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The golden rule of public spaces

|Written By Michelle Mann

Public space belongs to all citizens, though that universality is inadequately protected by legal constructs. Laws and regulations governing our public spaces are all too frequently rooted in rights to exclude, rather than citizen rights to inclusion.

Social Justice by Michelle Mann

A case in point: the recent passage of a motion by Toronto City Council at the behest of Toronto councillor and mayoral candidate Jane Pitfield, calling for the city to consider a ban on panhandling (otherwise referred to in Orwellian doublespeak as a "quality of life" bylaw).

Whose quality of life, one well might ask, for it could not be more apparent that the quality of life of some citizens is considered irrelevant when others are made to feel uncomfortable. If we could only hide the poor and homeless, they would cease to exist, so why not ban their public presence altogether?

Of course, the see-no-evil approach to poverty doesn't work, with even New York's broken windows crime philosophy now widely debunked.

Pitfield's proposal to consider a new bylaw banning panhandling has deservedly earned her the anger of many anti-poverty activists, including calls for her to step down from Toronto's homeless advisory committee. However, as noted by Pitfield, being co-chairperson of the homeless advocacy committee is completely unrelated to the pandhandling issue.

Much like that justification is completely unrelated to logic.

That is not to say that everyone who panhandles is homeless, or that everyone who is homeless panhandles, as panhandling may keep a few more people in some sort of inadequate housing.

In fact, if Pitfield's role is to advocate for more homelessness, the proposed ban just might do the trick.

Pitfield, in pitting herself pitilessly against the poor, doesn't want to look soft as a mayoral candidate. And she is of course only following precedent.

The proposed city ban on panhandling comes at an interesting time, with a constitutional challenge to the Safe Streets Act of 1999 pending in the Ontario Court of Appeal. The provincial law, brought in during Mike Harris' tenure, made roadside solicitation and "aggressive" panhandling in public places illegal across the province.

It should, however, be noted that it is the McGuinty Liberal government that continues to defend it, amidst inadequate even for subsistence rates of social assistance and shortages of affordable housing.

The challengers lost at trial and at the Ontario Superior Court. They argue that the anti-panhandling provisions are an unconstitutional infringement of their Charter-protected equality, freedom of expression and life, liberty, and security of the person rights.

Ontario is far from the only jurisdiction to seek to obliterate visible poverty.  Calgary, Winnipeg, and Vancouver all passed municipal panhandling bylaws, with Calgary having gone so far as to attempt, unsuccessfully, to require panhandlers to wear photo identification.

In other words, open season on the poor. They may be one of the last groups in society against whom discrimination and oppression is not only tolerated, but mandated by our politicians.

As noted by the French author and Nobel literature prize winner, Anatole France, "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Fortunately, we have rejected a formal equality approach to the law and instead taken to examining its impact on substantive equality and on certain groups.

Or have we?

Laws that seek to suppress the face and voice of poverty on our streets can also be contrasted with corporate free speech rights in public spaces, so amply protected.

A survey of urbanites might just find that many of us are more offended by the corporate siege we face on our streets and in our public transportation systems daily, than we are by being asked for spare change.

Yet when municipalities or community groups try to fend off corporate usurpation of public spaces, they are met with the free speech and expression Charter-protected rights of corporate interests (think Vann Niagara Ltd. v. Oakville at the Supreme Court).

We certainly would get onto slippery slopes were we to start demarcating which individuals and entities are entitled to their s. 2(b) Charter rights, much as I resent the branding of public spaces and my own inadvertent role as empty vessel waiting to be filled up with commercial needs.

Yet one cannot help but notice that citizen rights to unassailed public spaces are recognized when the alleged assailants are the poor, less so when they are wealthy corporations.

It is reminiscent of the golden rule: he who has the gold makes the rules.

Panhandlers and squeegee kids don't have the gold, and they don't make the rules. What they do have is the same inherent right to our public space as the rest of us, and rights to freedom of expression at least equal to those of corporate interests.

Michelle Mann is a Toronto-based lawyer, freelance writer, and consultant. Check out her blog at

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