» ‘This is all types of bad’

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This article was published 13/07/2023 (800 days ago), so information in it may no longer be current.

A new “Community Standards Bylaw” that may be passed as early as next week contains parts that may unjustly target vulnerable people and could be open to constitutional challenge, warns a civil litigator.

The bylaw, expected to receive final reading by city council next Monday, includes provisions on panhandling and loitering. But vague definitions and certain provisions in the proposed legislation has experts raising concerns about the potential for police to unfairly target the city’s homeless.

“The intended objective is laudable, but its implication becomes more challenging in practice,” Toronto-based civil litigator Stephany Mandin told the Sun. “I understand the idea of unobstructed, safe streets, but the impact of a lot of this legislation is that it ends up criminalizing those most in need.”

Former Brandon Police Service Chief Wayne Balcaen — who was police chief at the time that the new bylaw was drafted and first presented to council, and is listed as one of its authors — said earlier this year the new bylaw consolidates the existing nuisance and derelict vehicle bylaws. Balcaen said offenders wouldn’t be arrested or detained, but would face fines for breaching the proposed bylaw.

The City of Brandon’s lawyer, Rex Osivwemu, said the proposed bylaw is about the health and safety of the city’s residents.

“People could have personal issues [with the bylaw], that’s fine,” Osivwemu said. “But so long as we’re within the law, where we’re enacting this bylaw within the powers given to us by the Municipal Act, by the Constitution, we’re okay.”

However, Mandin says the language in the proposed bylaw makes it open to Charter of Rights and Freedoms challenges like those launched against similar legislation in Ontario, while a Brandon sociologist has concerns that vague definitions of offences in the bylaw would give police too much discretionary power.

The proposed bylaw contains new sections on graffiti, loitering, and panhandling, with loitering and panhandling receiving definitions that aren’t present in the current bylaw. And Brandon University sociology professor, Christopher Schneider, who has written extensively on policing, says he’s concerned about the bylaw’s broad language, including the definition of loitering.

Loitering, which is mentioned but not defined in the current nuisance bylaw, is defined in the proposed bylaw as “to stand around or move slowly about without apparent purpose or action.” Schneider said such vague definitions included in the proposed bylaw expand police officers’ discretionary powers, which makes policing more personal and subjective.

“It affirms a highly personalized view of policing, and basically allows police to choose at any time and any person at any time — depending on how it is their feeling — to police,” Schneider told the Sun in an interview. “I think it absolutely opens up possibilities and spaces for police to then target socially undesirable or unwanted people, i.e., unhoused people.”

Schneider also said that when police have more discretionary power, it makes police oversight, either by the public or a third party, more difficult.

“This is all types of bad, any which way you slice this bylaw,” he said.

The definitions in the bylaw don’t provide an objective measure for police to point to, he said, using the speed limit as an example of a law that contains an objective measure that police can use to prove an offence has been committed.

“What this (proposed bylaw) does is it turns policing into a highly discretional and personalized activity and that’s absolutely not what policing is supposed to be,” Schneider said.

Though it may target vulnernable people, the professor said that everyone should be concerned about the proposed section on “public behaviour,” which lays out parameters around littering and public offences, such as being intoxicated in public or swearing.

“The police are not supposed to be policing people’s behaviour,” he said.

As a Toronto-based civil litigation lawyer, Mandin is familiar with Ontario panhandling laws, contained in that province’s Safe Streets Act, which was enacted in 1999 and has faced challenges under the Charter of Rights and Freedoms. She said that the laws are similar to Brandon’s proposed bylaw, and historically such laws have tended to target vulnerable people.

“As evidenced in other jurisdictions, a homeless person panhandling on the street is more likely to end up being targeted,” she said.

She noted that some of the offences in the proposed Brandon bylaw are already covered by Criminal Code laws against harassment, trespassing, verbal, and physical assault.

“Loitering, just being somewhere and putting out your hand and asking for money,” she said. “What is so offensive about that?”

Public intoxication, which is listed on the proposed bylaw’s public offences section, is dealt with under the province’s Intoxicated Person Detention Act.

In 1994, the Supreme Court of Canada struck down much of the vagrancy laws in the Criminal Code, which included provisions about people loitering near playgrounds, public parks and bathing areas, for being overly broad and infringing on Charter rights. (Vagrancy laws were removed from the Code in 2019).

According to an article published in the Globe and Mail in May, federal Public Safety Minister Marco Mendicino is considering adding vagrancy to a list of “historically unjust offences” that people can apply to have struck from their criminal records.

A Charter challenge was previously brought against Ontario’s Safe Streets Act in 2001 but was unsuccessful after the Ontario Court of Appeal ruled that, while the law breached the applicants’ constitutional rights to freedom of expression, the infringement was justifiable in the interest of public safety.

But Mandin said another Charter challenge, recently brought in 2017 against the act by a Toronto legal clinic, has a better chance of success because of an amendment to the Act in 2005, which makes an exemption for people asking for donations on behalf of registered charities.

“If I’m soliciting on behalf or a registered charity for people in poverty, I can ask you for change,” Mandin explained. “But if somebody next to me is an actual person in poverty, they cannot ask you for change.”

This exception, which allows people to solicit if they are asking for donations on behalf of charities but does not allow individuals to ask for donations for themselves, is included in Brandon’s proposed bylaw too.

Because the legislation makes this distinction, Mandin said, there is an opportunity for an argument to be made that the law violates Section 15 equality rights under the Charter, which the legal group in Toronto is using as part of its Charter challenge to the Ontario law.

“Similar arguments have recently been advanced in a 2017 challenge to the Ontario Safe Street Act, namely, that there’s an arbitrary distinction drawn between those who can solicit and those who can’t and drawing the distinction only serves to further marginalize and criminalize those in poverty,” Mandin said.

Despite that,Mandin says that even if a constitutional challenge is brought and court finds a breach, the court still may find that the Charter infringement is justifiable.

That fact is something that Osivwemu, as the City of Brandon’s lawyer, said is important to keep in mind.

He said that he is aware of the existing challenge to Ontario’s law, but concerns with Brandon’s proposed bylaw may not necessarily meet the standard of a Charter challenge.

“What you’re looking at is the overall interest — the health and safety of the residents and citizens of this city, that’s paramount,” Osivwemu said.

The Sun reached out to Balcaen for comment but did not receive a response. However, at a police board meeting in June, when asked if the BPS had looked at the constitutionality of stopping people for loitering, Balcaen said that the city has always had a loitering bylaw.

“We don’t write these bylaws or put them in there so that we can breach people’s Charter [rights], that would come first and foremost,” Balcaen told the Sun at the time.

Mandin also agrees with Schneider that the definition of loitering is broad, as a group of teenagers trick or treating in a public space could arguably fall under it, she said.

“I understand that there’s certain activity that you would like to protect against, but then where does that line stop and who gets ensnared by the legislation?” she said.

The Sun made multiple requests for an interview with BPS Acting Police Chief Randy Lewis but he did not respond by press time on Wednesday.

And while it remains to been seen how enforcement of the bylaw provision will play out, Mandin said that looking at how the legislation has been applied in other jurisdictions, the group of teenagers are not the ones who would be fighting the tickets — it would be the city’s most vulnerable, who have the fewest resources to navigate the legal system or fight back, which she said would further entrench them into the cycle of poverty.

“Rather than our already scarce government resources, police time, [and] judicial resources being allocated towards ticketing and sanctioning those already most marginalized,” Mandin said, “we may want to consider reallocating those resources in a way that achieves the public safety component without further impoverishing these individuals.”

Fines for newly defined offences in the proposed Brandon bylaw, including loitering and panhandling, have yet to be determined.

» gmortfield@brandonsun.com

» Twitter: @geena_mortfield