When is panhandling illegal?

Photo: Contributed - (Photo: Flickr user, jeffreyjones)

With summer coming, there will soon be more pedestrian traffic. With increased pedestrian traffic, there will inevitably be more ‘panhandling’. This column attempts to briefly describe when panhandling becomes illegal.

In 2004, the British Columbia Legislature enacted the Safe Streets Act, S.B.C. 2004, c. 75 (“SSA”). The legislation was intended to prohibit the following two forms for panhandling: 1) aggressive solicitation; and 2) captive audience solicitation.

‘Aggressive solicitation’ occurs when a reasonable person, who is being solicited, becomes concerned for his/her safety or security. The fine for this offence is $115.00.

To illustrate, aggressive solicitation may occur when a solicited person has their safe passage blocked, is being followed, is receiving rude comments or gestures, or is being subjected to physical/verbal threats (all during the solicitation).

‘Captive Audience Solicitation’ occurs when a person is solicited in one of the captive audience situations that are listed in section 3 of the SSA. For those who don’t know, a captive audience situation generally refers to when a person has no choice but to attend/stand in a particular location. The fine for this offence is $86.00.

For ease of reference (and without requiring readers to refer to section 3 the SSA), it can be illegal to solicit people who are waiting at a bus stop/taxi stand, riding on or getting off a bus, waiting to use or using a bank machine, waiting to use or using a public toilet, getting in or out of a vehicle (such as in a parking lot), or sitting inside a parked vehicle on a roadway, which is seemingly directed at “squeegee kids”.

With that being said, no captive audience solicitation offence occurs if the person soliciting is more than 5 meters away from the bank machine, bus stop, pay phone, or public toilet. Also, no offence occurs if the person soliciting within 5 meters of a bank machine has the express approval/acceptance of the person who owns the property where the bank machine is located.

Some groups are concerned that the SSA is bad law. For instance, the B.C. Civil Liberties Association expressed concerns that the SSA would be applied in an inappropriate manner, would unfairly target vulnerable groups, and would criminalize poverty and homelessness.

Challenges to this legislation, however, will not likely be successful.

In 2007, Ontario’s Safe Streets Act, which is virtually identical to B.C.’s SSA, was held to be valid by the Ontario Court of Appeal’s decision in R. v. Banks, 2007 ONCA 19. Also, in the 2002 B.C. Supreme Court decision of Federated Anti-Poverty Groups of B.C. v. Vancouver (City), 2002 BCSC 105, a bylaw that prohibits particular forms of panhandling (which is similar in substance to the SSA) was held to be valid.

In both cases, it was argued that the laws infringed various Charter rights. However, such arguments were unsuccessful. In the B.C. case, it was argued that the bylaw violates the freedom of expression (as well as discriminates against those living in poverty). While the Court held that panhandling is a form of expression used by those in poverty, panhandling that is aggressive or takes place in a captive audience situation does not fall within that freedom (and can be prohibited).

On the street, it has been reported that some police are discriminatory (against those living in poverty) in the law’s application. I don’t have any evidence of such discrimination, but such accusations are not that far-fetched; I can’t imagine this law being applied to Girl Guides selling cookies near a bus stop. It has also been reported that some police will issue tickets to panhandlers not technically breaking the law. As a result, it has been recommended by assistance groups (to those living in poverty) that panhandlers carry a copy of the SSA.

Whatever your position on this legislation, it behooves British Columbians to assist those living in poverty. Eventually, if we are fortunate, no one will need to panhandle to acquire the necessities of life.

This article is written by or on behalf of an outsourced columnist and does not necessarily reflect the views of Castanet.