Why do governments criminalize the homeless?

This question came to us from Mike D. through our latest survey.

I’m glad that this question is being asked as it touches on a number of shifts in public policy that restrict the daily lives of homeless people including subsistence strategies such as panhandling, squeegeeing, and sleeping in public spaces. Often, the logic behind these laws contribute to the marginalization and stigmatization of people experiencing homelessness under the pretext of public safety when in reality, these laws have very little to do with protecting the public from the supposed “dangers” that the homeless population bring on society.

Anti-homelessness laws are not a new phenomenon; they can be traced back to old English vagrancy laws. Individuals experiencing homelessness are criminalized in specific ways, from creating anti-homelessness laws, increasing surveillance by police, increasing likelihood of being imprisoned, and discharging people from custody into homelessness. A study of homeless adults in Toronto revealed that while 73 percent had a least one arrest, of those who received a custodial sentence, almost all were sentenced to less than six months. This suggests that people experiencing homelessness are being convicted for minor offences at disproportionate rates. It is important to note that while the homeless population have a high rate of interaction with the criminal justice system, much of it can be attributed to the public nature of homeless life. Research shows that homeless individuals are much more likely to be fined than those who are housed, and even incarcerated for causing a nuisance, public intoxication, loitering, or urinating in public. (Chesnay, Bellow and Sylvestre, 2013; O’Grady, Gaetz and Buccieri 2011, 2013). Marie-Ève Sylvestre’s research on Montreal police reveals that they specifically target the homeless population for these behaviours rather than the rowdy crowds of bar patrons on Saturday nights.

Another pressing problem is the number of people being discharged from corrections into homelessness. The lack of discharge planning and resources for those leaving correctional facilities to support them finding safe and affordable housing makes it exceptionally difficult to abstain from criminal activity. As we shift towards the prevention of homelessness, systems based prevention for individuals transitioning from correctional facilities will be key to stopping the cycle of homelessness and criminalization.

As I explore anti-homelessness laws below it is important to keep in mind that those experiencing homelessness are significantly more likely to be victims of crime than housed individuals. Youth and those who are mentally ill are among those at highest risk of experiencing violent crime. In turn, risk of victimization and the trauma that comes with being a victim of crime can lead to criminal behaviour as a form of protection.

In our modern era, geographers like Don Mitchell have highlighted the links between the criminalization of homelessness and the debates around the privatization of public spaces in cities. Mitchell argues that the purpose of anti-homeless laws is to dispossess the homeless from their right to public spaces in order to privatized these spaces as a way of fueling the economy. While this may sound good for businesses, people experiencing homelessness who use public spaces for their survival are usually not provided with any sorts of suitable alternatives nor further supports than what is already made available. Mitchell calls this phenomenon the “annihilation of space by law”. In order to better illustrate this, I’ll use Canadian examples to elaborate on his point but first I’ll discuss what is meant by anti-homelessness laws.

What are “anti-homelessness” laws?

Mitchell describes anti-homelessness laws as legislation intended to outlaw everything from sleeping outdoors to sitting on the sidewalks to restricting food donations. Such laws were enacted throughout the United States in the 1990s as a response to the explosion of street populations that emerged out of the rise of unemployment and deep financial cuts made to social benefits. These laws resulted in the “annihilation” of public spaces that many within the homeless population rely on for their very own existence. Advocates argue that anti-homelessness laws do very little to address the root causes of homelessness and instead intensify the marginalization of this population. Unfortunately, this draconian legal approach has also been adopted by a number of Canadian municipalities and provinces in order to control how public spaces are used while keeping specific people out. Below are a few examples:

Media Folder: 

1. City of Kelowna

As of December 2016, the homeless in Kelowna are banned from sitting or sleeping on sidewalks or otherwise face a $50 fine.  The new regulation expanded on a previous bylaw that restricted  sleeping or sitting on sidewalks between 8am to 9pm (regular business hours). According to the public official, the new bylaw will keep the public safe and businesses from losing customer.

2. Ontario Safe Streets Act

The Ontario Safe Streets Act came into effect in 2000 and was designed to address the growing number of squeegee kids on the streets of downtown Toronto. The legislation prohibits “aggressive” panhandling and anyone attempting, approaching or stopping a motor vehicle for the purpose of offering a service or commodity. However, there are exceptions to the law such as stopping vehicles for charitable purposes is permissible which emphasizes the classist nature of the law as truly being “anti-homeless” rather than being “anti-solicitation”. It also prohibits panhandling of any kind near a bank machine, bus or subway stop, bathroom or parking lot – virtually eliminating urban spaces (often public) as sites to legally panhandle. Despite no evidence of this, the City of Toronto argued that squeegee kids were contributing to urban decay and crime by endangering drivers while negatively impacting tourism and retail businesses.  

3. British Columbia’s Assistance to Shelter Act

The Assistance to Shelter Act was enacted in 2009 in order to enable the police to take people experiencing homelessness into a shelter during extreme weather. While this may seem like a good idea, some advocates argued that the new law was conveniently passed months before the 2010 Winter Olympics in Vancouver as a way to “clear street people” months prior to tourists arriving.

Anti-homelessness laws such as the Ontario Safe Streets Act and the BC Safe Streets Act (2004) are arguably counter-productive as they force homeless people to seek out other, less public and less safe spaces and as a result are more vulnerable to victimization and may be harder to reach out to in terms of service provision. For those unable to pay their fines, imprisonment is a reality which could have an adverse effect on their social benefits. Many homeless simply do not have the means to pay fines (hence survival strategies such as panhandling in the first place).  It cost the Toronto Police Services $936,019 to enforce the Ontario Safe Streets Act between 2000-2010 and only collected $8,086.56 in fines. The public discomfort of witnessing people experiencing homelessness trying to survive doesn’t justify these laws so why are public officials so keen on enacting them? By focusing on Ontario’s Safe Streets Act, I’ll discuss the annihilation of space by law, which provides a response to this question.

Capital accumulation & anti-homelessness laws

According to Mitchell, in order to attract new investments, maintain local capital and protect cities' competitive advantages, governments rely on a number of strategies for growing the economy such as creating tax incentives for businesses and deregulating environmental and labour standards laws. But due to fierce global competition, municipalities are pressured into rolling out further business protection schemes and investing in infrastructure and city amenities to the extent of attracting new investments and keeping existing ones in place. In addition, municipal business strategies often include ways to drive up middle-class spending by appealing to the shopping needs of suburbanites by revamping the image of the city. Consequently, many cities and provinces have turned to the legal system as a way of cleaning up their streets from the “undesirables” by taking away their rights to public spaces in which they often have no other choice but to live in. To gain public support, politicians usually create a moral panic and/or some type of fictional discourse denigrating the homeless population. In this sense, anti-homelessness laws are not intended to help the homeless population but rather to beautify the city as part of wider strategies for attracting and protecting businesses while boosting the economy.

Let’s take Ontario’s Safe Streets Act as an example. Making their debut in Toronto in the summer of 1995, squeegee kids became part the city’s landscape by the following year. Armed with a few drivers’ complaints, Mayor Mel Lastman declared an anti-squeegee kid campaign in 1996 that turned into a full-blown public debate among homeless advocates, drivers, downtown retailers, the media and politicians at the local and provincial level. Then Ontario Premier, Mike Harris, built his case against squeegee kids on a metaphor that depicted homeless youth as the “antithesis of social respectability” while accusing them of negatively impacting tourism and retail businesses. It became clear to downtown retailers and politicians that the only solution to address their presence was to criminalize their income generating activity. The idea that people could earn a living in unconventional ways was completely out of line with capitalist labour relations. In addition, youth street homelessness just did not fit with the appearance of a clean, aesthetically beautiful and safe city that is open for business.

By turning Toronto into a landscape of lifestyle consumption, Toronto has disposed the homeless from their social benefits, from the spaces that they live in and ultimately from their right to exist and do whatever is possible in order to secure their survival. In other words, cities are discriminating against the livelihoods of those in the lowest social strata and rewriting whose lives matter, who is allowed to live in the city and who is worthy of social entitlements. Other scholars such as Roger Keil from York University tend to agree, stating that the goal of anti-homelessness laws is to equate public spaces to spaces for tourists, the inner-city gentry and the urban lifestylers as a means of accumulating wealth rather than maintaining public safety and helping the homeless population.

What’s being done about it?

A couple of years ago, the Coalition for the Repeal of Ontario’s Safe Streets Act launched a petition to repeal the Ontario Safe Streets Act, calling it an “ineffective, expensive and inhumane” response to homelessness. Last year, an Ontario judge wiped out $65,000 in fines amassed by Gerry Williams who was homeless at the time when he accumulated over 400 tickets for non-criminal offences in Toronto. In exchange, Williams must serve two years probation and complete 156 hours of community service for the single conviction of “soliciting in an aggressive manner”. While this is a harsh and unfair punishment, Williams hopes that the ruling will help him get his driver’s licence, improve his credit score and eventually land a job. The Coalition hopes the province will to strike down the law and focus on ensuring that people have access to safe and affordable housing instead.

On the upside of things, in 2015, the BC Supreme Court ruled in favour of a group of homeless people who challenged the City of Abbotsford’s bylaw prohibiting the homeless from sleeping in public spaces. The court recognized the right to public spaces and individuals’ right to safety and security. Last year, Abbotsford passed an amended bylaw allowing people to camp in parks from 7:00pm to 9:00am in order to secure their safety which brought the city in line with the court’s ruling. A similar bylaw in Victoria that prevented the homeless from sleeping in city parks was struck down in 2008 by the BC Supreme Court. The court ruled that the bylaw deprived the homeless of life, liberty and security in violation of the Charter of Rights and Freedoms. However, in 2016 the BC Supreme Court ordered to shut down a camp of about 300 people living on the lawn of Victoria’s courthouse. Chief Justice Christopher Hinkson wrote in his decision that the “encampment is unsafe for those living there and for the neighbouring residents and businesses and cannot be permitted to continue.” While parks in Abbotsford and Victoria are "open" to the homeless population, not all public spaces remain accessible to them depending on the situation as per the BC Supreme Court.

Lastly, the group Homeless in Kelowna continues to oppose the 24-hour ban on sleeping on sidewalks and organized a protest when the new bylaw was being debated at city council. For now, the city is reaching out to community partners to develop a long-term strategy to deal with homelessness and seeking additional funding opportunities as they prepare the 2017 budget. 

These are just a few examples of groups organizing or having organized against regressive anti-homelessness laws. While advocacy groups continue to challenge their municipalities and/or provinces, let’s be clear that the homeless population has the right to public spaces. As cities across Canada struggle to provide safe and affordable housing to its residents, we should at least ensure that public spaces remain what they are – public!

Related posts & links

Image credit: The Phoenix News from the article “Kelowna Bylaw Protest Makes a Storm”

This post is part of our Friday "Ask the Hub" blog series. Have a homeless-related question you want answered? E-mail us at thehub@edu.yorku.ca and we will provide a research-based answer. 

Ambar Aleman is a graduate student working at the Canadian Observatory on Homelessness. Previous to her role at COH, Ambar worked on a number of national advocacy campaigns and policy initiatives on violence against women, women's homlessness and youth leadership. She has also worked front-line at a women's homeless shelter serving families.

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The analysis and interpretations contained in the blog posts are those of the individual contributors and do not necessarily represent the views of the Canadian Observatory on Homelessness.