Homelessness: What’s law got to do with it?

Should people be fined for sleeping on park benches? Should they go to jail for begging?

All of us are subject to multiple rules and regulations governing how we can use public spaces, such as street corners, sidewalks and parks. As the French poet Anatole France said, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.” Yet few of us are aware of many of rules governing public spaces since we are generally able to meet our daily needs and go about our daily activities without violating them.

The use of legislation, policing and the criminal justice system to respond to homelessness is referred to by researchers like Bill O’Grady and Stephen Gaetz as the criminalization of homelessness, defined as “the use of laws and practices to restrict the activities and movements of people who are homeless, often with the outcome being fines and/or incarceration” (O’Grady, Gaetz & Buccieri 2011, 7).

So what are some of the laws criminalizing homeless in Ontario? What activities are prohibited?

Ontario Safe Streets Act

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At a press conference calling for the repeal of the Safe Streets Act, tickets received by homeless people were dumped on the table. Image from e-petition to sign the appeal.

When the Safe Streets Act (SSA) was introduced in Queen’s Park, MPP Gerry Martiniuk claimed it “has absolutely nothing to do with homelessness. It has nothing to do with panhandling”.  Don’t be fooled. It has everything to do with homelessness and panhandling.

  • 2.(2) “No person shall solicit [panhandle] in an aggressive manner”. An ‘aggressive manner’ is one that is “likely to cause a reasonable person to be concerned for his or her safety or security”, meaning what constitutes aggression is subjective.
    • Examples of aggression include threatening someone, obstructing their path, using abusive language, soliciting while under the influence of drugs or alcohol, or persisting in soliciting after someone has responded negatively.
  • 3.(2) No person shall solicit a captive audience.
    • Examples of a ‘captive audience’ include a person waiting near an ATM, payphone, public toilet, taxi or public transit vehicle; a person in or on a public transit vehicle or parking lot; a person getting in, out of, on, or off a vehicle; and a person in or on a stopped, standing or parked vehicle.

While curbing aggressive or threatening panhandling is an understandable goal of this legislation, a review of SSA tickets between 2004 and 2010 showed on average only 20% were for aggressive solicitation, while 80% were for non-aggressive solicitation of a captive audience (O’Grady, Gaetz & Buccieri 2011, 10). In other words, this legislation is primarily used to crack down on panhandlers who are not threatening but whose presence in a downtown core (where one is always near an ATM, bus stand, pay phone, etc.) is unwanted.

  • 4.(2) No person shall dispose of any of the following things in an outdoor public place: a used condom; a new or used hypodermic needle or syringe; broken glass.

Breaking these rules can result in a fine of up to $500 for a first offence or up to $1,000 and six months imprisonment for repeat offences. The usual fine is $60, but still unlikely to be an amount that can be paid by a panhandler. Over 11 years in Toronto, the total value of tickets issued is over four million dollars, of which 0.2% has been collected (O’Grady, Gaetz & Buccieri 2011, 10). Not surprisingly, ticketing the poorest members of society is not a lucrative endeavor.

Ontario Trespass to Property Act

The Trespass to Property Act prohibits entering and remaining on property “without the express permission of the occupier” 2.(1).  People can be arrested without warrant for trespassing, and even if there is “reasonable and probable grounds” they were trespassing 9.(1) & 10.(1).

By definition, people who are homeless lack a home. They lack access to private space. Seeking spaces to sleep or even just hang out with friends can result in charges of trespassing or loitering.

Ontario Liquor Licence Act

The Liquor Licence Act regulates the “responsible use” of alcohol. As with the trespassing, its impacts are most keenly felt by those who lack private space.

  • 31(2) No person shall have or consume liquor in any place other than,
    • (a) a residence;
    • (b) premises in respect of which a licence or permit is issued; or
    • (c) a private place as defined in the regulations.
  • 31(4) No person shall be in an intoxicated condition,
    • (a) in a place to which the general public is invited or permitted access; or
    • (b) in any part of a residence that is used in common by persons occupying more than one dwelling in the residence
  • 33 No person shall,(a) drink alcohol in a form that is not a liquor

Those violating these regulations can face fines of up to $100,000 and/or imprisonment of up to a year.

 

In addition to these provincial laws, cities create bylaws which penalize and exclude the poorest among us.

Ottawa Parks and Facilities Bylaw

The Parks and Facilities Bylaw regulates how public parks are used. These regulations are subjectively enforced and used to remove marginalized people from public spaces.

  • 3.(1)a. People are not allowed in public parks between 11 p.m. and 5 a.m. (Some exceptions are allowed such as for special events.)
  • 7.(1).g. People are not allowed to have in their possession any alcoholic beverages
  • 7.(1).j. People are not allowed to camp in any park, or construct any tent or other structure. (Constructing a shelter from cardboard or garbage bags can be, and has been, interpreted as ‘camping’.)
  • 4.(c). No person shall leave any food in the park that could be ‘used’ by wildlife
  • 12.(1). No person shall engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behaviour in a park
  • 12.(2). No person shall engage in any activity so as to interfere with or become a nuisance to the general public using the park
  • 12A. No person shall smoke on outdoor municipal property

Ottawa Shopping Cart Bylaw

The Shopping Cart Bylaw prohibits the use of a shopping cart outside of premises of the business that owns the cart (4.2). Shopping carts found on city property can be impounded (8) and their contents disposed (13).

Only those without secure private space need to keep personal belongings in shopping carts.

This list of laws and regulations is not meant to be exhaustive. But it illustrates how the activities and even the presence of people living in extreme poverty is restricted and ultimately criminalized in Ontario.

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About Anita Grace
I'm a PhD student in Law and Legal Studies at Carleton University in Ottawa. I am committed to social justice and informed, effective approaches to inequality and injustice.

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