Proposed By-laws to Regulate Panhandling and Squeegee Activities

The Emergency and Protective Services Committee recommends that:

(1)Recommendation No. (1) embodied in the report (July 13, 1998) from the City Solicitor be adopted subject to Part A thereof being amended by deleting all of the words after the word "activities" so that it reads as follows:

"A.No by-laws be enacted to regulate panhandling and squeegee activities;"

(2)the Toronto Association of Business Improvement Areas, the Commissioner of Community and Neighbourhood Services, the City Solicitor and the Chief of Police be requested to work with some representatives of the squeegee kids and report back to the Emergency and Protective Services Committee with practical suggestions to regulate squeegee activities on our streets, such as designating locations for squeegee areas and/or times.

The Emergency and Protective Services Committee reports, for the information of Council, having received a report (July 9, 1998) from the Commissioner of Community and Neighbourhood Services to be considered by the Community and Neighbourhood Services Committee on July 16, 1998, regarding diversion options for youth involved in the Squeegee Trade.

The Emergency and Protective Services Committee submits the following report (June 13, 1998) from the City Solicitor:

Purpose:

To report as requested to the July 14, 1998 meeting of the Emergency and Protective Services Committee with respect to the proposal by Councillor Ila Bossons for by-laws to regulate panhandling and squeegee activities within the City of Toronto.

Funding Sources, Financial Implications and Impact Statement:

Not Applicable.

Recommendations:

It is recommended that City Council adopt EITHER Recommendation (1) A and B OR Recommendation (2) and/or Recommendation (3) as follows:

(1)A.No by-laws be enacted to regulate panhandling and squeegee activities within the City of Toronto until such time as the Province and/or the Federal government has provided the City and Police with the appropriate legislative authority to regulate these activities and effectively enforce such regulations; and

B.That the City Solicitor and the Chief of Police be requested to report back to your Committee concerning the status of any Provincial or Federal initiatives in this area;

OR

(2)If Council decides to enact a by-law to regulate panhandling activities within the City of Toronto, it authorize the City Solicitor to amend the by-laws of the former Metro and Area municipalities regulating highway obstructions to insert provisions in substantially the form attached as Appendix"A" to this report;

AND/OR

(3)If Council decides to enact a by-law to regulate squeegee activities within the City of Toronto, it authorize the City Solicitor to amend the appropriate by-laws of the former Metro and Area municipalities regulating highway obstructions to insert provisions in substantially the form attached as Appendix "B" to this report.

(4)That the appropriate City Officials be authorized and directed to take the necessary action to give effect to the above, including the introduction of any bills in Council.

Background:

At its meeting of June 16, 1998, your Committee had before it two communications from Councillor Ila Bossons recommending that City Council consider the passage of by-laws to regulate panhandling (similar to that in force in the City of Vancouver) and squeegee activities within the City of Toronto.

As a result, your Committee has requested that I report back on the legality and enforceability of such proposals, including any information with respect to the effect of the City of Vancouver By-law.

Comments and/or Discussion and/or Justification:

General Legal Issues:

(a)Statutory Authority:

There are no statutory provisions which provide express authority to municipalities in Ontario to pass by-laws for the purposes of regulating or prohibiting panhandling or squeegee activity. Therefore, any by-law to prohibit or regulate such activities would have to be authorized by the City's general authority in the Municipal Act to deal with public nuisances (ss.210(140)), the obstruction or encumbrance of the public highway (ss. 314(1)1) and the safety and welfare of the citizens of the municipality (s. 102). The tendency of the Courts to restrict municipal authority means that the legality of such a by-law, if challenged, is not without doubt. The City would need to make a strong case to show that actual obstruction, inconvenience or a threat to public safety does occur as a result of the prohibited activity and great care must be taken in crafting the by-law so as to target activity which can be demonstrated to lead to these problems.

(b)Charter of Rights and Freedoms:

Any by-law, even if within the jurisdiction of City Council to enact, could also be subject to attack under the Charter of Rights and Freedoms. One could envision possible arguments with respect to the infringement of any of the following: the right to peaceful assembly, freedom of expression, equality rights and/or the right to life, liberty and security of the person. The ability of the City to defend the by-law would depend upon its ability to justify it as a "reasonable limit prescribed by law" under section 1 of the Charter. The chances of making such an argument are greatly improved if City Council chooses to restrict squeegeeing or panhandling as little as possible so as to achieve the legal objectives of the by-law. In other words, the by-law should be clearly focussed on those activities which lead to obstruction and a threat to public safety and go no further.

A by-law to prohibit panhandlers who are not obstructing the sidewalk is not likely to be defensible in the absence of proof of actual obstruction of the public. Likewise, a restriction on squeegee activity should speak to the situation where such activity "obstructs" passage on the highway. It is therefore my recommendation that Council not enact a by-law which has the effect of indiscriminately clearing the streets of persons on the basis of who they are (i.e. panhandlers or squeegee kids) as opposed to their participation in activity which it is within the jurisdiction of Council to regulate or prohibit.

(c)Division of Powers Concern:

Given that Criminal Code offences do exist for loitering, mischief or intimidation, another concern is that any by-law could be attacked as an infringement of the Federal "criminal law" power and therefore outside of the jurisdiction of the municipality, as a "creature of the province", to enact. In other words, the by-law must relate to an area of Provincial (and municipal) jurisdiction. In attempting to regulate the use of the sidewalk to ensure an unobstructed use of the sidewalk, the municipal regulation must not make a prescribed activity a municipal by-law offence when it is already a criminal offence.

Proposed By-law Provisions:

Council currently has the ability to legislate with respect to obstructions of the street and arguably, panhandling and squeegee activity, in instances where it constitutes a public nuisance. However, as previously identified in this Report, there are several significant legal grounds under which any By-law amendments regulating panhandling activities may be challenged in the Courts. The draft By-law amendments attached as Schedules "A" and "B" to this Report, which I recommend be incorporated into the various streets by-laws of the former cities, borough and Metropolitan Toronto, if Council decides to enact such by-law amendments, attempt to address the limited legislative scope that Council has been given by the Province in this area and the potential legal challenges that such By-law amendments may face.

For instance, under the public nuisance authority, a By-law provision has been incorporated to prohibit persistent and unwelcomed panhandling. Canadian case law suggests that in order for an act or omission to be upheld as a public nuisance, the obstruction or inconvenience to the public must be so widespread that the community at large should bear the onus of resolving the problem. Arguably, persistent and unwelcomed panhandling falls within this test.

Certain specific types of locations have been identified in the proposed By-law amendments, as locations where panhandling may cause a greater public nuisance and obstruction of the street and sidewalk. At this time, financial institutions, automated teller machines and Toronto Transit Commission subway stations are identified as locations where no panhandling is permitted within 10 metres of the location. Subway stations are identified in the By-law amendments due to the large numbers of people that funnel into and exit these public transit centres and the obstructions to pedestrian movement that panhandlers can cause at these locations due to the volume of pedestrian traffic.

Practical Difficulties with Enforcement:

It should first be pointed out that the number of charges laid under the Winnipeg by-law (see below) suggests that these by-laws will not, in the absence of a continuous police presence, guarantee citizens freedom from the expressed feelings of intimidation and fear for personal safety. Given the personal circumstances of many of the individuals involved in these activities, I would suggest that it is not clear that the mere existence of a by-law will have any deterrent effect unless police are on hand to issue tickets or take whatever other action may be necessary in the circumstances. Unless the police are present at the time an incident occurs, the enforcement problem would be that on arrival of the police at the scene, the person alleged to have contravened the by-law has in all likelihood left and it would be very difficult to find and identify such person at a subsequent time.

In preparing this report, I have conferred with staff of the Metropolitan Police Service, who have indicated that they currently lack the tools (e.g. a power of arrest) to enforce effectively this type of by-law. The penalty presently provided for under the Provincial Offences Act for the violation of any by-law which might be passed by Council is the imposition of a fine which is unlikely to be effective in curbing this activity since the persons convicted are panhandling as they claim not to have sufficient money to support themselves. Consequently, a fine would probably lead to further panhandling in order to pay it.

Your Committee and City Council must therefore consider whether there is any utility in passing legislation which cannot be effectively enforced against persons because they:

(a)are not required to identify themselves and may not carry identification;

(b) may not show up for Court;

(c) likely have no fixed address; and

(d) likely have no resources with which to pay fines.

I am therefore recommending that no by-law be passed at this time and that the City Solicitor and the Chief of Police report back concerning the status of any Provincial or Federal initiatives in this area.

Request for Legislative Changes:

If Council decided to make a request for additional legislation to make the enforcement of these proposed by-law amendments more effective, the provincial government could be requested to enact legislation amending the Provincial Offences Act to authorize the police to arrest persons alleged to have contravened such municipal regulation. In addition, an express statutory duty for a person to identify himself or herself to a police officer who is investigating an alleged by-law contravention would enable the police to enforce effectively a by-law regulation such as the possible by-law amendments discussed in my report. Furthermore, an express power either through an amendment to the Municipal Act or other provincial legislation to remove the equipment used during squeegee activities would enable the police to effectively deal with an alleged breach of the proposed amendment set out in Appendix "B".

It should be noted that the Province is considering apparently legislation (the Neighbourhood Protection Act) which may assist in addressing these problems. However, I have been advised by staff of the Ministry of the Solicitor-General that specific details of the proposal are not available at this time.

Vancouver and Winnipeg By-laws:

With respect to Vancouver's by-law regulating panhandling, I have been advised that no charges have yet been laid under the by-law and that it has therefore not been tested either as to the municipality's authority to enact it, or its ability to withstand a challenge under the Charter of Rights and Freedoms. Legal staff have, however, indicated that they have been advised by Police that the existence of the regulation has, in the short period since it was enacted on April 30, 1998, had some deterrent effect on panhandlers when they are advised of its existence by Police. It is not clear at this time (given that the by-law is less than two months old) whether this will remain the case.

The Vancouver regulation is patterned after an earlier by-law passed by the City of Winnipeg on January 26, 1995. This by-law is now the subject of a legal challenge brought by the Public Interest Law Centre on behalf of a number of accused individuals. The challenge was initiated on January 22, 1998 and seeks to attack the Winnipeg by-law on the following grounds:

(a)It violates the Charter of Rights and Freedoms as follows:

-denial of equality rights (s. 15(1)

-denial of right to liberty and fundamental justice (s. 7)

-denial of freedom of expression (s. 2(b))

(b)It is beyond the jurisdiction of the City to enact as there is no legislative authority under the City of Winnipeg Act to pass the by-law as framed.

(c)It is beyond the jurisdiction of the City of Winnipeg to enact as the by-law is in essence a regulation in relation to criminal law, which is an area of Federal jurisdiction.

I have been advised that, pending the hearing of the court challenge, individuals continue to be charged in Winnipeg. Some individuals have either failed to appear in court or have pled guilty to the charges. Alternatively, many have essentially admitted a violation of the by-law and joined in the constitutional challenge on the basis that if the challenge is unsuccessful, convictions will be entered. Winnipeg Legal staff estimate that approximately 50-75 people have now joined in the court challenge, which is scheduled for six weeks of hearing, commencing mid-November, 1998 and going to mid-January, 1999.

Conclusions:

Despite attaching draft By-law amendments to this Report, it is recommended that no action be taken by Council to regulate or prohibit panhandling activities until such time as there are legislative amendments that authorize Council to legislate expressly in this area and, equally importantly, provide effective means of enforcement of such legislation.

Contact Name:

Edward Earle, Legal Services

392-7226

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SCHEDULE "A"

1.As used in this By-law, the following terms shall have the meanings indicated:

AUTOMATED TELLER MACHINE - A device linked to a financial institution's account records which is able to carry out transactions including, but not limited to, account transfers, deposits, withdrawals, balance inquiries and mortgage and loan payments.

PANHANDLE - To beg for or, without consideration, ask for money, donations, goods or other things of value whether by spoken, written or printed word or bodily gesture for one's self or for any other person.

STREET - A "highway" as defined in subsection 1(1) of the Municipal Act, including a highway that is a Metropolitan road, which is under the jurisdiction of the City of Toronto.

TRAFFIC CONTROL SIGNAL - A traffic control signal as defined under the Highway Traffic Act.

2.No person shall panhandle at any time on a street within 10 metres of:

(a)an entrance to a bank, credit union or trust company;

(b)an automated teller machine; or

(c)an entrance to a Toronto Transit Commission subway station.

3.No person shall panhandle from an occupant of a motor vehicle which is:

(a)parked;

(b)stopped at a traffic control signal; or

(c)standing temporarily for the purpose of loading or unloading.

4.No person shall panhandle so as to physically obstruct the passage of any person or motor vehicle on a street.

5.No person shall continue to panhandle at any time on a street from a person after that person has made a negative response.

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SCHEDULE "B"

1.No person shall obstruct the passage or operation of a motor vehicle on a street by approaching an operator or other occupant of the motor vehicle for the purpose of performing or offering to perform a service, in connection with the vehicle, with the exception of emergency services requested by the operator or other occupant of the vehicle.

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The Emergency and Protective Services Committee reports, for the information of Council, also having had before it during consideration of the foregoing matter the following:

(i)Copy of a report (July 9, 1998) from the Commissioner of Community and Neighbourhood Services being considered by the Community and Neighbourhood Services Committee on July 16, 1998, regarding diversion options for youth involved in the Squeegee Trade.

(ii)Petition (June 15, 1998) signed by seven Toronto Residents, in opposition to the enactment of by-laws to control begging; suggesting that, instead of enacting bylaws, the City provide support for adequate and appropriate places for shelter and food; and that consideration be given to providing transit passes to allow people to seek work and access medical and psychological care, if needed;

(iii)Communication (July 6, 1998) from Mr. Robert Saunderson, Chairman, Bloor-Yorkville Business Improvement Area, requesting that the Committee take urgent action to address the issue of homeless people and the issue of street people who have created a business from begging and panhandling; advising that as an initiative and to help those truly in need, his organization will undertake to meet with service agencies such as Covenant House to set up a collection system through their retail membership; and that he would be pleased to meet with the Committee to discuss initiatives that would resolve this situation;

(iv)Submission (July 3, 1998) from Mr. Sean P. Redmond and Mr. Michael Redmond, Redbros Enterprises, Burlington, advising that they have spent the last two years researching a compromise to the squeegee problem and requesting that the following proffers be given consideration as a viable solution:

(1)Licensing;

The practice of squeegeeing would fall under the complete control and responsibility of the Toronto Licensing Commission.

(2)Static Re-Usable "NO THANKS" Windshield Squeegee Sticker;

The purchase of the "NO THANKS" sticker be made by Toronto and made available to the general public; and

(v)Communication (July 13, 1998) from Ms. Carolyn Cleland, Toronto, in support of a by-law to control panhandling in the downtown and in the city in general.

(Copies of the foregoing documents were distributed with the agenda or at the meeting of the Emergency and Protective Services Committee and are on file in the Office of the City Clerk.)

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The following persons appeared before the Emergency and Protective Services Committee in connection with the foregoing matter:

-Mr. Alan Borovoy, General Counsel, Canadian Civil Liberties Association, Toronto;

-Mr. Gaétan Heroux, Ontario Coalition Against Poverty, Toronto;

-Ms. Sydney White, Toronto, who also filed a written submission with the Committee;

-Mr. Drew Sanders, Representing Lower Income Families, Toronto;

-Mr. Sean P. Redmond and Mr. Michael Redmond, Redbros Enterprises, Burlington;

-Ms. Audrey Fernie, Toronto;

-Ms. Denise Redwood, Old Cabbagetown BIA, Toronto;

-Mr. Michael Comstock, St. Lawrence BIA, Toronto;

-Ms. Lisa McGee, Bloor Yorkville BIA, Toronto;

-Mr. John H. Feeley, Yonge-Bloor Business Association, Toronto;

-Ms. Cheryl White, Queen West Community Health Centre, Toronto;

-Pièrre on behalf of Chris, who also filed a copy of his submission with the Committee;

-Raven, who also filed a copy of her submission with the Committee;

-Ms. Tara Darlow, Inner City Youth Link, Toronto;

-Colin;

-R.J.;

-Ms. Rebecca Houston, Beat the Street, Toronto;

-Mr. John Cuthbert, Toronto; and

-Deputy Police Chief Michael Boyd.

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The following Members of Council appeared before the Emergency and Protective Services Committee in connection with the foregoing matter:

-Councillor Chris Korwin-Kuczynski, High Park;

-Councillor Jack Layton, Don River;

-Councillor Olivia Chow, Downtown; and

-Councillor Ila Bossons, Midtown.