Banks: The Criminalization of Poverty?
Today, Thursday August 23, the Supreme Court intends to deliver judgment in an application for leave that, however decided, is sure to provoke considerable controversy. The case, David Banks, et al. v. Her Majesty the Queen (31929), concerns an appeal by a group of homeless men convicted of panhandling offences under sections of Ontario’s Safe Streets Act, 1999, S.O. 1999 c.8 and the Highway Traffic Act, R.S.O. 1990, c. H.8 (as amended by section 7 of the Safe Streets Act). While the appellants concede that by ‘squeegeeing’ on various Toronto city roads and soliciting money from cars stopped at red lights, they had committed an offence, they seek to have their convictions set aside because the legislation is unconstitutional in nature.
The Safe Streets Act has long provoked the consternation of advocates for Ontario’s homeless youth, who envision the overall piece of legislation as an attempt to criminalize poverty, and to further politically and economically disenfranchise some of the province’s poorest citizens.
Court of Appeal for Ontario
At the Court of Appeal, the appellants were represented by the Canadian Foundation for Children, Youth and the Law (a.k.a. Justice for Youth and Children) and the Ontario Coalition Against Poverty. These two groups worked together to file an impassioned and well-reasoned factum that, despite its virtues, ultimately failed to persuade the Court of Appeal.
According to the factum, the Safe Streets Act is unconstitutional on the following bases:
(1) sections 2, 3 and 7 of the Act are ultra vires the legislative competence of the province of Ontario because they are in pith and substance criminal law; (2) sections 2, 3 and 7 infringe the right to life, liberty and security of the person contrary to s. 7 of the Charter; (3) sections 2, 3 and 7 of the Act infringe the right to equality within the meaning of s. 15 of the Charter; (4) Sections 2, 3 and 7 of the Act infringe the right to freedom of expression guaranteed by s. 2(b) of the Charter; (5) the above mentioned violations are unjustifiable under s. 1 of the Charter.
In considering the appellants’ position, Justice of Appeal Juriansz, speaking for an unanimous court, first found it necessary to consider the appropriate scope of the appeal. Deeming the appellants’ approach overly broad, and wary of making any pronouncement about the constitutionality of legislative provisions only indirectly related to the appeal, Justice Juriansz limited his consideration only to those provisions under which the appellants were charged, s. 3(2)(f) of the Safe Streets Act and s. 177(2) of the Highway Traffic Act. Whereas section 3(2)(f) prohibits soliciting a person who is in or on a stopped, standing or parked vehicle, section 177(2) provides that:
No person, while on the roadway, shall stop, attempt to stop or approach a motor vehicle for the purpose of offering, selling or providing any commodity or service to the driver or any other person in the motor vehicle.
Division of Powers
Next Justice Juriansz tackled the division of powers claim presented by the appellants. He commenced his rejection of this claim by first noting that federal and provincial spheres of legislative competence have frequently been recognized to overlap, and this overlap is not, in and of itself, unconstitutional. Thus, proving that the provisions have a criminal law aspect is insufficient. Rather, in order to succeed it must be established that the provisions do not fall within provincial power or are repugnant to federal legislation. Here, citing ss. 92(13) and 92(16) of the Constitution Act, 1867, Juriansz was emphatic that a province has the right to enact legislation regulating the use of public streets in the interest of safety, efficiency and convenience. Moreover, he highlighted the provincial ability to create offences with penal consequences under s. 92(15) of the Constitution.
For their part, the appellants attempted to demonstrate that the impugned provisions were in pith and substance criminal law. In their estimation, the provisions were the result of a “moral panic” fueled by a perceived danger of intimidation and harassment posed by squeegeeing and panhandling. Offering considerable Hansard and expert evidence, the appellants attempted to thus prove that road safety was clearly not the purpose of the legislation.
Justice Juriansz found the proffered evidence unconvincing, and instead chose to give substantial weight to the wording of the legislation, coming to the conclusion at paras. 41 and 42 that:
[T]he words…are clear. They proscribe the act of soliciting a person stopped in a vehicle, while “on a roadway.” No matter what one may make of the other provisions of the Act, intimidation and harassment are irrelevant to the solicitation addressed by these sections.
Second it does not assist the appellants to establish that the impugned measures address intimidating and harassing behaviour. Such behaviour has a double aspect. Viewed solely as the regulation of the behaviour of one member towards another, it has a criminal law aspect. Viewed as promoting the safe, comfortable and enjoyable use of public thoroughfares and spaces it has an aspect that falls under provincial jurisdiction.
After disposing of the question of legislative competence, Justice Juriansz moved on to consider the appellants’ submission regarding s. 7 of the Charter. It was the appellants’ position that insofar as the offence involves the possibility of imprisonment, the section 7 guarantee of physical liberty is engaged. Moreover, the appellants submitted that a prohibition on squeegeeing denies them the necessities of life. All of this is unconstitutional, they argue, because the impugned provisions are overbroad and vague, and thus not in accordance with the principles of fundamental justice.
In considering the s. 7 claim regarding the necessities of life, Justice Juriansz drew on the SCC Reference re ss. 193 and 195.1(1) of the Criminal Code,  1 S.C.R. 1123 and Ontario Court of Appeal’s A & L Investments Ltd. v. Ontario (1997), 36 O.R. (3d) 127. His conclusion was that because the impugned provisions leave the appellants free to beg or provide services in exchange for spare change in ways that are not prohibited by the legislation, they do not violate their section 7 rights. Furthermore, while potential imprisonment does engage the s. 7 right to liberty, Justice Juriansz did not find the provisions to be either overbroad or vague.
Moving on to the appellants’ position that their right to equality guaranteed under s. 15 had been infringed, Justice Juriansz carefully applied the test in Law v. Canada (Minister of Employment and Immigration),  1 S.C.R. 497, ultimately rejecting the appellants’ claim. First, Juriansz noted that the legislation does not draw a formal distinction between the appellants and others. This is so, he suggested, as the provisions prohibit everyone, not just “beggars,” from soliciting motor vehicles. The appellants, however, argued that they were victims of selective police enforcement, and that the substantive effect of such treatment is different upon beggars than it would be upon others who might be soliciting for non-subsistence purposes. Furthermore, this differential treatment was based on an analogous ground under s. 15, since, as a group, beggars have been historically disadvantaged and marginalized, and the impugned provisions, the appellants contend, stereotypes beggars and further disadvantages them.
In the eyes of Justice Juriansz, it was necessary to draw a distinction between the discriminatory effects of legislation and discrimination in the administration of legislation. Furthermore, he noted that even if the appellants had adequately demonstrated that the provision did amount to differential treatment, the appellants had not properly established that it is based on an enumerated or analagous ground:
It seems to me that appellants identify the proposed group not by a personal characteristic, but by an activity…The proposed group is, in essence, “the poor who beg.” Professor Peter Hogg suggests that a common element of the enumerated grounds is that “[t]hey describe what a person is, rather than what a person does”…[I]n this case I do not regard the activity of begging to be an immutable or constructively immutable personal quality that can only be changed at a “great personal cost.” (para. 99).
After concluding that section 15 had not been violated, Justice Juriansz then turned to the SCC case of Montreal (City) v. 2952-1366 Quebec Inc.,  3 S.C.R. 141, which sets out a test for determining whether a law infringes freedom of expression. First, Justice Juriansz recognized that both the act of begging and that of squeegeeing have expressive content that lie at the core of free speech. Second, in considering the method and location of the expression, he found that, although incompatible with the function of a traffic lane, the appellants’ expression does not seem to undermine the values that section 2(b) is intended to protect: democratic discourse, truth finding and self-fulfillment. Third, Justice Juriansz concluded that, in their effect, the impugned provisions infringe s. 2(b):
The larger statutory context of the impugned provisions, which addresses soliciting more directly, leads me to the conclusion that s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act were intended to control the expressive activity of soliciting while on a roadway. This conclusion does not detract from my earlier finding that their dominant aspect is the regulation…in the interests of public safety, efficient circulation, and public enjoyment of public thoroughfares. It is simply that…the legislation has the incidental purpose of restricting soliciting which is an expressive activity. (para. 126).
Because he found the provisions to infringe section 2(b) of the Charter, it was necessary for Justice Juriansz to conclude with a section 1 analysis which considers whether such infringement is ultimately justified. In his estimation, the objective of regulating pedestrians and vehicles on roadways is important enough to warrant overriding 2(b) within this context. Furthermore, prohibiting people from soliciting a vehicle while on a roadway is rationally connected to this legislative objective. Further still, because beggars are still able to express their message in alternative ways, the impugned provisions impair the appellants’ right of expression as minimally as possible. Finally, Justice Juriansz concluded that the deleterious effects do not outweigh the benefits of the limits imposed by the provisions.
Perhaps sensing what would turn out to be an ensuing flood of criticism, Justice Juriansz was sure to remind us that, although he was a man of great emotional sensitivity, his hands were tied by precedent:
While the appellants’ conditions of economic disadvantage may be deserving of sympathy, they have not established they are entitled to a response that is constitutional in nature on the facts of the case.
It will be shortly revealed whether the Supreme Court is of like mind and heart.