Court strikes down most of Ontario’s Mike Harris-era anti-panhandling law

Posted on April 3, 2024 in Governance Policy Context

Source: — Authors: – Canada
April 3, 2024.   By Jacques Gallant, Courts and Justice Reporter

The move largely guts the Safe Streets Act, passed by the Progressive Conservative government of Mike Harris in 1999 amid years of controversy over so-called “squeegee kids.” 

Most of Ontario’s bans on panhandling in public places — including on transit and near an ATM — have been struck down by a Toronto judge as unconstitutional.

In doing so, Superior Court Justice Robert Centa largely gutted the Safe Streets Act, a law passed by the Progressive Conservative government of Mike Harris in 1999 to curtail panhandling after years of controversy over the issue of “squeegee kids,” who would try to wipe down the windshields of cars stopped in traffic in exchange for money.

While finding that the ban on squeegeeing and panhandling in roadways should be upheld, Centa struck down all other prohibitions on soliciting donations in public, including from people near public toilets, payphones, ATMs, taxi stands and public transit stops, as well as on transit vehicles and in parking lots.

Centa concluded those bans violate freedom of expression and capture many types of solicitations that don’t necessarily interfere with the safe use of public spaces. The judge cited examples of veterans selling poppies near an ATM, or a person sitting nearby on the sidewalk holding up a sign asking for money.

“The mere presence of a homeless person soliciting gifts from persons doing certain things at a prohibited site does not, on its own and without more, pose any danger or impediment to the safe use of public space,” Centa wrote in a 91-page decision released Tuesday.

“Soliciting is of fundamental importance to persons in need and has a real social value. Even if the presence of persons soliciting is annoying or even offensive, a blanket ban on all solicitations is not a proportional limit on freedom of expression.”

The constitutional challenge before Centa was first launched in 2017 by Fair Change, a legal clinic which helps individuals address their panhandling tickets. The clinic argued during a three-day hearing in February that the Safe Streets Act is discriminatory and locking people into cycles of debt with “astronomical fines.” The Ontario government had argued that the act still allowed individuals to solicit money in most circumstances.

The hope is that people will now receive fewer tickets from police as a result of Centa’s ruling, while much work remains to be done to address the systemic issues behind panhandling, said Johan Strombergsson-DeNora, one of Fair Change’s directors of appeals.

“If we want to curb that kind of behaviour, then what we need to do is implement policy that gets people housed, gets people what they need. And the Safe Streets Act has never been that; it has never been something that actually remedies these deeper issues.”

The Ministry of the Attorney General declined to comment on Centa’s ruling.

The judge also struck down most of the section that bans soliciting in an “aggressive manner.” He removed most activities that the act says constitute aggressiveness: obstructing a person’s path, following them, using abusive language, soliciting while intoxicated and persistently soliciting after a person has declined to give money.

The only example in the act that he upheld is threatening people with physical harm. While it’s possible that a person committing one or more of those other examples could still be found by a court to have panhandled in an aggressive manner based on all of the evidence, Centa ruled that it violated several Charter rights, including the presumption of innocence, to legislate that committing those acts inevitably constitutes aggressiveness.

“Is it necessarily true in all cases that a person who solicits while intoxicated by drugs is soliciting in a manner that is likely to cause a reasonable person to be concerned for their safety or security? No,” the judge found.

“I do not accept that a reasonable person would fear for their safety and security if they walked past a person who was sitting cross-legged on the ground, intoxicated by marijuana, smiling blissfully and holding a sign that said, ‘Please spare some change so that my baby and I can get something to eat.’”

Fair Change had also argued that the act is a waste of public resources, pointing out that between 2000 and 2010, Toronto police issued over 67,000 tickets worth just over $4 million in fines, yet only about $8,000 was collected.

A number of groups intervened in the case, including the Ontario Human Rights Commission and the Canadian Civil Liberties Association.

“This decision affirms that the Safe Streets Act is an unconstitutional restriction of the freedom of unhoused and low-income people who seek donations from the public in order to survive and live with dignity,” said Harini Sivalingam, director of CCLA’s equality program, in a statement.

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