By Brad Yaeger on July 14, 2015.
Re: Case Summary and Comment – R v Banks, 2007 ONCA 19 (CanLII)
R v Banks was a constitutional challenge to a provision of the Safe Streets Act (SSA) (SO 1999, c. 8) and a provision of the Highway Traffic Act (HTA) (RSO 1990, c. H. 8). Eleven appellants were convicted of provincial offences under the legislation and sought to have their convictions set aside. Section 177(2) of the HTA makes it an offence to approach a motor vehicle for the purpose of offering or selling a commodity or service; section 3(2)(f) of the SSA makes it an offence to solicit a person in a stopped, standing or parked vehicle on a roadway.
At trial, the appellants admitted to the facts that established the offence. The trial judge upheld the constitutionality of the legislation, and their initial appeal to the Superior Court of Ontario was dismissed. The ONCA appeal was heard by Weiler, Armstrong and Juriansz JJA, and the Court dismissed the appeal and rejected all the appellants’ arguments.
The appellants submit that the legislation is unconstitutional for the following reasons:
It is criminal law and ultra vires the jurisdiction of the province of Ontario.
It infringes the right to free expression guaranteed by s. 2(b) of the Charter.
It infringes the right to security of the person contrary to s. 7 of the Charter.
It infringes the right to equality guaranteed by s. 15 of the Charter.
Scope of the appeal
The court narrowly interpreted the scope of the appeal to include only those provisions of the SSA and the HTA under which the appellants had been charged (at paras 9; 14-27). The appellants had attempted to challenge the constitutionality of the SSA in its entirety, but their arguments were rejected. They had relied on Borowski v Canada (1989 CanLII 123,  1 SCR 342) for the submission that the court had the discretion to consider and determine an important constitutional issue not withstanding that the appeal had become moot. The Court, however, found there to be no appeal before the court on the other provisions of the SSA, much less a moot one. It stated that “to make unnecessary pronouncements about the constitutionality of legislative provisions is an unwarranted exercise of judicial power” (at para 25).
The Judgment in Detail
A. The legislation is ultra vires
The appellants submitted that the SSA is criminal law in pith and substance, and criminal law is the exclusive jurisdiction of the Federal Parliament. The Court held that it is insufficient for the appellants to show that the SSA has a criminal law aspect. Since there is frequent overlap between federal and provincial spheres of competence, the appellants had the burden of proving either (1) that the provisions to not fall within provincial competence, or (2) that they are repugnant to federal legislation (at para 31).
Citing the provinces’ power to create offences under s. 92(15) of the Constitution Act 1867, the Court found that the existence of penal consequences has little bearing on whether the provincially enacted provisions are criminal law (at para 33). Citing the provinces power over “property and civil rights in the province” under s. 92(16) of the Constitution Act 1867, the Court held that provinces have jurisdiction to regulate the use of streets, sidewalks and public spaces by the public. Since the disputed provisions of the SSA and HTA “have the purpose of regulating the interaction of pedestrians and vehicles on public roadways,” both provisions were held to be “indisputably within provincial competence” (at para 34).
The appellants submitted that the provisions’ pith and substance must be analyzed based on the legal and practical effect of the legislation, whereby the purpose of the legislation is not the regulation of traffic but the criminalization of squeegeeing (at para 35). The appellants relied on a 2005 amendment to the SSA, which grants an exception to s. 3(2) for charitable organizations that are permitted to solicit by municipal by-law. The appellants submitted that this amendment confirms that that the purpose of the act was not a concern for traffic safety but to specifically target the type of solicitation engaged in by the appellants (at para 43). The Crown argued that since the appellants were convicted of their offences prior to the enactment of the amendment, the amendment was not admissible to discern the purpose of the original statute. The Court agreed with the Crown’s position, citing s. 17 of the Interpretation Act, RSO 1990, c. I. 11, which forecloses the use of a subsequent amendment in the interpretation of the original Act (at para 46). In any event, the Court held that the argument failed based on the double-aspect doctrine. As long as one aspect is the subject of provincial jurisdiction, the appellants have not met their burden (at paras 37; 42).
B. Section 7 of the Charter
The appellants submitted that (1) the SSA’s provision infringes section 7’s liberty interest because they face a possible penalty of imprisonment for a second offence; (2) that it infringes their security of the person because the prohibition on squeegeeing causes them serious psychological stress and denies them their main source of income; and (3) that this infringement is contrary to principles of fundamental justice because the provision is overbroad and vague.
The Court dismissed the appellants’ security of the person argument because while the legislation prohibits their chosen source of income, it does not deny them the right to obtain an income altogether (at para 81). The Court agreed that the appellants’ liberty interest was infringed, but dismissed the claims of vagueness and overbreadth, holding that the language of the provision “could not be clearer” (at para 87), and holding that the hypothetical scenarios proposed by the appellants were “absurd”, “improbable”, and “far-fetched” (at para 86).
C. Section 15 of the Charter
The appellants submitted that while the provisions do not draw a formal distinction between themselves and others, they claimed that the effect of the provisions in operation results in substantially differential treatment between the claimants and others, insofar as (1) the law is selectively enforced against the homeless and street-involved, and (2) that the effect of the provision on them is disproportionately burdensome (at para 92). They claimed that the differential treatment discriminates against them on the basis of their homelessness and poverty.
The Court dismissed the appellants’ first argument because the selective enforcement of the provision was not factually established at trial (at para 95). Further, the Court distinguished between discriminatory effects of the legislation and discrimination in the administration of the legislation. It held that the allegation of the appellants was the latter, not the former, and the remedy would be against the police officers, and has no effect on the constitutionality of the legislation (at para 96).
The Court also dismissed the second argument, citing it’s conclusion in the section 7 holding that the legislation did not infringe the appellant’s ability to earn income in any meaningful, fundamental way (at para 97).
Finally, the court held that even if the appellants had established differential treatment under the impugned provisions, they did not establish an appropriate analogous ground, since “begging” is an activity, not a “personal characteristic” (at para 99). The Court did not regard the “activity of begging to be an immutable or constructively immutable characteristic that can only be changed at great personal cost” (at para 99). Poverty itself could not be a ground of discrimination, because it is an amorphous characteristic and is not “discrete and insular” (at para 104).
D. Section 2(b) of the Charter
The Court held that the provisions did infringe the appellants’ freedom of expression, but that the infringement was justified under section 1.
The Court applied the three-part analytical framework from Montreal (City) v 2952-1366 Quebec Inc, 2005 SCC 62 CanLII, to determine whether there was a 2(b) violation. The test inquires whether (1) the speech has expressive content, (2) if so, whether the method or location of the expression removes the protection, and (3) if not, whether the purpose or effect of the law is to violate the protected speech (at para 109). The Court answered all questions in the affirmative.
Under section 1, the Court held that the purpose of regulating the interactions of pedestrians and vehicles on roadways was important enough to warrant a 2(b) violation (at para 129). It held that the prohibition was rationally connected to the objective (at para 130). It also held that the expression was minimally impaired, despite the blanket prohibition on squeegeeing, insofar as “they are left with many alternatives … to the extent that they may wish to provide a service in exchange for donations” (at para 131). Finally, it held that the benefits of the legislation (promoting public safety, efficient circulation, and enjoyment of the roadway by the public) outweighed its deleterious effects (at para 132).
Although the R v Banks decision is a blow to advocates for homeless and street-involved communities in Ontario, it is important not to overstate the implications of the decision. The limited scope of the appeal means that the other provisions of the SSA remain unchallenged. The specific purpose of s. 3(2)(f), upon which the ONCA drew fairly heavily in its judgment, are inapplicable to many of the SSA’s other provisions. For example, the alleged ‘traffic safety concerns’ at the heart of the Court’s interpretation of s. 3(2)(f) would not apply to provisions that regulate solicitation on the sidewalk and pose a relatively negligible threat to public safety. Those ‘traffic safety concerns’ also played a particularly important role in the Court’s section 1 analysis of the 2(b) Charter challenge. Absent those safety concerns, it is reasonable to assume that the Court’s measurement of the provision’s benefits against its deleterious effects may be altered.
The Court’s conclusion about the purpose of the SSA in its ultra vires analysis might also vulnerable, reinforced as it was by the Court’s decision not to consider the 2005 amendment to the Act. In a future challenge, that amendment would be admissible and the court could be compelled to revisit its conclusion about the SSA’s purpose not specifically targeting the homeless.