Taming disorderly people one ticket at a time: the penalization of homelessness in Ontario and British Columbia.

Author:Chesnay, Catherine T.
 
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Introduction

Throughout Canada, urban public space has increasingly been privatized and regulated, becoming less accessible to marginalized populations (Sylvestre 2010; Berti 2010; Hermer and Mosher 2002). Municipal and provincial governments have adopted new strategies to enhance public order and security (Beckett and Herbert 2010; DeVerteuil, May, and Mahs 2009; Bellot, Raffestin, Royer, and Noel 2005; Harcourt 2001). Primarily informed and justified by a criminological theory, the broken window theory (Wilson and Kelling 1982), these strategies whether they take the form of provincial statutes and by-laws or whether they rely on public policies and policing practices-have aimed to manage groups characterized as disorderly or dangerous by excluding them from public spaces (O'Grady, Gaetz, and Buccieri 2011; Douglas 2011; Sylvestre 2010; Berti and Sommers 2010; Johnson 2010; Blomley 2007; Esmonde 2002; Hermer and Mosher 2002).

In the last few years, there has been a growing number of studies on the use of statutory tools and policing practices to regulate and limit the activities of homeless people in public space in the United States (NLCHP 2011; Beckett and Herbert 2010) as well as in Canada, specifically Toronto (O'Grady, Gaetz, Buccieri 2011; May 2006; Hermer and Mosher 2002; Parnaby 2003; Esmonde 2002), Vancouver (Kennelly 2011; Berti and Sommers 2010; Blomley 2007; Tait 2004), Montreal (Douglas 2011, Sylvestre 2010; Bellot, Chesnay, and Royer 2007; BeUot et al. 2005), Ottawa (Sylvestre, Bellot, Couture-M6nard, and Tremblay 2011; Sylvestre 2010), and Quebec (Bernier, BeUot, Sylvestre, and Chesnay 2011). These studies have focused respectively on the context of the adoption of new statutes aiming to regulate homeless people (Hermer and Mosher 2002; Parnaby 2003), the discriminatory enforcement of existing laws and ordinances (Douglas 2011; O'Grady et al. 2011; Sylvestre et al. 2011; Sylvestre 2010; Bellot et al. 2005), or the impact of penalization on homeless people (O'Grady et al. 2011; Raffestin 2009; Bellot at al. 2005).

This body of research has predominantly used the concept of criminalization to refer to "the use of laws and practices to restrict the activities and movement of people who are homeless, often with the outcome being fines and/or incarceration" (O'Grady et al. 2011, p. 7). In this article, we have instead chosen to use the concept of penalization. While this may be an unusual term in English, penalization refers to the growing tendency to resort to regulatory law, which includes provincial and federal statutes as well as by-laws, rather than criminal law (most notably found in the Criminal Code and specific federal statutes) as the primary normative punitive system in the resolution of conflicts related to the use of public spaces (Sylvestre et al. 2011; Sylvestre 2009). Both the Ontario and BC Safe Streets Acts are provincial statutes that fall under provincial jurisdiction and that create non-criminal regulatory offences; the concept of penalization is, thus, particularly suitable for examining their enforcement.

The objective of the present article is to document how these two pieces of legislation dealing with the survival strategies of homeless people in public space have been used. The article unfolds in five sections. The first section discusses how the penalization of homeless populations is situated at the intersection of public space and law. The second section briefly discusses the content of this specific legislation and presents the dominant discourses that accompanied the adoption of a Safe Streets Act in both Ontario and British Columbia. The next section describes our methodological strategy, while the fourth section presents our results in terms of the number of tickets issued under the Safe Streets Act in each province, the enforcement of the Acts over the years, and the portrait of ticketed individuals, as well as the judicial process. The last section focuses on the impact of the use of the Safe Streets Acts on ticketed homeless individuals.

The penalization of homeless people at the intersection of public space and law

Since the beginning of the 1980s, Canada has seen a significant and consistent increase in the depth and breadth of the homelessness phenomenon: not only are there more homeless individuals, but there are new populations who are now experiencing homelessness, such as families, youth, immigrants, and refugees (Hulchanski, Campsie, Chau, Hwang, and Paradis 2009; Roy and Hurtubise 2007). The emergence of homelessness can be traced back to structural changes in welfare and housing programs (at all jurisdictional levels) that have accompanied economic globalization and the implementation and reconfiguration of the neo-liberal state (O'Grady et al. 2011; Hulchanski et al. 2009; Roy and Hurtubise 2007). As Hulchanski et al. (2009) astutely underline, the problem of homelessness has developed as a "dehousing" problem in Canada: homelessness has been the result, not of natural disasters and catastrophes, but rather of devastating housing and welfare policies (Hulchanski et al. 2009).

The process of gentrifying inner city areas has not only amplified the problem of homelessness by reducing the availability of affordable housing but has also exacerbated conflicts over the use of public space (Parazelli 2009; Morin, Parazelli, and Benali 2008). As homelessness has become increasingly visible within the urban landscape, the city has been reconfigured to answer the needs of a lifestyle focused on consumption, leisure, and luxury (Doherty, Busch-Geertsema, Karpuskiene, Korhonen, O'Sullivan, Sahlin, Tosi, Petrillo, and Wygnanska 2008; Atkinson 2003). Casualties of economic and political restructuring, homeless people are seen as living proof of the failure of gentrification strategies within Canadian urban centres, in terms of economic, moral and aesthetics norms (Gordon 2010; Parazelli 2009; Morin et al. 2008).

The literature on the criminalization and the penalization of homelessness has focused on the intersection of and the interaction between law and public space to study the rolling out of penal strategies to address the homeless problem. For instance, Smith (1996) coined the term revanchist city by framing gentrification as a political and economic strategy accompanied by discourses of revenge against marginalized and excluded social groups (urban poor, minorities, gays and lesbians, etc.) who have allegedly monopolized urban cores, bringing about urban decay. In that context, homeless people are cast as "public enemies" that cannot be tolerated in public spaces, and this justifies the use of legal enforcement to sanitize public space (Atkinson 2003; Smith 1996). DeVerteuil et al. (2009) used the term post-justice city to characterize literature that focuses on the rights of the homeless to access public space. In that literature, access to public space is associated with civil rights, since public space is defined as a "democratic resource, facilitating encounters with difference, and the production of inclusionary forms of citizenship" (Blomley 2010: 332). The increasing regulation of public spaces is associated with a "collapse" of this space (Mitchell 2003, 1997), the city no longer being concerned with social justice but rather with economics, seen in the growing privatization of space that can only be accessed by people who pay for their streets (Berti and Sommers 2010). The literature on the revanchist city and on the post-justice city produced compelling accounts of the process of "othering" homeless people; that is, the construction of homeless people as undeserving, dangerous, or disorderly, which have accompanied the development, adoption, and implementation of regulations and policies aiming to control homeless people's activities and their presence in public space (e.g., Esmonde 2002; Hermer and Mosher 2002; Parnaby 2003).

The present article engages with the literature on law and public spaces. It presumes that law has an impact on, and is shaped by, public space, underlining the specific social and historical contexts in which penalization unfolds. As will be discussed in the next section, we argue that the adoption, the implementation, and the enforcement of a Safe Streets Act in Ontario and British Columbia has been (and still is) justified by discourses that construct homeless people as disorderly. Moreover, the alleged "disorderliness" of homeless people [as implied] in these pieces of legislation not only supports aggressive legislative enforcement but has also legitimized the recourse to other forms of regulatory strategies to better control disorderly people through legal, administrative, or architectural means (Sylvestre 2010).

Regulating public space and dealing with "disorderly" people

The Safe Streets Acts of both Ontario and British Columbia forbid aggressive solicitation as well as the solicitation of a captive audience (squeegeeing falling into that category). Thus, in theory, these statutes do not aim to prevent homeless people from being in public spaces per se (although they have been criticized for doing exactly that); rather, they regulate two kinds of survival strategies that are used by homeless people.

At this stage, it is important to acknowledge the fact that not all people practising squeegeeing or panhandling can be defined as "homeless." For instance, street-involved youth may practise squeegeeing while housed, and street-involved youth may not practise squeegeeing while sleeping outside or at a shelter (O'Grady and Bright 2002). Being homeless refers to a variety of housing circumstances (such as relying on emergency shelters, couch surfing, sleeping in the rough, etc.), which are all characterized by unstable and unfit housing situations (Hulchanski et al. 2009); squeegeeing and panhandling, however, are income-generating strategies situated outside the formal labour market (Karabanow, Hughes, and...

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