most disadvantaged groups in society, homeless and impoverished individuals many of whom have substance abuse problems and physical or mental disabilities. Furthermore, many of the people in this situation have no other options for employment and turn to panhandling to survive. It follows that due to the all-encompassing nature of the provisions, these individuals are severely limited in securing their livelihood.

With regard to the fines for contravening the legislation, it is unrealistic to expect a homeless person, whose income is solely derived from panhandling, to pay these exorbitant amounts. Also, the legislation does not address the underlying causes of aggressive panhandling, which is often poverty, mental and physical disabilities, and substance abuse problems. The Safe Streets Act is an attempt to remove impoverished and homeless groups from the social sphere without addressing the issues responsible for marginalizing these groups. It is no more than a temporary solution, which does not address the foundational issues. Therefore, the Safe Streets Act must be examined to determine whether it requires amending or whether the legislation is necessary at all.

IV. IS THE SAFE STREETS ACT CONSTITUTIONAL?

Aside from the aforementioned problems associated with the Safe Streets Act, there has been a great deal of discussion about the constitutionality of the legislation. The constitutionality of the Safe Streets Act was upheld by the Ontario Court of Appeal, and ultimately by the Supreme Court of Canada. However, in light of the decision handed down by the Supreme Court of Canada in R v Bedford, the constitutionality of the Safe Streets Act may be re-examined.

The Supreme Court of Canada is not forever bound by its past rulings and has the jurisdiction to revisit a decision. A lower court is not entitled to ignore binding precedent. However, this common law principle of stare decisis is subordinate to the Charter and therefore a court cannot be required to uphold an unconstitutional law. That being said, the threshold for readdressing a matter is not an easy one to reach, as it requires a new legal issue to be raised, a significant change in the circumstances, or the introduction of evidence that fundamentally shifts the parameters of the debate.

The court in Banks did not consider whether the legislation violates section 12 of the Charter, nor did the court consider gross disproportionality or arbitrariness in its decision. In addition, the court did not consider the constitutionality of proceeding with an ex parte trial, where the defendant is not present at trial due to mental health issues or lack of transportation, and imprisonment may flow from a conviction.

Although the court in R v Jenkins upheld the constitutionality of conducting an ex parte trial when there is a risk of incarceration, the circumstances were quite different than those in Banks. The defendant in Jenkins was not as vulnerable as the appellants in Banks. The facts provide no indication that he was homeless and therefore, would presumably have less difficulty in ascertaining his trial date. In contrast, homeless individuals who do not own a means of communication may have greater difficulty discovering their trial date. Therefore, given that the court in Banks failed to consider such pressing issues, the constitutionality of the Safe Streets Act should be revisited.

VI. SECTION 7 ANALYSIS

Although the Ontario Court of Appeal and the Supreme Court of Canada upheld the constitutionality of the Safe Streets Act, in light of the decision handed down by the Supreme Court in Bedford, the constitutionality of the Safe Streets Act may be re-examined. The question under section 7 of the Charter is whether anyone’s life, liberty, or security of the person has been denied by a law. As the offences under the Safe Streets Act are provincial offences, an accused may be convicted at an ex parte trial, depriving such individuals of their right to full answer and defence. Because a person convicted under the Act may receive a six-month jail sentence in an ex parte trial, an individual’s section 7 Charter rights are engaged. Incarcerating an individual without giving them the right to a full answer and defence is not only problematic, but it infringes upon the defendant’s liberty interests.

The impugned provisions also create an unsustainable life for the “poor who beg.” The Safe Streets Act severely restricts groups who engage in squeegeeing to raise money for their livelihoods. An individual who is unemployable due to a mental illness or an addiction and does not have social support will not have money for food, clothing, or shelter. Begging may be the only way that this person is able to pay for the necessaries of life. When legislation severely restricts a person’s freedom to sustain their life, this person will be left with two options: (1) to live without any income, and rely solely on shelters for food and housing; or (2) resort to other unlawful activities to earn income, such as selling drugs or stealing. Therefore, the legislation produces an unsafe environment for those who are unemployable, do not qualify for social assistance, and have no social support.

In order to engage section 7 of the Charter, there must be a sufficient causal connection between the impugned laws and the risk to those who engage in panhandling. As noted by the Supreme Court of Canada in Bedford, there are three possible standards for causation: (1) sufficient causal connection; (2) a general impact approach; and (3) active and foreseeable and direct causal connection. The court held that the sufficient causal connection standard should prevail because it is a flexible standard that considers the unique circumstances of each case. It follows that to engage section 7, there must be a sufficient causal connection between the impugned law and the prejudice suffered by the claimant. The standard does not require that the impugned law be the only or the dominant cause of the prejudice suffered by the claimant. It is satisfied by a reasonable inference, drawn on a balance of probabilities.

With respect to the Safe Streets Act, there is a sufficient causal connection between the impugned law and the prejudice suffered by the “poor who beg.” The legislation places excessive limits on this group’s ability to panhandle, which prevents them from engaging in their only means of livelihood, pushing them further into poverty. According to sociologist Bill O’Grady, squeegee work is one of the few types of activities available to homeless youth that provide a level of stability and subsistence. Prohibiting squeegee work encourages these individuals to engage in far riskier conduct for survival. Because the legislation prohibits this group from engaging in one of their only means of subsistence and encourages participation in other unlawful activities, there exists a sufficient causal connection between the legislation and the prejudice suffered by individuals who beg for a living.

Because it has been established that the impugned laws deprive the “poor who beg” of security of the person, the remaining step in the section 7 analysis is to determine whether this deprivation is in accordance with the principles of fundamental justice. The principles of fundamental justice lay out the minimum requirements that must be met by a law that negatively impacts a person’s life, liberty, or security of the person. The concept of principles of fundamental justice is not a right. Instead, it is a qualifier of the right not to be deprived of life, liberty, and security of the person, and its purpose is to set the parameters of that right.

The principles of fundamental justice are concerned with arbitrariness, overbreadth, and gross disproportionality. An arbitrary, overbroad, or grossly disproportionate effect on one person is sufficient to establish a breach of section 7. Gross disproportionality under section 7 of the Charter asks whether the law’s effects on life, liberty, or security of the person are so grossly disproportionate to the law’s purposes that they cannot rationally be supported. Gross disproportionality is not concerned with societal benefits that might flow from the law. Instead, it balances the negative effect on the individual with the purpose of the law. For example, the Supreme Court of Canada held that a bawdy house prohibition was unconstitutional because the law’s harmful impact was grossly disproportionate to its purpose.

The object of the Safe Streets Act is to address the issues of public safety and nuisance that may be associated with aggressive panhandling. The harmful impact of this legislation on the “poor who beg” is significant, as it exacerbates the group’s disadvantaged position in society. As discussed previously, breaching this legislation may result in a sentence of up to six months in prison. Also, these individuals may have to pay substantial fines that they cannot afford and will likely be pushed to engage in other unlawful activities in order to survive. Prohibiting certain activities arbitrarily identified as “aggressive soliciting” puts the indigent at risk by forcing participation in other unlawful activities to earn income. The harmful impact of the legislation on the “poor who beg” is grossly disproportionate to the purpose of the law. It follows that the impugned law negatively impacts the security of the “poor who beg” and engages section 7 of the Charter.

A section 7 analysis also demands an assessment of arbitrariness. Arbitrariness asks whether there is a direct connection between the purpose of the law and the impugned effect on the individual. There must be a rational connection between the object of the law that causes the section 7 deprivation and the limits imposed on life, liberty, or security of the person. Otherwise, the law will arbitrarily limit those rights. The object of the Safe Streets Act is to promote safety within a community. However, the effect of preventing an individual from engaging in their livelihood, which leads to unlawful activity in order to earn income, has no connection to the objective of encouraging safety. Therefore, the law is arbitrary.

VII. IS THE SECTION 7 VIOLATION JUSTIFIED UNDER SECTION 1 OF THE CHARTER?

Once it is established that a Charter right has been infringed, it must be determined whether the violation can be justified under section 1 of the Charter. To justify the violation, the law or government action must have a pressing and substantial objective. Then, it must be considered whether the law’s negative impact on an individual’s rights is proportionate to its pressing and substantial goal of furthering the public interest. In this analysis, the government bears the burden of demonstrating that a law that breaches an individual’s rights can be justified.

For the law’s negative impact to be proportionate to its objective, the law’s objective must be rationally connected to the limitation it is imposing on the Charter right. A rational connection demands that the law is a rational means for the legislature to pursue its objective. Also, the court must determine whether the legislature could have created a law that minimally impairs the right or infringes the right to a lesser extent. Finally, the court must weigh the negative impact of the impugned legislation on individual rights against the beneficial impact of the law in achieving its goal for the public good. The impact must be judged quantitatively as well as qualitatively.

The negative impact of the Safe Streets Act on the rights of individuals is not proportionate to the pressing and substantial goal of the law in furthering the public interest. The purpose of the legislation is to limit squeegeeing and aggressive forms of solicitation to promote street safety. The Attorney General stated that “our government believes that all people in Ontario have the right to drive on the roads, walk down the street or go to public places without being or feeling intimidated. They must be able to carry out their daily activities without fear.” Promoting safer streets is a pressing and substantial goal. Although the law is a rational means for the legislature to pursue its objective of promoting safer streets, the legislature could have created a law that infringes rights to a lesser degree. For example, prison could be removed as a penalty, fines could be lowered, and less stringent limits could be placed on those who engage in soliciting and panhandling as a means of survival.

The legislation’s negative impact on individual rights outweighs its potential beneficial impact. This negative impact includes prohibiting individuals from merely pursuing their sole means of livelihood, fining and imprisoning these individuals, encouraging participation in other unlawful conduct for subsistence, and excluding the indigent from the public sphere. The only potentially positive impact of the law may be more efficient circulation of traffic and less nuisance caused by “the poor who beg.” Weighing the negative effects of the law with the beneficial effects shows that the negative effects outweigh the positive. Therefore, the law’s violation of section 7 cannot be justified under section 1 of the Charter.

XII. IS THE SAFE STREETS ACT A DRACONIAN AND INEFFECTIVE LAW?

If the Safe Streets Act would survive Charter scrutiny, it is crucial to assess the effectiveness of the legislation. The assessment considers the following questions: (1) What social harms are we trying to remedy through the legislation? and (2) Is the legislation effectively addressing these harms? As previously outlined, the legislation seeks to remedy the social harm of the fear that aggressive panhandling may create. As articulated in Banks, people must be able to carry out their daily activities without fear. Although the immediate effects of the legislation may be desirable, the law does not offer a sustainable or permanent solution. Prohibiting aggressive panhandling does not address the underlying causal factors, such as poverty, desperation, mental illness, and addiction. Panhandlers, because of their impoverished and vulnerable state, are often not in the position to respond to tickets issued to them, do not have the means to pay the imposed fines, and are less likely to attend hearings where they may be sentenced to six months in prison.

There are already provisions in the Code that protect individuals from harm or harassment on the street. If an individual truly feels unsafe on the street because of threatening demands for money, this person would already have the power to report the conduct to the police under the Code. Because of this existing avenue of protection, it must be determined whether a separate piece of legislation is necessary. The Code, as opposed to the Safe Streets Act, also creates greater safeguards for individuals charged under this offence because an amicus curiae may be appointed when required. Therefore, there is an existing regime in place to address danger in public spaces.

The provision that defines aggressive soliciting must be examined more closely. Although most would likely agree that threatening or using abusive language while soliciting would fall under the category of aggressive soliciting, the inclusion of soliciting while intoxicated may be overly broad and discriminatory. This provision targets homeless populations that are plagued with substance abuse problems. Such individuals are effectively banned from soliciting. Not only is this provision targeting those who are already vulnerable and impoverished, it is an ineffective way to address the underlying causes of aggressive panhandling. Under the current legislation, those with substance abuse problems will be fined or imprisoned instead of being offered treatment. Therefore, in addition to being unconstitutional, the legislation is fraught with problems.

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