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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Making sense of crime statistics

Crime Rates 2011

Police-reported crime rates, Canada, 1962 to 2011 – Statistics Canada

This week, Statistics Canada released statistics compiled by the Canadian Centre for Justice Statistics showing that Canada’s crime is at its lowest level in 40 years. Politicians, journalists, pundits and professors quickly responded.

Depending on their point of view, people fault the statistics for failing to consider un-reported crime, or praise them for proving that current crime approaches are working. Some see the drop in crime as a reason to challenge the Conservative plan to expand prisons. While others argue that more still needs to be done to ‘keep criminals off the streets’.

Vic Toews tweets: Crime rate down 6% – shows #CPC tough on crime is working. Rate is still 208% above 1962 levels, more work for our gov’t to do.

Dan Gardner tweets: Some try to pacify Canadians with statistics.” Who said that in 2008? Anyone? That’s right. Stephen Harper.

Whatever your opinion about crime and criminal justice, you’re likely to find someone who can use these statistics to strengthen that view.

So how do we make sense of crime statistics?

Since this Statistics Canada report only includes offences reported to and substantiated by the police, some say the numbers paint an incomplete picture. Irvin Waller, Criminology Professor at Ottawa University, made this argument in an interview the CBC yesterday, pointing out that certain types of crime, especially sexual violence, are under-reported and that surveys which ask people if they have been a victim of crime reveal a higher rate of violence than do the numbers from the police.

But the numbers can be skewed the other way too. For example, Professor Waller noted that domestic violence used to be considered a family matter. When police began treating it more like other types of assault, the rates of reporting this type of crime suddenly spiked. Did this mean there was a surge in domestic violence? Not necessarily. How something is observed can significantly influence how it is reported and understood.

Similarly, these recent statistics show a rise in child pornography and pot possession. But we should be cautious about jumping to the conclusion that these crimes have risen to the same degree that the numbers suggest. Note the legislation that’s been coming out of Ottawa in the last year and see how the government, and subsequently police, are targeting child pornography and cracking down on pot use.

But even if most people will agree that violent crime rates have decreased, the reasons for this decline will be as numerous as pages in an omnibus bill. Have the tough-on-crime approaches been working, or are we seeing the benefits of programs which reintegrate young offenders and target underlying social issues? As John F. Kennedy said, “victory has a thousand fathers but defeat is an orphan.”

I’d be the last person to say that statistics don’t matter, but this latest report has shown that true understanding of crime and criminal justice requires more than a series of numbers and echos of rhetoric.

So if you can help make sense of the statistics, please add your comments below.

Youth Justice Programs Lose Funding

When the government says that it is continuing to fund youth justice programs, you might think that’s a good thing.

Except in this case, with this government, ‘continuing to fund’ actually means slashing funding by 20% – a little detail that was omitted from Justice Minister Rob Nicholson’s June 27th news release. Titled ‘Government of Canada announces continued support to youth justice services’, it sounds like a good news story.

It’s not.

The federal government is cutting $35.6 million used to supervise and rehabilitate young offenders. The annual fund of $177.3  has suddenly dropped to $141.7. This move has stunned provincial ministers, social workers and especially those working with youth in conflict with the law.

And while the government is touting the savings made from this cut, reducing rehabilitation efforts doesn’t actually make much financial sense. As Beth Alkenbrack, a youth counsellor in Thunder Bay working to keep at-risk youth out of jails, told the Toronto Star, “It costs less than $10,000 a year to service a youth with me, and if they’re in a youth justice custody facility, it’s going to cost a minimum of $150,000 a year.”

When taken in conjunction with the recently enacted Omnibus Crime Bill, things are looking very grim for youth justice in Canada. Bill C-10 has meant more young people are being sentenced to jail for less severe crimes and for longer times.

Article 40 of the Convention on the Rights of the Child obligates states to use alternatives to jails as much as possible, with detention as a last resort, and to give priority to rehabilitation, reintegration, and correction. Already Bill C-10 violates the Convention. This recent announcement adds to the shameful disregard of the rights of youth, of effective responses to crime, and of basic common sense.

Speech from Budget Bill Rally in Ottawa

Frances Deverell Rev. Frances Deverell is the president of the Canadian Unitarians for Social Justice (CUSJ).

On Saturday, June 2, she joined the Leadnow protest in Ottawa outside Conservative Minister John Baird’s office and delivered a rousing speech to a crowd of over 100.

  

 

C-38 – Anti Democracy, Anti-Environment, Anti Economic Justice

A big thank you to Lead Now for organizing this rally and to Anita Grace for stepping up to be the local contact on the ground. And thank you so much for inviting me to speak on behalf of the Canadian Unitarians For Social Justice. Thanks to all the Unitarians and all the rest of you who came here today to stand in the rain and protest this terrible budget bill. Shall we take a page out of the Occupy Movement and try the human microphone? Yes?

Frances Deverell

Rev. Frances Deverell addressing the June 2 rally in Ottawa.

Mic check. Mic check.
I didn’t want to come out here and stand in the rain for a protest!  Did you?
I came because my heart is broken. This budget bill is a terrible bill for Canada.
I came to stand on guard for Canada.
As a Unitarian minister I want to hold up 3 principles I hold sacred.

The first is democracy. I object to the process of C-38.
An omnibus bill hides the facts. An omnibus bill suppresses debate.
We pay MP’s to examine the details give close scrutiny debate and LISTEN!
Closure gives no time for this.
In a democracy government regulates industry for the benefit of the common good.
This budget fires scientists who study Canada and produce knowledge.
This budget fires librarians, archivists, and statisticians who organize and store and make meaning of knowledge, and who keep our history. It doesn’t want to make decisions or set policy based on knowledge. It doesn’t value who we are.
This budget fires inspectors in all areas. When government abrogates its responsibilitiy of oversight it leaves the fox in charge of the chicken coop. We have more Walkerton’s, Food poisoning, Enbridge leaky pipelines,  and Gulf oil spills.

The second is the interdependent web of all existence of which we are a part.
I believe the earth, the air, the water are sacred.
I believe all species have a right to a place to live.
Gigantic scale mining produces industrialized landscapes that wipe out all life in their path. This trend must stop. It is a false economy.
We must change our ways to live in harmony with the natural world that sustains us and gives us life.
Mr. Harper and Mr. Baird are dismantling our environmental protection, to promote fast tar sands growth. The want to ignore their obligations to consult with First Nations who live and die eating polluted wildlife.
They care nothing for the needs, and well being, of future generations.
This bill changes the face of Canada without even a debate for the sake of greed and profit. This government was elected by 39% of the vote but it wields 100% of the power and gives 61% no respect. One minister can make and change rules with no consultation. Absolute power corrupts absolutely.
Why are they afraid to talk? Why are they afraid to listen?

Third: I hold justice, equity, and compassion sacred.
Where in this budget do we care for the homeless? Where in this budget do we care for the hungry? Instead, funding for medicare and education is threatened. Our pensions are under attack.
For the first time our children will have less security and well being than we have had. The social safety net that my parent’s generation set up is being dismantled piece by piece.
I stand here today in the rain to stand on guard of Canada.
I call on this government to slow down, slow down, slow down.
Break up this bill. Give us a national debate about the kind of Canada we want.
We want democracy.
We want environmental protection.
We want government oversight of industry.
We want respect and consultation with First Nations.
We want equity and a fair chance for all people and all life.

Bill C-38: Nobody voted for this

Protesting Bill C-38

People rallied in Ottawa to protest Bill C-38

Across Canada today, people gathered at the offices of their local Conservative MPs, looking for 13 ‘hero MPs’ who will vote against the omnibus budget bill.

Bill C-38, the 425-page budget bill, contains an unprecedented number of legislative changes. Major changes included in this bill are:

  • Tightening up tax penalties for NGO advocacy
  • Repealing the Environmental Assessment Act and replacing it with a whole new Act.
  • Restricting the length of pipeline environmental assessments.
  • Repealing Canada’s Kyoto commitment.
  • Extending the age at which Canadians will be eligible for old age pensions.
  • Removing the Office of the Inspector General, responsible for CSIS oversight.
  • Eliminating the International Centre for Human Rights and Democratic Development.
  • Eliminating the National Round Table on the Environment and the Economy.
  • Eliminating the First Nations Statistical Institute.
  • Eliminating the National Council on Welfare.

Here in Ottawa, on behalf of LeadNow, I organized a protest outside the office of Conservative MP John Baird. I was amazed and humbled by the turn-out – probably 120 came out – despite cool weather and threatening rain clouds. We raised our voices in solidarity, telling our government that we are watching and we are deeply concerned.

Protesting Bill C-38

Conservative Budget Anti-Democratic

I brought a long sheet of paper on which people were encouraged to write messages to John Baird (the paper will be delivered to his office this week). Some of the words written there include:

“I don’t feel at home in Canada anymore.”

“Mr. Baird, Canadians care about clean air and water. We do not support the changes in Bill C-38.”

“What about my future?”

“Bill C-38 is pushing me into poverty. You promised to protect me and all seniors.”

“Bill C-38 will affect my life forever.”

“For democracy’s sake, stop this bill.”

One of the things I heard repeatedly from people at today’s rally was that this was the first time they had participated in a protest, but they felt compelled to come out.

“We will not be silent,” said Rev. Frances Deverell of the Canadian Unitarians for Social Justice and the crowd shouted back, “We will not be silent.” Silence is not an option when democracy and our environment are so threatened.

A movement is growing across Canada – and today, it was thrilling to be a part of it.

For more information on Bill C-38, please see the attached pdf which was prepared and shared by Patricia, one of those attending today’s rally. I would also encourage you to check out Black Out Speak Out.

Private Member’s Bills

The many changes to the Canadian Criminal Code legislated by C-10 have not satisfied this government’s hunger for more bills to get ‘tough on crime’,  restrict the rights of offenders, and curtail judicial discretion.

Since the beginning of this current Parliamentary session, 221 private member’s bills  have been introduced in the House.  While these bills cover a wide spectrum of public policy (such as setting standards for cancer screening and increasing public awareness of epilepsy), many of them are focused on crime.

For example, Bill C-394 will create a new criminal offence for recruiting young people into gangs. Another will levy $5,000 fines or jail terms of up to 10 years for wearing a mask or face paint at a riot.  Another will give federal prison officials more authority to dismiss inmate grievances by deeming them “vexatious” or “frivolous”.

Another private member’s bill, loudly applauded by the Conservative benches, will repeal Section 13 of the Canadian Human Rights Act and prevent rights claims based on hate speech from being brought before human rights commissions.

Former executive director of the John Howard Society, Graham Stewart, explains that rules prevent MPs from tabling bills which deal with economic policies. “So crime bills are one of the few areas that private members can propose legislation that will attract national attention. Now that mandatory minimum penalties are accepted by the government and the opposition as an acceptable solution to just about everything, they have become a simple way to respond to sensational incidents where an MP wants to be seen to be doing something in response to an incident in his/her riding.”

For example, Bill C-299, presented by Conservative MP David Wilks, would require mandatory five-year jail terms for kidnappers of minors. David Wilks is a former RCMP officer and mayor of the B.C. town where Kienan Hebert went missing last fall. The issue of kidnapping of minors has also been flooding the news with the recent trial of Michael Rafferty, who was found guilty of first-degree murder, abduction and sexual assault of 8-year-old Tori Stafford.

In response to Bill C-299, retired Supreme Court of Canada Justice John Major urged the Commons justice committee to refrain from further tying judges’ hands. He also warned the the Criminal Code is becoming too complicated as legislation is “patched” together with ad hoc amendments.

Nonetheless, private member’s bills such as C-299 are easy to draft and are almost a sure to gain public support, especially when Rafferty’s case is still so fresh in our minds.

Stewart fears that this type of reactionary legislation is precisely what led to rampant increases in sentences through mandatory minimum sentences in the US. “Someone would champion a new get tough penalty in the face of a sensational event and label anyone who objects as soft on crime,” he says. “Each would leapfrog the former to prove that they were tougher – apparently thought to be a good thing.”

“There are no brakes on this system of vengeance,” Stewart warns. “Private member’s bills are a very serious problem as punishment is turned into the currency of cheap political tricks.”

Double-bunking part of prison expansion plan

prison bunksExpansion plans for a federal prison in Kingston, Ontario show provisions are being made for double-bunking  – a practice condemned by many as being dangerous and inhumane.

On CBC’s Power and Politics, host Evan Solomon questioned MPs about the development plans for the Collins Bay institution, which show that standard cells will be built with provision for a “future upper bed.”

Candice Hoeppner, Parliamentary Secretary to the Minister of Public Safety, said the government does not have plans to make double-bunking permanent, but that preparation for them is “just good planning”.

NDP Justice Critic Jack Harris countered that, “prudent planning would be to avoid the kinds of prisons policies that they’ve got now, which is going to lead to more violence, people with less rehabilitation after being in prison and coming out being more dangerous offenders than when they went in.”

Double-bunking, putting two inmates in one cell, is already practiced in Canadian prisons. Corrections Canada reports that 13% of inmates are currently double-bunked – and this figure could rise as high as 30% as the tougher sentencing provisions of the omnibus crime bill come into effect.

In 2010, Jeremy Phillips, 33, an inmate at the Mountain Institution in the Fraser Valley, was killed by his cellmate Michael Wayne McGray, a man serving six concurrent life sentences for murders.

Howard Sapers, Canada’s correctional investigator, has  condemned double-bunking for increasing violence between inmates, threatening the safety of guards and increasing the spread of infectious diseases.

In his Annual Report 2009-10, Sapers gave an example of case in which double-bunking resulted in violence: “A maximum security inmate is released from administrative segregation to a double-occupancy cell, despite a psychological assessment on file that noted it would be preferable if he was accommodated in a single cell because of previous psychiatric history. The inmate assaults his cellmate and is transferred to the Special Handling Unit.”

Sapers also reported that bed capacity in the five treatment centres only met 50% of identified need. “Exemptions are even being requested to “double up” in segregation cells where two inmates must share space designed for one for up to 23 hours a day.”

“Given high rates of mental illness, drug addiction, violence and criminal gang membership,” Sapers reports, “it is difficult to see how double-bunking can be viewed as a correctionally appropriate or sustainable solution to crowding pressures in either the short or medium terms.”

The Correctional Service of Canada (CSC) used to require approval by the Commissioner prior to increasing the number of double occupancy cells. However, in Augst 2010, CSC released a policy bulletin announcing the suspension of this policy. This decision was made despite acknowledgement that “single accommodation is the most desirable and appropriate method of housing offenders [and that] double bunking (one cell designed for one inmate occupied by two) is inappropriate as a permanent accommodation measure within the context of good corrections.”

Responding to double-bunking

Vic Toews

Public Safety Minister Vic Toews (Chris Wattie/Reuters)

When questioned about the practice of double-bunking by CBC’s Evan Solomon in August, 2010, Public Safety Minister Vic Toews said that double-bunking is “not something that is inappropriate or illegal or unconstitutional or violates international standards”.  Toews went on to say that “many countries use double-bunking and quite frankly I think in many cases it’s appropriate”.

However, Justin Piché points out the practice of double-bunking contravenes the United Nations’ Standard Minimum Rules for the Treatment of Prisoners. Section 9. (1) of this international standard states that “Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room”.

The Union of Canadian Correctional Officers has also stated: “Double Bunking is an unsafe, ineffective means by which to address population management, and will inevitably prove problematic for correctional officers, correctional staff, offenders, CSC and, finally, the general public.”

Additionally, the Canadian Criminal Justice Association argues that the practice of double-bunking  threatens the safety of inmates and staff and, ultimately, the public.


Homelessness

EMCP, Carleton University

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