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Second time might be the charm for challenge of panhandling law: Mandin

A recently launched constitutional challenge to Ontario’s panhandling law has a better chance of success than a failed attempt more than a decade ago, says Toronto civil litigator Stephany Mandin.

“The landscape has changed. We now have the benefit of almost two decades of evidence on the impact and the effects of the Safe Streets Act that was not available at the time,” says Mandin, founder of Mandin Law.

The Safe Streets Act, enacted by the former premier Mike Harris' government in 1999 in response to concerns over 'squeegeeing,' has been shown to be extremely oppressive in the way it criminalizes poverty, she tells AdvocateDaily.com.

The objectives of the law appear to be aimed at public safety and preventing aggressive solicitation, says Mandin, “but because of its broad nature, the impact of the Act severely punishes those most in need of communicating for funds or assistance.”

In June, Toronto’s Fair Change Community Legal Clinic launched a constitutional challenge of the Safe Streets Act in Ontario Superior Court. The clinic’s executive director, Joanna Nefs, told a news conference that the Act is “the worst kind of law” that disproportionately impacts people with mental health and addiction issues, the Toronto Star reports.

A previous challenge to the law, launched in 2001 by 13 people who had been charged for squeegeeing or similar offences, was ultimately unsuccessful at the Ontario Court of Appeal in 2007. The court ruled that while the law breached their constitutional rights to freedom of expression, the infringement was justifiable in the interest of public safety.

The new constitutional challenge has several advantages over the old, Mandin says.

First, it’s broader in focus than the original case, which concentrated largely on squeegeeing, she says.

Since then, evidence has accumulated about the Act’s broad effects on people forced to beg for money to survive, she says.

“We now have the benefit of 16 years of seeing the impact of this Act. Who does it target? How does it affect them? How does it impact someone's ability to take themselves out of poverty? This Act effectively criminalizes the poor." 

One of the strongest arguments in favour of the new constitutional challenge is that the Ontario Liberal government amended the Act in 2005 to carve out an exemption for people soliciting donations on behalf of registered charities, says Mandin.

This has created an arbitrary distinction between the types of people soliciting for money, she adds.

“You can solicit. You can panhandle. You can even, arguably, be aggressive in your solicitation if you’re a registered charity, but you cannot do any of those things if you are the individual in need of direct assistance," she says. "I can’t ask for my own cup of coffee but someone can ask on my behalf.”

This, Mandin argues, is where s. 15, the equality rights provision in the Charter, comes into play. Section 15 is intended to ensure the government does not undermine the human dignity of its citizens when it enacts laws, she says.

A disproportionate number of poor people are visible minorities, aboriginals and those suffering from mental or physical disabilities or addiction, and they are all protected by s. 15, she says.

“The law should, at a minimum, be equally applied to everyone and aggressive panhandling ought to be more narrowly and clearly defined,” she says.

Other constitutional challenges have failed in the past, only to succeed when revisited years later, she points out.

For instance, Sue Rodriguez lost her battle at the Supreme Court to decriminalize assisted suicide in 1993. But 22 years later, the same court reversed itself in another case and overturned the ban, reports the Star.

The Charter is a “living tree” that is constantly evolving and open to reinterpretation, Mandin says.

Another advantage the claimants have in their new Charter challenge is that the political and social climate has become more favourable, she says, pointing to the Liberal government's expressed commitment to ameliorate poverty.

That’s a good sign, she says.

“Rather than trying to protect individuals walking down the street from people panhandling, maybe we need to address the issue that there is an overwhelming number of people who can’t provide for themselves. That is a more pressing objective, in my opinion,” says Mandin.

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