Study Notes on Criminalization of Homelessness and Liability

Criminalization of Homelessness and Liability

Overview of Criminalization of Homelessness

• Understanding Homelessness:

  • The experience of homelessness is often viewed as unsightly and distasteful by society.

  • Homelessness highlights deficiencies in the societal safety net, such as a lack of basic needs like shelter, food, and hygiene.

  • Misconceptions about homelessness fuel societal hostility and misunderstanding of available resources.

• Municipal Responses:

  • Municipalities often perceive homelessness as a visibility issue, focusing on public perception rather than addressing root causes.

  • Many bylaws aim to maintain public peace but effectively criminalize unavoidable behaviors associated with homelessness. For example:

  • Bans on:

    • Sitting or sleeping on sidewalks

    • Erecting temporary shelters

    • Public urination and spitting

    • Swearing and panhandling

  • Such laws disproportionately target homeless individuals, essentially criminalizing their existence.

• Consequences of Criminalization:

  • The criminalization process forces homeless individuals into a state of perpetual illegality, making them vulnerable to legal repercussions for basic survival actions.

  • Implications for Legal Rights:

  • Individuals lose access to fundamental rights such as voting, equal treatment before the law, and freedom of expression, as these rights are contingent on having a stable place to live.

  • The isolation resulting from these bylaws risks further victimization by crime, as individuals are driven into secluded areas to avoid law enforcement.

Strict and Absolute Liability

Definitions and Legal Framework

• Strict Liability:

  • Defined as offenses where mens rea (guilty mind) is not required to establish liability. However, the accused may present a defense of due diligence.

• Absolute Liability:

  • Refers to offenses punishable without proof of intent or any reasonable efforts to avoid committing the act. This is the most stringent form of liability.

• Case Example: Reference to Woodrow case (1846):

  • Accused found guilty under a statute prohibiting tampering with tobacco despite not knowing of the adulteration. This case set a precedent for strict liability in Canadian law.

• Rationale:

  • Societal interests in regulating behaviors that pose a risk to public welfare.

Differences Between Strict and Absolute Liability

• Proof of Actus Reus:

  • Both strict and absolute liability maintain the requirement to establish actus reus (the act itself).

  • However, knowledge of the act (mens rea) is not necessary for liability in absolute liability offenses.

• Defenses Available:

  • Strict Liability: May allow defenses of due diligence where the accused took reasonable steps to prevent the infraction.

  • Absolute Liability: No defenses permitted based on the accused's intent or efforts to avoid wrongdoing.

Legislative Rationales for Strict and Absolute Liability

• Public Welfare Offenses: Developed due to the need to regulate conduct for societal safety. They are not necessarily considered moral wrongs but are necessary to manage risks.

• Efficiency in Law Enforcement: Legal scholars argue that eliminating mens rea requirements for minor offenses reduces court burdens and expedites justice.

Distinguishing Between Offenses

Types of Offences as Identified in Sault Ste. Marie Case

• Three categories identified:

  1. Mens Rea Required Offences: Crimes requiring intent or knowledge.

  2. Strict Liability Offences: No need to prove mens rea; the accused can defend themselves by proving reasonable care was taken to avoid the wrongdoing.

  3. Absolute Liability Offences: Guilt established solely by proving the prohibited act occurred; no defenses allowed.

Importance of Legislative Intent

• The determination of whether an offense is considered criminal or regulatory relies on legislative language and intent:

  • Regulatory Legislation: Protects public welfare through minimum standards of conduct. This includes everyday regulatory offenses that protect health and safety, such as food handling regulations, traffic laws, etc.

Constitutional Context

• Canadian Charter of Rights and Freedoms:

  • Section 7 stipulates that no one should be deprived of liberty except in a manner consistent with principles of fundamental justice.

  • Absolute liability offenses involving imprisonment infringe on these rights, emphasizing the need for a mens rea in serious regulatory laws.

  • Wholesale Travel Group Inc. Case: Supports the constitutionality of strict liability offenses, indicating that such regulations do not universally violate the Charter, as proof of some level of fault (intent or negligence) may be sufficient.

Implications for Addressing Criminalization of Homelessness

Potential Reforms

• Legal Adjustments to Support Homeless Individuals:

  • Review and potentially rescind punitive fines associated with behavior tied to homelessness, making the legal framework more accommodating and less stigmatizing for individuals without stable living circumstances.

  • Introduce options for dispute resolution, such as legal aid or clinics offering support specifically designed for homeless individuals trying to navigate their legal troubles.

  • Focus on providing support and services rather than punishment for those experiencing homelessness.