|Peter Rosenthal says he believes a constitutional challenge of the province’s Safe Streets Act could be successful due to a shift in the legal landscape.Photo: Robin Kuniski|
Lawyers say the act criminalizes homeless people and that proceedings concerning Safe Streets Act tickets unnecessarily suck up valuable time and resources in provincial courts, adding to delays.
“There’s been a lot of talk about the courts being overcrowded and not enough judges or facilities and so on, and yet they spend thousands and thousands of dollars and hours of court time oppressing poor people by tickets under the Safe Streets Act,” says Peter Rosenthal, the lawyer who will be representing the clinic on the challenge.
The Fair Change clinic works with homeless people who have been issued large numbers of tickets under the act, sometimes amounting to thousands of dollars in fines over the years. The provincial government passed the act in 1999 in an attempt to get rid of “squeegee kids,” but lawyers say the legislation has unnecessarily punished people suffering with mental health issues.
“Many people who are forced to beg in this city and province are people with mental health issues in particular,” Rosenthal says.
“So it’s discrimination on the basis of mental health and other disabilities.”
Rosenthal was one of the lawyers who worked on an unsuccessful constitutional challenge to the Safe Streets Act in R. v. Banks, which was dismissed by the Ontario Court of Appeal in 2007.
In that case, Rosenthal represented 13 individuals who had been issued tickets under the Safe Streets Act. The Supreme Court of Canada refused to grant leave to the application after the Court of Appeal dismissed it.
But Rosenthal says he is confident a new challenge to the act could be successful because of how the legal landscape has shifted since the last challenge was initiated.
He says one such shift that could help the new challenge is that the interpretation of s. 15 of the Charter has changed several times in the years since.
The section holds that all individuals have equal benefit and protection under the law without discrimination.
Rosenthal noted the Supreme Court’s 2013 decision in Canada (Attorney General) v. Bedford, in which the court found that it could revisit a previous decision and overturn it if new legal issues have been raised as the result of significant developments in law “or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.”
Rosenthal says that in Banks, the Court of Appeal looked at very narrow issues.
He says the fact that the new challenge is on behalf of an organization will mean the court will have to look at the act as a whole and not just the facts of individual cases as it did in Banks.
There is also a lot more information on the effects of the act that has been gathered since its early days.
“We have the benefit of hindsight now of seeing what’s actually happened and what’s actually happened is it hasn’t had any real effect on behaviour. It’s kept people from getting off the streets and it’s costing the province a lot of money,” says Daniel Ciarabellini, the student director of Fair Change.
Ciarabellini says that ticketing under the act has increased steadily over the years since the act’s early days.
A 2011 report conducted by professors at the University of Guelph and York University found that there were 15,324 Safe Streets Act charges laid that year in Toronto and that the number of tickets issued had risen exponentially over the previous 10 years.
Before the constitutional challenge is launched, Rosenthal says he intends to request a meeting with Attorney General Yasir Naqvi’s office to call on the provincial government to repeal the Safe Streets Act.
Rosenthal notes that the Ontario Liberal Party was against the Safe Streets Act while in opposition during the government of former premier Mike Harris, but it has not repealed it since coming to power in 2003.
Clare Graham, a spokeswoman for Naqvi, said that “keeping our streets safe and secure” is a top priority for the government.
“The Ministry is open to hearing from stakeholders about the impact of the Safe Streets Act and will make any decisions based on evidence,” she said in an email.
The Fair Change clinic, which is staffed by Osgoode Hall Law School students under the supervision of lawyers, is currently conducting research to prepare the legal challenge, which Ciarabellini says he expects to file this summer.
The clinic recently scored a small but significant victory in fighting Safe Streets Act tickets by reaching an agreement with the Old City Hall courthouse in downtown Toronto to mass appeal tickets with a single set of paperwork.
Applicants previously had to submit multiple sets of forms for each ticket, but the agreement made what was once a very time-consuming process much more efficient, lawyers say.
The Fair Change clinic is now looking to get to the root of its clients’ legal woes.
The issue is a personal one for Ciarabellini, whose father has struggled with alcoholism and mental illness in the past.
Ciarabellini says he told himself he would bring down the panhandling legislation when he first started volunteering for the clinic at the beginning of law school.
Just a couple of years later, he is looking to follow through on that commitment.
“They have to be able to do something to not only continue to survive but hopefully escape life on the street,” he says.
“That inability to legally panhandle is a significant detriment both to their security of person, bodily and psychological integrity, as well as their freedom to make any meaningful choices to improve their lot in life.”