An Ontario court is set to hear a constitutional challenge to a begging law that advocates say is grossly disproportionate and infringes on the rights of some of the most vulnerable members of society.
The challenge, which is heard this week in the Ontario Superior Court, was launched in 2017 by the Fair Change legal clinic against the Safe Streets Act, in force since 2000. The law prohibits aggressive solicitation and requests for a “captive hearing.” , including people waiting to use an ATM or public transportation.
Violations of the law carry a maximum fine of $500 for the first violation and a maximum fine of $1,000 or imprisonment of up to six months for subsequent violations.
Fair Change maintains that the law violates several constitutional rights, including freedom of expression and the right not to be subjected to cruel and unusual punishment.
“By design, it targets the most vulnerable population in our society for committing one of the most desperate acts imaginable: begging for coins,” Chris Hummel, legal counsel for Fair Change, wrote in a statement.
“It imposes fines on people who have nothing to give and imprisons people who already disproportionately suffer from mental illness, trauma, addiction and stigma.”
Fair Change’s arguments cite a 2011 investigative article that found that the Toronto Police Service alone issued 67,388 tickets under the Safe Streets Act between 2000 and 2010, totaling more than $4 million. Only $8,086.56 was raised, Fair Change said.
Fair Change’s legal arguments highlight the struggles of several people under the law, including Donnie Dunbar, who has accumulated approximately 243 fines under the law worth $25,000.
“Because Mr. Dunbar is illiterate and has no address, he finds it difficult to keep track of his fines, court dates and probation appointments,” Fair Change writes.
Dunbar estimates he has been to jail 50 to 60 times for missing court and probation appointments, often spending 30 to 45 days behind bars, Fair Change says. When he is in jail, her disability support payments are cut off and then she has to reapply for them.
In defending the law, government lawyers write in their legal arguments that while there is no doubt that the circumstances of people on the streets are “disadvantaged,” the law does not cause or contribute to those circumstances.
“The plight of indigent people like some of the petitioner’s witnesses, who have racked up thousands of dollars in fines for hundreds of convictions under a variety of statutes after dismissing their… fines and failing to request or attend their court dates , may well invite sympathy and calls to action,” the government writes.
“But the solution to such challenging and intractable problems is not to overturn the law and declare that indigent people have a constitutional right to threaten the people they solicit their services from, or to follow them home or obstruct their path until they pay, or soliciting while using an ATM or public restroom, or entering a busy intersection and knocking on car windows.”
Furthermore, the government argues, the courts have already weighed in on the law, upholding its validity in a previous constitutional challenge, and there is no reason to deviate from that. The courts agreed that the law violated individual statutory rights, but said the violation was justified in the interest of public safety.
This challenge is broader, Fair Change argues, and much more evidence can be presented to the court from the law’s more than two decades of impacts.
Fair Change maintains that the penalties under the law place a heavy burden on people who have had to resort to begging, but the government maintains that courts can still be flexible in making appropriate and proportionate sentences.
“Applicant complains of ‘astronomic fines and imprisonment of people who beg, fines that far exceed their means to pay,'” the government’s lawyers write.
“The Act does not impose astronomical fines. For defendants whose fines are delinquent and who cannot pay, the Provincial Offenses Act includes a number of legal mechanisms, including judicial discretion to reduce or cancel unpaid fines. Nothing in “The Law prevents access to these mechanisms.”
Ontario’s Progressive Conservative government at the time passed the law, just years after cutting social benefits by 21.6 per cent, Fair Change notes. In 2005, the Liberal government introduced an amendment to exempt registered charities, which Fair Change says further stigmatizes homeless people.
This report by The Canadian Press was first published Feb. 6, 2024.