Did Banks See the Forest for the Squeegees?

More than a year has passed since the Supreme Court of Canada (“SCC”) dismissed the application David Banks, et al v Her Majesty the Queen, [2007] 156 CRR (2d) 376 (SCC) [Banks] for leave to appeal on August 23, 2007. By dismissing Banks did the SCC implicitly endorse the criminalization of poverty?

Admittedly, the SCC receives far more applications than it is able to hear in any given year. A 2000 report estimated approximately 12 percent of applications to the SCC are granted leave. Moreover, not every application for leave contains the requisite public significance to be heard by our top court. However, some believe the decision to dismiss Banks is evidence of the SCC’s indifference towards poverty. This question deserves analysis.

The Case

Shortly before the SCC denied leave, TheCourt summarized the Ontario Court of Appeal’s (“OCA”) decision in Banks. Essentially the appellants argued that the offence of “squeegeeing” as constituted by the Safe Streets Act, 1999, SO 1999, c 8 and the Highway Traffic Act, RSO 1990, c H.8 is unconstitutional.

Writing for the Ontario court, Justice Juriansz summarized the appellants submissions that the legislation is unconstitutional as follows:

The appellants submit the legislation is unconstitutional because:
1. the legislation is criminal law and thus beyond the legislative competence of the province;
2. the legislation infringes the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms;
3. the legislation infringes liberty and security of the person contrary to s. 7 of the Charter; and
4. the legislation infringes the rights to equality guaranteed by s. 15 of the Charter.

Justice Juriansz limited his review to the sections of the Act under which the appellants were charged, rather than considering its broader constitutionality. The appellants claimed that sections of the the Act are ultra vires since provisions are, in pith and substance, criminal law. However, the OCA found that it is not, in itself, unconstitutional when spheres of federal and provincial legislation overlap. Although the Act has criminal aspects, the court found that “the province undoubtedly has competence to enact legislation regulating the use of streets, sidewalks and public spaces by the public.”

In dismissing the appellants s. 7 claim Justice Juriansz held that the Act did not prohibit other activities such as begging or providing services in exchange for spare change. Although the possibility of imprisonment does engage a liberty interest, the court found that the appellants failed to demonstrate that the deprivation thereof was inconsistent with the principles of fundamental justice.

The court rejected the s. 15 discrimination claim for lack of an immutable personal quality:

The impugned provisions do not draw a formal distinction between the appellants and others. They prohibit all persons, and not just ‘beggars,’ from standing on a roadway to solicit a stopped vehicle and from approaching a vehicle to solicit or offer a service. The effect of the provisions is that all persons who wish to solicit or offer a service, must do so at locations other than a roadway.

The impugned provisions of the Act were found to infringe the appellants freedom of expression under the test developed in Montreal (City) v 2952 ­1366 Quebec Inc, [2005] 3 SCR 141. However, they were legitimized under s. 1 of the Charter as serving the broader objective of regulating persons and vehicles on roadways. “[T]he appellants’ conditions of economic disadvantage, may be deserving of sympathy” Justice Juriansz concluded with a note of compassion, but “they have not established they are entitled to a response that is constitutional in nature on the facts of the case.”

The Reason for No Reasons

As stated before, it is not unusual for the SCC to dismiss an application for leave to appeal without reasons. However, in the case of Banks the absence of reasons could upset anti-poverty activities, many of whom believe that the Charter has once again failed the poor.

SCC procudure is governed by the Supreme Court Act, RSC 1985, c S-26. Section 40(1) of the Act gives the SCC discretion to grant leave where:

…[It] is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in the question, one that ought to be decided by the Supreme Court…

In R v Hinse, [1995] 4 SCR 597 Chief Justice Lamer characterized the SCC’s procedure for granting leave as to ensure maximum flexibility:

The ability to grant or deny leave represents the sole means by which this Court is able to exert discretionary control over its docket. In order to ensure that this Court enjoys complete flexibility in allocating its scarce judicial resources towards cases of true public importance, as a sound rule of practice, we generally do not convene oral hearings on applications for leave, nor do we produce written reasons for our grants and denials of leave.

Therefore the lack of reasons in and of itself does not prove the SCC’s lack of interest in poverty issues. Rather, according to the comments from former Chief Justice Lamer, the denial of leave without reasons only confirms that Banks failed to establish the merits of its public importance. It appears very few cases are in fact denied with reasons.

The Criminalization of Poverty

A year after Banks, so-called “squeegee kids” continue to illegally work the streets of Toronto and other urban centres. On a superficial level, few would take issue with the legal arguments made by the OCA in Banks. More controversial however, is the fairly narrow scope of Justice Juriansz’s analysis of the constitutionality of the impugned provisions of the Act.

Viewed broadly it is difficult to understand how the problem urban poverty could not meet the “public importance” test for consideration by our top court. The Safe Streets Act has been lambasted by poverty law activists as concerned primarily with benefiting one class at the expense of another. To this end, the Justice Juriansz’s finding that the appellant’s liberty interest was not infringed because they were still able to beg is also troubling. If begging was sufficient to meet the appellants basic needs why would they engage in an activity which violates the law?

Perhaps, the SCC needed more time before considering legislation which many believe criminalizes poverty. One year later many provinces have enacted similar legislation to the Safe Streets Act. But we’re still waiting.