Legal clinic commences Safe Streets Act challenge

 Joanna Nefs, the executive director of Fair Change, and lawyer Peter Rosenthal announce a constitutional challenge of the Safe Streets Act.
Joanna Nefs, the executive director of Fair Change, and lawyer Peter Rosenthal announce a constitutional challenge of the Safe Streets Act.

A Toronto legal clinic that helps homeless people fight panhandling tickets has launched a constitutional challenge of the Safe Streets Act.

The Fair Change Community Services legal clinic announced Thursday morning it has filed a challenge in Ontario Superior Court to take a run at the legislation, which bans aggressive panhandling. Lawyers and advocates have criticized the act for wasting court resources and discriminating against the poor, the homeless and those suffering from mental illness.

“The Safe Streets Act criminalizes very innocuous panhandling — the kind of panhandling that has been going on in cities for years,” said Peter Rosenthal, one of the lawyers working on the challenge.

“…If the money spent attacking street people was instead spent on providing for them, there would be much less panhandling.”

The clinic’s challenge will argue that the act violates a number of sections of the Charter, including freedom of expression.

Rosenthal was involved in a previous challenge of the act in R. v. Banks, which was dismissed in 2007, but says much has changed that makes success more likely this time around.

He says he will be bringing different arguments in this challenge when it comes to s. 15 of the Charter, which holds that everyone has equal benefit and protection under the law without discrimination.

He says there needs to be proof that the act discriminates against an analogous group in order to show that there has been a violation of s. 15. In the earlier challenge, Rosenthal says he argued that people who suffered extreme poverty and have to beg are an analogous group, but the courts disagreed.

This time, Rosenthal will argue that the act is discriminatory against three different analogous groups — indigenous people, those with mental health issues and people who suffer with addiction.

“We have a very different s. 15 argument then we did 15 years ago,” he says.

He says the facts of the case are also different than the earlier challenge. This challenge will also have the benefit of research that has been conducted over the year that advocates say shows the act does more harm than good.

The government of former premier Mike Harris passed the Safe Streets Act in 1999 in attempt to get rid of “squeegee kids.” Lawyers and advocates say the legislation has since led to homeless people and panhandlers often racking up thousands of dollars in fines with no way to pay the penalties.

The Fair Change clinic, which is staffed by Osgoode Hall Law School students under the supervision of lawyers, has helped people appeal their tickets, often getting penalties reduced or thrown out altogether.

Lawyers representing a number of different legal organizations and clinics attended the announcement Thursday to voice their support of the challenge, including Human Rights Commissioner Renu Mandhane, who wrote a letter to attorney general Yasir Naqvi calling on the government to repeal the Safe Streets Act.

“Laws that stigmatize and criminalize people who are homeless make it harder for them to secure stable housing, employment or access with education, [and] aren’t consistent with the government’s aspirations or with the Human Rights Code,” she said at the announcement.

“The Safe Streets Act unfortunately is one of these laws. Poverty is a human rights issue because it isn’t experienced equally.”

Rosenthal says that if the government repeals the Safe Streets Act the clinic will be dropping its challenge. Rosenthal called on the government to support a bill introduced by NDP MPP Cheri DiNovo that would repeal the act and has first passed reading.

Emilie Smith, a spokeswoman for the Ministry of the Attorney General, did not answer a question concerning whether the government would consider supporting DiNovo’s bill, and declined to comment on the challenge as the government is “currently reviewing the notice of application.”

June 23, 3:53 p.m. Updated to reflect comment from Ministry of Attorney General’s office.

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