Her Majesty the Queen v. Banks et al., 2007 ONCA 19

Her Majesty the Queen v. Banks et al. [Indexed as: R. v. Banks]

84 O.R. (3d) 1

Court of Appeal for Ontario,

Weiler, Armstrong and Juriansz JJ.A.

January 16, 2007

Charter of Rights and Freedoms -- Freedom of expression -- Reasonable limits -- Statutory provisions which prohibit squeegeeing and solicitation of people in vehicles on roadway infringe s. 2(b) of Charter but are justified under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, s. 3(2)(f).

Charter of Rights and Freedoms -- Fundamental justice -- Statutory provisions which prohibit squeegeeing and solicitation of people in vehicles on roadway engage defendants' liberty interest under s. 7 of Charter as defendants faced potential imprisonment if convicted -- Restriction of liberty was in accordance with principles of fundamental justice -- Provisions not vague or overbroad -- Provisions do not infringe defendants' security of the person by denying them economic means necessary for survival -- Provisions do not violate s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, s. 3(2)(f).

Fundamental justice -- Security of the person -- Statutory provisions which prohibit squeegeeing and solicitation of people in vehicles on roadway do not infringe defendants' security of the person by denying them economic means necessary for survival -- Provisions do not violate s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 7 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, s. 3(2)(f).

Charter of Rights and Freedoms -- Equality rights -- Statutory provisions which prohibit squeegeeing and solicitation of people in vehicles on roadway do not violate defendants' rights under s. 15 of Charter -- Provisions do not impose differential treatment on defendants as "beggars" or "poor people" -- If there was differential treatment, such treatment is not based on enumerated or analogous ground of discrimination -- Canadian Charter of Rights and Freedoms, s. 15 -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, s. 3(2)(f).

Charter of Rights and Freedoms -- Scope of Charter review -- Appellants appealed convictions for offences under s. 3(2)(f) of Safe Streets Act and s. 177(2) of Highway Traffic Act -- Appellants challenged constitutionality of those provisions but were not being permitted to [page2 c]hallenge constitutionality of other provisions of Safe Streets Act -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, ss. 2, 3.

Constitutional law -- Distribution of legislative authority -- Statutory provisions which prohibit squeegeeing and solicitation of people in vehicles on roadway are not within exclusive competence of federal Parliament on basis that their pith and substance was criminal law -- Pith and substance of provisions is regulation of interaction of pedestrians and vehicles on roadways in interests of public safety, efficient circulation and public enjoyment of public thoroughfares -- Province has legislative competence to enact provisions under s. 92(13) and s. 92(16) of Constitution Act, 1867 -- Constitution Act, 1867, ss. 92(13), 92(16) -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 177(2) -- Safe Streets Act, 1999, S.O. 1999, c. 8, s. 3(2)(f).

The appellants attacked the constitutionality of s. 177(2) of the Highway Traffic Act ("HTA") and s. 3(2)(f) of the Safe Streets Act ("SSA"), which generally prohibit "squeegeeing" and approaching and soliciting drivers for money on roadways. They were charged with offences under one or the other of those provisions after approaching vehicles on roadways, and either washing windshields and soliciting money from drivers or simply asking for money without offering to perform any service. The trial judge found that the appellants' rights under the Canadian Charter of Rights and Freedoms were not violated and that the SSA was not beyond the legislative competence of the province. The summary conviction appeal court affirmed the convictions. The appellants appealed.

Held, the appeal should be dismissed.

The province did not lack the legislative competence to enact the impugned legislation because its pith and substance was criminal law, which is within the exclusive competence of the federal Parliament. Overlapping federal and provincial laws may both be constitutionally valid if enacted under an enumerated head in s. 91 or s. 92 of the Constitution Act, 1867. Because a matter within provincial competence may also be the subject of federal law, it was not enough to show that the impugned provisions had a criminal law aspect. In order to succeed, the appellants had to establish that the provisions did not fall within provincial competence or were repugnant to federal legislation. The province has competence to enact legislation regulating the use of streets, sidewalks and public spheres by the public, whether in vehicles or on foot, in the interest of safety, efficient circulation, and public enjoyment and convenience. This competence derives from its power over "property and civil rights in the province" under s. 92(13) and its power over matters of a local nature in the province under s. 92(16) of the Constitution Act, 1867. The dominant aspect or pith and substance of the impugned provisions was the regulation of the interaction of pedestrians and vehicles on the roadways in the interests of public safety, efficient circulation, and public enjoyment of public thoroughfares. Pursuant to ss. 92(13) and (16), this is a legitimate goal of the province. Even if one of the goals of the province in enacting the impugned provisions was to prohibit intimidating and harassing behaviour, legislative measures to control intimidating and harassing behaviour are not necessarily criminal law. While measures to address intimidating behaviour could aptly be addressed under the federal criminal law power, addressing such behaviour is not beyond the power of a province acting under a constitutional head of competence. [page3 ]

The scope of the constitutional challenge was limited to s. 177(2) of the HTA and s. 3(2)(f) of the SSA. While the appellants and the intervenors wished to challenge the prohibition of soliciting in an aggressive manner in s. 2 of the SSA and the prohibition of soliciting a captive audience in s. 3(2)(a) to (e) of the SSA, none of the appellants was charged under those sections. This was not a situation where the court could exercise its discretion to determine an appeal that had become moot. Rather, there was no appeal concerning the constitutionality of ss. 2 and 3(2)(a) to (e). Making unnecessary pronouncements about the constitutionality of legislative provisions is an unwarranted exercise of judicial power.

The impugned provisions did not infringe the appellants' security of the person under s. 7 of the Canadian Charter of Rights and Freedoms by denying them the economic means necessary for survival. The provisions left the appellants free to beg or to provide a service in exchange for alms in any circumstances and settings not prohibited by the legislation.

The fact that the appellants faced potential imprisonment for the conduct for which they were convicted was enough to engage their s. 7 right to liberty. However, the restriction of liberty was in accordance with the principles of fundamental justice. The impugned provisions were not overbroad. Implausible and far-fetched applications of the provisions could be avoided by engaging in a purposive and contextual interpretation of the language in accordance with the well- settled principle that wherever possible a statute should not be construed so as to avoid absurd or unintended consequences and so as to preserve its constitutionality. The impugned provisions are not vague. To the contrary, their language could not be clearer. The provisions did not infringe the appellants' rights under s. 7 of the Charter.

The impugned provisions did not violate the appellants' rights under s. 15(1) of the Charter. They did not draw a formal distinction between the appellants and others. They prohibit all persons, and not just "beggars", from standing on a roadway to solicit a stopped vehicle and from approaching a vehicle to solicit or offer a service. Even if the appellants had established that there was differential treatment under the impugned provisions, they had not demonstrated that this was based on an enumerated or analogous ground. Finally, the provisions did not demean the appellants' dignity in a manner that would constitute discrimination. Assuming the provisions failed to take into account the appellants' condition of economic disadvantage, the provisions did not infringe their human dignity by prohibiting them from stepping onto a roadway or approaching a vehicle to solicit.

The activity of squeegeeing has expressive content. While engaging in this expression on a roadway might endanger traffic safety and impede efficient circulation, it does not undermine the purposes s. 2(b) of the Charter is intended to serve. The impugned provisions were intended to control the expressive activity of soliciting while on a roadway. They infringe s. 2(b) of the Charter. The impugned provisions are justified under s. 1 of the Charter. The objective of regulating the interaction of pedestrians and vehicles on roadways is important enough to warrant overriding the right guaranteed by s. 2(b). Prohibiting persons from soliciting or approaching a vehicle while on a roadway is rationally connected to the legislative objective. The provisions impair freedom of expression as little as possible. While the legislation does effectively ban squeegeeing on roadways, it does not prohibit the expression of a need for help. The deleterious effects do not outweigh the benefits of the limits of the legislation. [page4 ]

APPEAL from the judgment of Dambrot J., 2005 605 (ON SC), [2005] O.J. No. 98, 192 C.C.C. (3d) 289 (S.C.J.), of the summary conviction appeal court, dismissing appeals from a conviction.

Cases referred to Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49, apld A & L Investments Ltd. v. Ontario (1997), 1997 3115 (ON CA), 36 O.R. (3d) 127, [1997] O.J. No. 4199, 152 D.L.R. (4th) 692, 47 C.R.R. (2d) 57, 15 R.P.R. (3d) 311 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 657]; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3, 77 D.L.R. (4th) 385, 120 N.R. 241, 4 C.R.R. (2d) 60 (sub nom. Lepine v. Canada); Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 258 D.L.R. (4th) 595, 340 N.R. 305, 134 C.R.R. (2d) 196, 201 C.C.C. (3d) 161, 2005 SCC 62, 33 C.R. (6th) 78, 8 C.E.L.R.(3d) 1, 32 Admin. L.R. (4th) 159, 15 M.P.L.R. (4th) 1, consd Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, 75 Sask. R. 82, 57 D.L.R. (4th) 231, 92 N.R. 110, [1989] 3 W.W.R. 97, 38 C.R.R. 232, 47 C.C.C. (3d) 1, 33 C.P.C. (2d) 105; Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 2002 44902 (ON CA), 59 O.R. (3d) 481, [2002] O.J. No. 1771, 212 D.L.R. (4th) 633, 94 C.R.R. (2d) 22 (C.A.); Nova Scotia (Board of Censors) v. McNeil, 1975 14 (SCC), [1976] 2 S.C.R. 265, [1975] S.C.J. No. 77, 55 D.L.R. (3d) 632; R. v. Westendorp, 1983 1 (SCC), [1983] 1 S.C.R. 43, [1983] S.C.J. No. 6, 23 Alta. L.R. (2d) 289, 144 D.L.R. (3d) 259, 46 N.R. 30, [1983] 2 W.W.R. 38, 2 C.C.C. (3d) 330, 32 C.R. (3d) 97, 20 M.P.L.R. 267, distd Other cases referred to Canada (Attorney General) v. Montreal (City), 1978 201 (SCC), [1978] 2 S.C.R. 770, [1978] S.C.J. No. 33, 84 D.L.R. (3d) 420; Canada (Minister of Justice) v. Borowski, 1981 34 (SCC), [1981] 2 S.C.R. 575, [1981] S.C.J. No. 103, 64 C.C.C. (2d) 97, 24 C.P.C. 62, 24 C.R. (3d) 352, 130 D.L.R. (3d) 588, 39 N.R. 331, 12 Sask.R. 420, [1982] 1 W.W.R. 97; Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, [1999] S.C.J. No. 24, 173 D.L.R. (4th) 1, 239 N.R. 1, 61 C.R.R. (2d) 189 (sub nom. Batchewana Indian Band (Non-Resident Members) v. Batchewana Indian Band); Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572, [1989] S.C.J. No. 54, 67 Alta. L.R. (2d) 193, 60 D.L.R. (4th) 1, 96 N.R. 70, [1989] 4 W.W.R. 596, 40 C.R.R. 197, 89 CLLC 14,028, 34 C.P.C. (2d) 97 (sub nom. Moysa v. Labour Relations Board, Moysa and Labour Relations Board (Re)); O'Grady v. Sparling, 1960 70 (SCC), [1960] S.C.R. 804, [1960] S.C.J. No. 48, 25 D.L.R. (2d) 145; Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 24 O.R. (3d) 454n, 125 D.L.R. (4th) 385, 183 N.R. 325, 30 C.R.R. (2d) 252, 99 C.C.C. (3d) 97, 41 C.R. (4th) 147 (sub nom. R. v. Canadian Pacific Ltd.); Prince Edward Island (Secretary) v. Egan, 1941 1 (SCC), [1941] S.C.R. 396, [1941] 3 D.L.R. 305, 76 C.C.C. 227; R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95, 125 N.S.R. (2d) 81, 107 D.L.R. (4th) 537, 157 N.R. 97, 349 A.P.R. 81, 85 C.C.C. (3d) 118, 25 C.R. (4th) 179; Reference re ss. 193 & 195.1(1) (c) of the Criminial Code, 1990 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52, 68 Man. R. (2d) 1, 109 N.R. 81, [1990] 4 W.W.R. 481, 48 C.R.R. 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1; Reference re: Anti-Inflation Act (Canada), 1976 16 (SCC), [1976] 2 S.C.R. 373, [1976] S.C.J. No. 12, 68 D.L.R. (3d) 452, 9 N.R. 541; Reference re: Upper Churchill Water Rights Reversion Act 1980 (Newfoundland), 1984 17 (SCC), [1984] 1 S.C.R. 297, [1984] S.C.J. No. 16, 47 Nfld. & P.E.I.R. 125, 8 D.L.R. (4th) 1, 53 N.R. 268, 139 A.P.R. 125; Thorson v. Canada (Attorney General), 1974 6 (SCC), [1975] 1 S.C.R. 138, [1974] S.C.J. No. 45; United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, 147 D.L.R. (4th) 399, 213 N.R. 321, 44 C.R.R. (2d) 189, 115 C.C.C. (3d) 481, 8 C.R. (5th) 79; Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29, 67 Alta. L.R. (3d) 1, 156 D.L.R. (4th) 385, 224 N.R. 1, [1999] 5 W.W.R. 451, 50 C.R.R. (2d) 1, 98 C.L.L.C. Â230-021 [page5 ] Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 Constitution Act, 1867, ss. 91, 92(13), (15), (16) Criminal Code, R.S.C. 1985, c. C-46 Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1(1), [as am.], 177(2) [as am.] Interpretation Act, R.S.O. 1990, c. I.11, s. 17 Safe Streets Act, 1999, S.O. 1999, c. 8, ss. 2, 3(2)(a)-(e), 3(2)(f), 4, 5, 7 Safe Streets Statute Law Amendment Act, 2005, S.O. 2005, c. 32 Authorities referred to Hogg, Peter W., Constitutional Law in Canada, looseleaf (Scarborough, Ont.: Thomson Carswell, 1997), vol. 2 Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 8 (2 November 1999) Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 11A (15 November 1999)

Peter Rosenthal, Mary Birdsell and Gary Magee, for appellants. Susan G. Ficek, Robert E. Charney and Grace Choi, for respondent. Frank Addario and Vanora Simpson, for intervenor Canadian Civil Liberties Association.

The judgment of the court was delivered by

JURIANSZ J.A.: --

I. Introduction

[1] This appeal is a constitutional challenge to certain provisions of the Safe Streets Act, 1999, S.O. 1999, c. 8 (the "Act") and a provision of the Highway Traffic Act, R.S.O. 1990, c. H.8. The 11 appellants were convicted of provincial offences under the legislation and seek to have their convictions set aside by establishing the legislation is unconstitutional.

[2] The appellants Banks, Barrington and Collins were found engaging in what has come to be popularly known as "squeegeeing" on various roads in the City of Toronto. They approached vehicles stopped in traffic on the roadway at red lights, washed the windshields of the vehicles, and extended their hands, soliciting money from the drivers. They were charged with soliciting business contrary to s. 177(2) of the Highway Traffic Act.

[3] The appellants Batuszkin, Beach, Brydges, Evans, Leonard, Moran, Naugle and Stevenson were also found approaching motor [page6 v]ehicles that were stopped at red lights on various roadways in the City of Toronto. Some of these appellants washed the windshields of the vehicles and solicited money from the drivers in exchange. The others asked the drivers for money, by words or gestures, without offering to perform any service. These appellants were charged with soliciting a person in a vehicle on a roadway contrary to s. 3(2)(f) of the Act.

[4] The text of the legislative provisions pertinent to these reasons is set out below. For the purposes of introduction, it is sufficient to say that the Act prohibits begging and panhandling in specific circumstances and, together with a provision of the Highway Traffic Act, entirely bans the activity of "squeegeeing" and the solicitation of people in vehicles on a roadway.

[5] At trial, the appellants each admitted facts that established that they had contravened the Act, but challenged its constitutionality. On August 3, 2001, the trial judge upheld the validity of the legislation and found the appellants guilty. The appellants' appeal to the Superior Court was dismissed by the summary conviction appeal judge on January 14, 2005. They appeal to this court with leave.

[6] The appellants concede they violated the statutory provisions under which they were charged. They submit that these provisions are constitutionally invalid and so they cannot be convicted. The Canadian Foundation for Children, Youth and the Law has provided legal representation to some appellants and the Ontario Coalition Against Poverty provided legal representation to others. It is not necessary to distinguish between these two organizations as their counsel worked together in filing a single factum and advancing one argument to the court. I will refer to the Foundation and the Coalition together as the "Associations". The Canadian Civil Liberties Association (the "CCLA") has intervened to argue that the relevant sections of the Act and the Highway Traffic Act are unconstitutional.

[7] The appellants submit the legislation is unconstitutional because:

(1) the legislation is criminal law and thus beyond the legislative competence of the province;

(2) the legislation infringes the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms;

(3) the legislation infringes liberty and security of the person contrary to s. 7 of the Charter; and [page7 ]

(4) the legislation infringes the rights to equality guaranteed by s. 15 of the Charter.

[8] I would reject all of these arguments and dismiss the appeal.

[9] In concluding that the appeal must be dismissed I take a narrower view of the scope of the appeal than that asserted by the Associations and the CCLA. I do not agree, despite the Associations' assertion that this proceeding was intended to be a comprehensive constitutional challenge to the Act, that this court can determine the constitutionality of provisions other than those under which the appellants were convicted. Nor do I agree that, as argued by the Associations and the CCLA, in determining these appeals the court can resort to an amendment made to the Act subsequent to the appellants' convictions and in fact subsequent to the release of the decision of the Superior Court.

[10] I begin by setting out the relevant legislative framework. I then explain why I do not adopt the broad view of the scope of the appeal put forward. After that, I set out my reasons for rejecting each of the appellants' arguments as to why the legislative provisions are unconstitutional.

II. The Legislative Framework

[11] The long title of the Act is "An Act to promote safety in Ontario by prohibiting aggressive solicitation, solicitation of persons in certain places and disposal of dangerous things in certain places, and to amend the Highway Traffic Act to regulate certain activities on the roadways." The Act received royal assent on December 14, 1999 and came into force on January 31, 2000. As reflected in its title, the Act contains provisions that deal with solicitation in an aggressive manner, solicitation of captive audiences (including solicitation while on a roadway of a person in or on a stopped, standing or parked vehicle) and the disposal of dangerous things in an outdoor public place. The Act also amended s. 177 of the Highway Traffic Act. Previously, s. 177(b) of the Highway Traffic Act prohibited a person, while on a roadway, from stopping or attempting to stop a motor vehicle for the purpose of selling or offering to sell any commodity or service to the driver or any other person in the motor vehicle. Subsection 7(1) of the Act amended this provision by providing that in addition to stopping or attempting to stop a motor vehicle, a person also shall not "approach" a motor vehicle for the purpose of "offering, selling or providing" any commodity or service to the driver or any other person in the motor vehicle. Please note that while the judges below referred to s. 7 of the Act, I refer to s. 177(2) of [page8 t]he Highway Traffic Act, as this was the section under which charges were actually laid.

[12] The relevant provisions of the Act are as follows:

1. In sections 2 and 3,

"solicit" means to request, in person, the immediate provision of money or another thing of value, regardless of whether consideration is offered or provided in return, using the spoken, written or printed word, a gesture or other means.

2(1) In this section,

"aggressive manner" means a manner that is likely to cause a reasonable person to be concerned for his or her safety or security.

(2) No person shall solicit in an aggressive manner.

(3) Without limiting subsection (1) or (2), a person who engages in one or more of the following activities shall be deemed to be soliciting in an aggressive manner for the purpose of this section:

1. Threatening the person solicited with physical harm, by word, gesture or other means, during the solicitation or after the person solicited responds or fails to respond to the solicitation.

2. Obstructing the path of the person solicited during the solicitation or after the person solicited responds or fails to respond to the solicitation.

3. Using abusive language during the solicitation or after the person solicited responds or fails to respond to the solicitation.

4. Proceeding behind, alongside or ahead of the person solicited during the solicitation or after the person solicited responds or fails to respond to the solicitation.

5. Soliciting while intoxicated by alcohol or drugs.

6. Continuing to solicit a person in a persistent manner after the person has responded negatively to the solicitation.

3(1) In this section,

"public transit vehicle" means a vehicle operated by, for or on behalf of the Government of Ontario, a municipality in Ontario or a transit commission or authority in Ontario, as part of a regular passenger transportation service; ("véhicule de transport en commun")

"roadway" has the same meaning as in the Highway Traffic Act; ("chaussée")

"vehicle" includes automobile, motorcycle, van, truck, trailer, bus, mobile home, traction engine, farm tractor, road-building machine, bicycle, motor-assisted bicycle, motorized snow vehicle, streetcar and any other vehicle drawn, propelled or driven by any kind of power, including muscular power. ("véhicule")

(2) No person shall,

(a) solicit a person who is using, waiting to use, or departing from an automated teller machine; [page9]

(b) solicit a person who is using or waiting to use a pay telephone or a public toilet facility;

(c) solicit a person who is waiting at a taxi stand or a public transit stop;

(d) solicit a person who is in or on a public transit vehicle;

(e) solicit a person who is in the process of getting in, out of, on or off a vehicle or who is in a parking lot; or

(f) while on a roadway, solicit a person who is in or on a stopped, standing or parked vehicle.

[13] Section 177(2) of the Highway Traffic Act, as amended by the Act, provides as follows:

177(2) No person, while on the roadway, shall stop, attempt to stop or approach a motor vehicle for the purpose of offering, selling or providing any commodity or service to the driver or any other person in the motor vehicle.

III. The Scope of the Appeal

[14] The appellants approached this appeal as an omnibus challenge to the Act, which they allege prohibits panhandling. The prohibitions in the Act may be organized into three categories: the prohibition of soliciting in an aggressive manner in s. 2, the prohibition of soliciting a captive audience in s. 3, and the prohibition of soliciting a stopped car in s. 3(2)(f) and s. 177(2) of the Highway Traffic Act. The appellants consider only s. 4 of the Act to be outside the scope of the appeal. Section 4 prohibits the disposal of used condoms, hypodermic needles and broken glass on public property.

[15] The Crown argued that the appellants could not challenge the constitutionality of s. 2 and oral argument was focused on this issue. I, however, regard the scope of the appeal to be even narrower. The appellants are limited to challenging the constitutionality of the provisions under which they were charged, namely s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act.

[16] There were 13 defendants before the trial judge and, as noted, there are only 11 appellants. One of the two defendants who is not an appellant is Edward Hughes, who was charged under s. 2 of the Act. Hughes was found panhandling for money on Bloor Street in Toronto. He was charged with soliciting aggressively contrary to s. 2(2) of the Act. The agreed statement of facts filed at trial indicated he was approaching pedestrians, asking for money and following them for a short distance while continuing to ask for money after a refusal. The trial judge found that s. 2(3) of the Act, which deems continuing to solicit a person in a persistent manner after the person has responded negatively [page10]to the solicitation, to be soliciting in an aggressive manner, offended the presumption of innocence guaranteed by s. 11(d) of the Charter. However, he found the constitutionality of the section could be saved by reading into it the words "in the absence of evidence to the contrary".

[17] The summary conviction appeal judge allowed Hughes' appeal on the basis that when he admitted that his conduct amounted to an offence Hughes did not know that the trial judge would read the words "in the absence of evidence to the contrary" into the deeming provisions in s. 2(3). Rather than ordering a new trial for Hughes, the summary conviction appeal judge exercised his discretion to enter an acquittal because of the passage of time since the commission of the offence and the fact that this was a test case. No appeal was taken from the decision to acquit Hughes. None of the eleven appellants before this court were charged under s. 2 of the Act.

[18] The Associations, nevertheless, asked the court to consider and determine the constitutionality of s. 2. The Associations, relying upon Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, [1989] S.C.J. No. 14, submitted that the court had the discretion to consider and determine an important constitutional issue notwithstanding that an appeal has become moot.

[19] The Associations relied heavily on practical considerations. If the court decided not to consider the constitutionality of s. 2 as part of this appeal, it would be necessary to start all over again with another test case working its way through the Ontario Court of Justice and the summary conviction appeal court, before reaching this court at some point in the distant future.

[20] The Associations' position is misconceived. This is not a situation where the court may exercise its discretion to determine an appeal that has become moot. Rather, here, there is no appeal concerning the constitutionality of s. 2 of the Act before the court. There is no live controversy between the Attorney General and any appellant before the court. The Associations are not parties, but organizations providing legal representation to the appellants who, in this appeal, are attacking other provisions of the Act.

[21] It seems to me that, in effect, the Associations are attempting to refer the constitutionality of s. 2 of the Act to the court for an advisory opinion. The practical considerations referred to by the Associations do not give the court jurisdiction where it has none. Borowski, no matter how broadly it is interpreted, does not indicate that this court has the discretion to decide a constitutional issue not raised by the appeal before it. [page11]

[22] Just as there is no appeal before the court that involves the "aggressive panhandling" provisions of s. 2 of the Act, there is no appeal involving the "captive audience" provisions of s. 3(2)(a), (b), (c), (d), or (e) of the Act. The appellants were charged with soliciting a stopped car while on the roadway either under s. 3(2)(f) of the Act or s. 177(2) of the Highway Traffic Act. It is clear that the appellants lack standing to challenge the "captive audience" prohibitions as well.

[23] The appeal before the court arises out of the prosecution and conviction of the appellants for offences proscribed by the Act. The appellants seek to have their convictions set aside alleging that the legislation creating those offences is unconstitutional, based on the division of powers and the Charter. The appeal raises only the validity of the provisions under which the appellants were charged -- s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act.

[24] The Associations say that a great many charges have been laid under the Act and that it is in the public interest to have the constitutionality of the entire Act determined in this proceeding. However, these appeals do not stem from an action for a declaration that the Act is unconstitutional, as was the case in Thorson v. Canada (Attorney General), 1974 6 (SCC), [1975] 1 S.C.R. 138, [1974] S.C.J. No. 45, or Nova Scotia (Board of Censors) v. McNeil, 1975 14 (SCC), [1976] 2 S.C.R. 265, [1975] S.C.J. No. 77 or Canada (Minister of Justice) v. Borowski, 1981 34 (SCC), [1981] 2 S.C.R. 575, [1981] S.C.J. No. 103. Even if the court's jurisdiction to accord discretionary public interest standing had been properly invoked in this case, it could not be said that there was no other reasonable and effective manner in which the question could be brought before the court. Sections 2 and 3(2)(a) to (e) could be challenged by persons charged under them. Presumably, there are such persons among the many who counsel for the Associations stated have been charged under the Act. Such challenges, if and when they come before the court, will enable the court to decide constitutional questions on the basis of actual factual disputes, rather than on a hypothetical basis. As the Supreme Court of Canada has stated, "Charter cases should not be considered in a factual vacuum": Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, [1998] S.C.J. No. 29, at para. 199.

[25] Making unnecessary pronouncements about the constitutionality of legislative provisions is an unwarranted exercise of judicial power. The Supreme Court of Canada has repeatedly stated that a court should refrain from deciding constitutional issues which are unnecessary to the disposition of the case before it: Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572, [1989] S.C.J. No. 54. [page12]

[26] I conclude that the scope of this appeal is limited to s. (3)(2)(f) of the Act and to s. 177(2) of the Highway Traffic Act. While the constitutionality of s. 2(2) was at issue in Hughes' trial and before the summary conviction appeal judge, it is not an issue on appeal before this court. The trial judge noted that the "captive audience" provisions of s. 3(2), except soliciting a person in a stopped vehicle under para. (f), were not engaged by the facts before him. In my view, neither the trial judge nor the summary conviction appeal judge ought to have commented upon the constitutionality of the captive audience provisions of the Act other than s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act.

[27] Of course, the appellants may rely on all the provisions of the Act in the course of reading the Act as whole with a view to discerning the purpose and effects of the particular sections at issue in the appeal.

IV. Analysis of the Issues

1. The legislation is not criminal law

[28] The Associations submit that the province lacked the legislative competence to enact the Act because its pith and substance is criminal law, and criminal law is within the exclusive competence of the federal Parliament.

[29] In rejecting this argument I begin with the observation that the appellants cannot make their case by establishing, as they attempted to, that the enactment of these provisions would have been an apt exercise of the federal criminal law power. This is because federal and provincial spheres of legislative competence are recognized to overlap. Overlapping federal and provincial laws may both be constitutionally valid if enacted under an enumerated head in s. 91 or s. 92 of the Constitution Act, 1867. The subject of the legislation may have one aspect that falls within federal competence and another aspect that falls under provincial competence.

[30] The federal criminal law power, in particular, is extremely broad. It is commonplace that it overlaps with subjects within provincial competence. For example, the provincial traffic offence of careless driving and the federal criminal law offence of dangerous driving are both constitutionally valid: O'Grady v. Sparling, 1960 70 (SCC), [1960] S.C.R. 804, [1960] S.C.J. No. 48; R. v. Mann, 1966 5 (SCC), [1966] S.C.R. 238, [1966] S.C.J. No. 3.

[31] Because a matter within provincial competence may also be the subject of the federal criminal law power, it is not enough for the appellants to show that the provisions they attack have a criminal law aspect. In order to succeed, they must establish that [page13 ]the provisions do not fall within provincial competence or are repugnant to federal legislation.

[32] The province undoubtedly has competence to enact legislation regulating the use of streets, sidewalks and public spaces by the public, whether in vehicles or on foot, in the interest of safety, efficient circulation, and public enjoyment and convenience. This competence derives from its power over "property and civil rights in the province" under s. 92(13) and its power over matters of a local nature in the province under s. 92(16) of the Constitution Act, 1867. See for example, O'Grady v. Sparling, supra; Prince Edward Island (Secretary) v. Egan, 1941 1 (SCC), [1941] S.C.R. 396, [1941] 3 D.L.R. 305; Canada (Attorney General) v. Montréal (City), 1978 201 (SCC), [1978] 2 S.C.R. 770, [1978] S.C.J. No. 33. The province also has, under s. 92(15) of the Constitution Act, 1867, the power to enforce its laws by creating offences sanctioned by fine, penalty or imprisonment.

[33] In this case, s. 5 of the Act creates an offence for contravening the Act carrying a fine of up to $500 for a first conviction, with the potential of six months imprisonment for a second or subsequent conviction. Given the province's power to create offences under s. 92(15) of the Constitution Act, 1867, the existence of penal consequences has little bearing on whether provincially enacted provisions are criminal law. In considering the constitutionality of a provincial statute the primary question is whether the pith and substance of the impugned provisions fall under one of the province's heads of competence enumerated in the Constitution Act, 1867.

[34] The provisions at issue in this appeal, s. 3(2)(f) of the Act and s. 177 of the Highway Traffic Act, on their face regulate the interaction of pedestrians and vehicles on roadways. This is indisputably a subject within provincial competence.

[35] The appellants argue, however, that even if the legislation, on its face, seems concerned with the regulation of traffic, it is necessary to look at both the legal and practical effect of the legislation to determine its pith and substance. The analysis must include " aethe social or economic purposes which the statute was enacted to achieve', its background and the circumstances surrounding its enactment and, in appropriate cases . . . the actual or predicted practical effect" (citations omitted): R. v. Morgentaler, 1993 74 (SCC), [1993] 3 S.C.R. 463, [1993] S.C.J. No. 95, at p. 483 S.C.R. When considered in this context, the appellants submit that the pith and substance of the legislation is not the regulation of traffic but the criminalization of squeegeeing. The appellants submit that the legislation resulted from a "moral panic", whereby there was an emotionally driven, exaggerated and disproportionate [page14 ]perception in the public mind of the threat posed by squeegeeing. If the concern of the Act was truly traffic safety, then, the appellants submit, any activity that might lead to interaction between pedestrians and stopped cars, such as political pamphleteering, would have been banned and not just soliciting.

[36] In short, the appellants argue that the legislature's concern in enacting the impugned provisions was to severely restrict begging in order to address the perceived danger of the intimidation and harassment caused by squeegeeing and panhandling. The purpose of the legislation, they say, was not to make the roads safer. To support the argument the appellants call upon a range of interpretative aids and extrinsic materials. I will discuss these under the following headings: (1) The Act Read as a Whole; (2) Subsequent Legislative Evolution; (3) Legislative History; (4) Statements Made Outside the Legislature; and (5) Expert Evidence. While I discuss these consecutively, it is their combined effect that has to be considered.

[37] As I review these materials, a recurrent observation is that the appellants fail to appreciate the full import of the double aspect doctrine. They underrate the extent of permissible overlap of federal and provincial legislative competencies that may result from each level of government addressing the same subject from a different perspective.

The Act read as a whole

[38] In determining the dominant aspect of s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act, which are at issue in this case, the statutory context in which they are found must be considered.

[39] In this regard, the appellants strongly rely on s. 2 of the Act, which addresses soliciting in an aggressive manner "that is likely to cause a reasonable person to be concerned for his or her safety or security". Specifically, threatening the persons solicited with physical harm, obstructing the path of the persons solicited, and using abusive language during the solicitation are prohibited. This, the appellants say, colours the content of s. 3(2)(f) and s. 177(2) of the Highway Traffic Act and indicates that they too were intended to address the perceived danger of intimidation and harassment. The appellants submit that the prohibitions of ss. 3(2)(a), (b), (c), (d), and (e) further support their contention that the impugned provisions were intended to address harassing behaviour. Protecting members of the public from intimidation and harassment by others belongs to the domain of criminal law, they say. [page15]

[40] I do not accept this argument.

[41] First, the words of s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act are clear. They proscribe the act of soliciting a person in a stopped vehicle, while "on a roadway". No matter what one may make of the other provisions of the Act, intimidation and harassment are irrelevant to the solicitation addressed by these sections.

[42] Second, it does not assist the appellants to establish that the impugned measures address intimidating and harassing behaviour. Such behaviour has a double aspect. Viewed solely as the regulation of the behaviour of one member of society towards another, it has a criminal law aspect. Viewed as promoting the safe, comfortable and enjoyable use of public thoroughfares and spaces it has an aspect that falls under provincial jurisdiction.

Subsequent legislative evolution

[43] The Act, which received Royal Assent on December 14, 1999, was amended by the Safe Streets Statute Law Amendment Act, 2005, S.O. 2005, c. 32, which received Royal Assent on December 15, 2005. The amendment provides that s. 3(2) of the Act and s. 177(2) of the Highway Traffic Act do not apply to fundraising activities of charitable organizations that are permitted by municipal by-law. The appellants sought to rely on the amendment, arguing that it confirms their position that the Act was enacted, not out of concern about traffic safety, but to specifically target the type of solicitation engaged in by those who squeegee car windows.

[44] The Crown took the position that the amendment, which was not in effect until after the appellants committed the offences, were charged, tried, convicted and their summary conviction appeals were dismissed, was not admissible to discern the purpose of the original statute. In any event, the Crown submits that the amendment clearly had a different purpose from the original Act.

[45] I agree with the Crown's position.

[46] Use of the subsequent amendment in the interpretation of the original Act is foreclosed by s. 17 of the Interpretation Act, R.S.O. 1990, c. I.11. It provides:

17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law.

[47] The Crown also points out that the Supreme Court of Canada in United States of America v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, [1997] S.C.J. No. 64, at para. 45 explained why the subsequent [page16] evolution of a statute cannot be put to the use the appellants advocate:

What legal commentators call "subsequent legislative history" can cast no light on the intention of the enacting Parliament or Legislature. At most, subsequent enactments reveal the interpretation that the present Parliament places upon the work of a predecessor. And, in matters of legal interpretation, it is the judgment of the courts and not the lawmakers that matters. It is for judges to determine what the intention of the enacting Parliament was.

[48] Consequently, I conclude the subsequent amendment cannot be used to discern the purpose of the original Act, and I pay no heed to it. If I were to consider it, I would be inclined to the view that the amendment suggests the Act in its original form applied to solicitation by charities and the amendment was necessary to effect a change.

Legislative history

[49] The appellants cite Hansard evidence to support their position that the Act is an attempt to criminalize the activity of squeegeeing. I am guided by the caution of the Supreme Court of Canada in R. v. Morgentaler, supra, at p. 484 S.C.R., that Hansard evidence is admissible as relevant to both the background and the purpose of legislation provided that the court remains mindful of its limited reliability and weight. The best indication of the legislature's intent is the text of the statute it has enacted and the intent and meaning of remarks made in the House are often disputed. Certainly, that is so in this appeal. The Crown not only picks out and relies on different passages of Hansard, but also urges a different understanding of the passages relied upon by the appellants.

[50] The appellants point out that at first reading, the Attorney General described the Act as "legislation empowering the police to crack down on squeegeeing and aggressive forms of solicitation experienced by many people in Ontario through panhandlers. This is one element of our broad effort to make our towns and cities safer places to live and raise families." He went on to say, "Our government believes that all people in Ontario have the right to drive on the roads, walk down the street or go to public places without being or feeling intimidated. They must be able to carry out their daily activities without fear" (Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 8 (2 November 1999) at 284).

[51] In a later statement to the legislature, the Premier commented that the Act "would give police the tools to crack down on aggressive panhandlers and on squeegee people who harass and [page17 ]intimidate motorists" (Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 11A (15 November 1999) at 423).

[52] The appellants also point out that the Premier answered a question regarding the effect of the Act on legitimate charities by saying: "What I read into that question is a disgraceful lack of confidence in the police to use common sense in understanding the difference between aggressive panhandling, that which is interfering and causing safety concerns, and the case you raised" (ibid. at 431). The Attorney General said that it was a "misrepresentation of the intent" of the Act to think that "traditional fundraisers for charities . . . can no longer be held because these actions would be subject to prosecution" (ibid. at 439).

[53] The Crown also cites the debates to submit that the original Act was not intended to be selectively enforced against panhandlers only. It observes that the examples to which the Premier was responding in the passage quoted above were students holding up signs along roadways to invite motorists into charity car washes and a charity selling newspapers at traffic signals (see ibid. at 430). The Crown submits that it is far from clear that these activities would violate the Act at all, and therefore the Premier's response does not indicate that he contemplated selective enforcement. Similarly, the Crown points to the fact that after making the comments cited above, the Attorney General went on to say, "If this law passes, a Boy Scout or any other volunteer for a charitable organization may continue to solicit in a non- aggressive manner at locations where members of the public are not a captive audience" (ibid. at 439). The Crown concludes that there is nothing in the debates to show that the legislature's intention was to enforce the Act exclusively against panhandlers.

[54] The Crown also refers to the Attorney General's speech introducing the Act as evidence of its purpose: Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 8 (2 November 1999) at 284. However, unlike the appellants, it uses this Hansard evidence in support of its submission that the Act is properly characterized as valid provincial legislation relating to traffic safety. The Crown cites the following passage:

It is time for government to exercise its responsibility to maintain and protect the ability of Ontario residents to use their streets, sidewalks and parks in a safe and secure manner. . . . The bill, if passed, would regulate conduct that interferes with the safe use of public spaces. . . . We know that many motorists feel intimidated when people enter the road to offer unwanted services, resulting in a significant safety hazard. I personally have met with business people who say that their employees and customers routinely have difficulty entering stores and offices because the sidewalks are blocked by [page18] people who are aggressive in their solicitations. Mayors are hearing calls for action from community residents.

[55] While I have considered the Hansard evidence carefully, I conclude it is of little assistance in this case.

[56] First, it is not clear whether the Hansard comments relied upon by the appellants, no matter what one makes of them, were made in relation to the impugned provisions. Certainly, some of the comments seem to address the aggressive panhandling provisions of s. 2. While s. 2 provides valuable context, the impugned provisions themselves are clear. They address the activities of pedestrians on roadways interacting with stopped vehicles.

[57] Second, accepting that Hansard supports the appellants' position that an important aspect of the statute was to address intimidating or harassing behaviour and that the primary concern of the legislature in enacting s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act was the activity of squeegeeing, it does not follow that the legislation is criminal law.

[58] The appellants' argument that legislative measures to control intimidating or harassing behaviour is necessarily criminal law is simply incorrect. As mentioned above, while measures to address intimidating behaviour could aptly be addressed under the federal criminal law power, addressing such behaviour is not beyond the power of a province acting under a constitutional head of competence. For example, the same behaviour is capable of being a criminal assault under federal criminal law and sexual harassment under provincial human rights legislation. The issue is not whether the province has enacted measures to control intimidating or harassing behaviour, but whether the province has enacted them under a constitutional head of competence in doing so.

[59] R. v. Westendorp, 1983 1 (SCC), [1983] 1 S.C.R. 43, [1983] S.C.J. No. 6, upon which the appellants rely, is distinguishable because the bylaw in that case prohibited communication for the purposes of prostitution without any concern about the control and enjoyment of property. The Supreme Court of Canada said at p. 52 S.C.R.: "There is no property question here, no question even of interference with the enjoyment of public property let alone private property."

[60] The province has the competence to prohibit intimidating and harassing behaviour to the extent necessary to ensure the safe and enjoyable use of public thoroughfares and spaces. The ample and pointed references of the Premier and Attorney General to intimidating and harassing behaviour were made in the [page19] context of ensuring the public's right to "drive on the roads, walk down the street or go to public places without being or feeling intimidated".

[61] The province also has the competence to prohibit the solicitation of stopped vehicles by pedestrians "on the roadway" as it has done in s. 3(2)(f) of the Act and in s. 177(2) of the Highway Traffic Act. The legislative record indicates that the perceived problem that prompted the legislature to take action may have been the activity of squeegeeing. However, the legislative record also indicates that the legislature's concern with squeegeeing was its perceived negative effect on the safe, efficient and enjoyable use of public thoroughfares and spaces.

Statements made outside the legislature

[62] The appellants introduced affidavits that contain newspaper reports of comments made by the Premier and other government officials outside the legislature. These comments are inadmissible. Ignoring their hearsay aspect, extra- legislative comments by individual members of the legislature are not admissible to show the legislature's intention: Reference re: Upper Churchill Water Rights Reversion Act 1980 (Newfoundland), 1984 17 (SCC), [1984] 1 S.C.R. 297, [1984] S.C.J. No. 16, at p. 319 S.C.R.

Expert evidence

[63] The appellants also introduced a number of affidavits from experts, which they say went unchallenged. At trial, the Crown objected to the admissibility of much of the material that was tendered. The trial judge ruled that certain portions of some of the affidavits were inadmissible, but decided to treat the bulk of the impugned material as a matter of weight to be determined at the end of the case. In the end, he made little mention of the material and in fact treated it somewhat dismissively. In the context of discussing the appellants' s. 15 argument he said:

Much of the affidavit material filed by the defendants consists of complaints about the general thrust of current provincial social policy in Ontario; the affiants all have an obvious socioeconomic and political perspective that is diametrically opposed to that of the government of the day.

[64] The summary conviction appeal judge took much the same view.

[65] I, too, regard the affidavits, to the extent they are admissible, as deserving of little or no weight. For the most part, they were tendered for purposes relevant to the appellants' Charter arguments. I will have more to say about them when discussing those issues. Insofar as they were tendered to establish that the [page20] dominant aspect of the Act was the criminalization of squeegeeing, rather than the regulation of the streets, they are not useful to the analysis.

[66] For example, Professor Ezra Hauer, an engineer experienced in road safety research and consulting, expressed the opinion that "the thrust of the Act has no direct bearing on road safety". This affidavit is not helpful because whether, and to what extent, the Act actually improves traffic safety is not a question for the court. The wisdom and efficacy of the statute is the concern of the legislature: Reference Re: Anti- Inflation Act (Canada), 1976 16 (SCC), [1976] 2 S.C.R. 373, [1976] S.C.J. No. 12. The only issue for the court is whether the legislature could enact the legislation to regulate the use of streets and sidewalks.

[67] In any event, Professor Hauer's affidavit did not go as far as the appellants would have it. Professor Hauer, as I read his affidavit, did recognize that a person stepping onto the roadway to interact with stopped vehicles presented a danger. He made two points: (1) approaching stopped vehicles has not been cited as a factor in the occurrence of motor vehicle accidents; and (2) the risk of harm to persons soliciting such stopped vehicles would be about the same as that presented by other activities, such as handing out political pamphlets.

[68] The fact that approaching a vehicle that is already stopped has not been reported to be a factor in the occurrence of motor vehicle accidents is irrelevant. The legislature has the competence to address the danger presented by a pedestrian stepping onto the roadway to approach a stopped vehicle. Documented reports of such activity causing traffic accidents are not a necessary prerequisite for the province's competence. Nevertheless, there is evidence in the record from the head of Traffic Safety Programs for the Toronto Police Service that "the safety of both motorists and pedestrians will be enhanced where pedestrians are restricted as much as possible from entering on the roadway at places other than cross walks and traffic lights, and where their interaction with the vehicles and motorists on the roadway is minimized". Moreover, the legislature's competence to address the activity is not undermined by the fact that another activity, stopping a moving vehicle, may be more dangerous.

[69] The second point made by Professor Hauer that the Act does not prohibit activities such as political pamphleteering that may be as dangerous as soliciting stopped vehicles is of no assistance to the appellants' criminal law argument. The legislature has the constitutional competence to prohibit the activity of approaching cars stopped on roadways for the purposes of [page21] soliciting. In responding to an actual concern, the legislature did not have to address every activity that might conceivably interfere with the safe and enjoyable use of the streets. There is no evidence that political pamphleteers were interfering with traffic by stepping onto roadways to distribute pamphlets to drivers at red lights or waiting in traffic thus raising a concern that the legislature did not address.

[70] Finally, the appellants' focus on traffic safety ignores the breadth of the province's jurisdiction to regulate the use of streets. The fact that approaching stopped cars for the purpose of soliciting interferes with the efficient flow of traffic is enough to give the legislature competence to prohibit the activity. It is worth noting that according to the agreed statements of fact filed before the trial judge, some of the appellants did not leave the intersections where they solicited drivers until after the traffic lights had changed. The presence of pedestrians in traffic lanes is an obvious interference with traffic circulation. While hardly necessary, there is evidence to this effect in the record.

Conclusion

[71] None of the interpretative aids relied on by the appellants displaces the clear import of the words of the impugned provisions themselves, namely, that the dominant aspect of the legislation is the regulation of the use of streets.

[72] I would conclude that the dominant aspect or pith and substance of the provisions at issue in this appeal, s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act, is the regulation of the interaction of pedestrians and vehicles on the roadways in the interests of public safety, efficient circulation, and public enjoyment of public thoroughfares. Pursuant to ss. 92(13) and (16), this is a legitimate legislative goal of the province.

2. The legislation does not infringe liberty or security of the person contrary to section 7

[73] Section 7 of the Charter provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[74] Life, liberty and security of the person are interests protected by s. 7, but the section is only violated if the infringement of those interests is not in accordance with the principles of fundamental justice.

[75] The appellants submit that the impugned sections infringe their right to liberty and security of the person and contravene the [page22] principles of fundamental justice in that they are overbroad and vague.

[76] Section 7's guarantee of physical liberty is engaged, they submit, because they face a possible penalty of imprisonment for a second offence.

[77] The appellants also say their right to security of the person is infringed because the prohibition of the activity of squeegeeing causes them serious psychological stress and denies them the necessities of life. They submit that persons who engage in squeegeeing are among the most disadvantaged persons in society who often experience health and security issues that prevent them from maintaining employment. The affidavit of Professor O'Grady suggested that squeegeeing supports the psychological well-being of street youth. He deposed that prohibiting squeegeeing would encourage some homeless youth to engage in other unlawful activity, such as theft or dealing in drugs. Kolin Davidson, a former street person, deposed that living on the streets is not a matter of choice but of self- preservation. He said that some persons living on the street have no other option and turn to panhandling and squeegeeing to survive. While the appellants recognize that s. 7 of the Charter does not protect economic rights generally, they assert that it does protect those economic rights that are fundamental to human life and survival.

[78] Before discussing the appellants' position, I remind the reader that only the constitutionality of s. 3(2)(f) and s. 177(2) of the Highway Traffic Act are at issue in this appeal. The appellants' position before the trial judge and summary conviction appeal judge was based on ss. 2, 3 and 7 of the Act. I will deal first with the appellants' argument that the Act infringes their security of the person by denying them the economic means necessary for survival.

[79] Essentially the same argument was advanced to the Supreme Court of Canada in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, 1990 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52. The sections of the Criminal Code, R.S.C. 1985, c. C-46 at issue in that case prohibited keeping a bawdy-house and communication in a public place for the purpose of engaging in prostitution. These were said to infringe the appellants' s. 7 rights to liberty and security. Specifically, it was argued that the sections violated the right to security of the person by preventing a prostitute from obtaining the basic necessities of life such as food, shelter and clothing. The majority found s. 7 was engaged only because of the possibility of imprisonment, but ultimately held that the legislation was not unconstitutional. [page23]

[80] This court rejected a similar argument advanced by individual landlords affected by the retroactive voiding of approved rent increases in A & L Investments Ltd. v. Ontario (1997), 1997 3115 (ON CA), 36 O.R. (3d) 127, [1997] O.J. No. 4199 (C.A.). Goudge J.A. wrote at p. 136 O.R.:

The s. 7 claim is that the effect of the 1991 Act on individual plaintiffs has been to deprive them of a source of livelihood, their occupation, and their savings. It is not alleged that the legislation has destroyed their right to work altogether. In my view, the jurisprudence that has developed under the Charter has made it clear that economic rights as generally encompassed by the term "property" and the economic right to carry on a business, to earn a particular livelihood, or to engage in a particular professional activity all fall outside the s. 7 guarantee.

(Citations omitted)

[81] While Goudge J.A. may have left the door open where the legislation destroys the individual's right to work altogether, in this case both the trial judge and the summary conviction appeal judge found that the appellants' evidence did not demonstrate that squeegeeing was necessary for the appellants' survival. The trial judge concluded that the affidavit evidence filed by the appellants "does not establish that the legislation affects their economic right to survival in any fundamental sense". The summary conviction appeal judge correctly found that he had to show deference to the findings of fact made by the trial judge, but also observed [at para. 50]:

There was also no evidence that the prohibited activities inextricably intertwined with the appellants' ability to survive. This is important, because a showing that the legislation interfered with the appellants' ability to survive, rather than with their right to make a living by a particular means might result in a different analysis than the one developed by Babe J.

[82] The Court of Appeal must show deference to these findings, and I agree with them. These provisions leave the appellants free to beg or to provide a service in exchange for alms in any circumstances and settings not prohibited by the Act.

[83] The fact that the appellants face potential imprisonment for the conduct for which they were convicted is enough to engage their s. 7 right to liberty. Therefore it is necessary to consider whether the restriction of liberty is in accordance with the principles of fundamental justice. I agree with the trial judge and the summary conviction appeal judge that such a restriction is in accordance with fundamental justice.

[84] To demonstrate the Act's overbreadth, the appellants advanced a number of hypothetical examples that the trial judge and summary conviction appeal judge considered absurd. Only one of those examples is relevant to the provisions at issue in this [page24] appeal -- persons asking their spouses for change to put in a parking meter as they got out of a parked car.

[85] The judges below were correct in refusing to consider these hypothetical examples. As the Supreme Court of Canada said in Ontario v. Canadian Pacific Ltd., 1995 112 (SCC), [1995] 2 S.C.R. 1031, [1995] S.C.J. No. 62, 99 C.C.C. (3d) 97, at p. 1082 S.C.R., p. 134 C.C.C.:

Where a provision is open to two or more interpretations, the absurdity principle may be employed to reject interpretations which lead to negative consequences, as such consequences are presumed to have been unintended by the legislature. In particular, because the legislature is presumed not to have intended to attach penal consequences to trivial or minimal violations of a provision, the absurdity principle allows for the narrowing of the scope of the provision.

[86] The judges below correctly concluded that implausible and far-fetched applications of the Act could be avoided. The summary conviction appeal judge stated:

Babe J. was of the view that all of these absurdities could be avoided, if they actually arose, by a court engaging in a purposive and contextual interpretation of the language in accordance with the well-settled principle that wherever possible a statute should be construed so as to avoid absurd or unintended consequences and so as to preserve its constitutionality. I share this view.

[87] Further, the impugned provisions are not vague. To the contrary, their language could not be clearer. Persons cannot, while standing on a roadway, solicit a person who is in or on a stopped, standing or parked vehicle or approach a vehicle to do so. Roadway is defined in s. 1(1) of the Highway Traffic Act:

"roadway" means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term "roadway" refers to any one roadway separately and not to all of the roadways collectively;

Conclusion

[88] I would conclude that the appellants' argument relying on s. 7 of the Charter has no merit. While the impugned provisions engage the liberty interest by virtue of the possibility of imprisonment, the appellants have failed to establish that this is not in accordance with principles of fundamental justice as the provisions are neither vague, nor overbroad.

3. The legislation does not infringe the right to equality contrary to section 15

[89] The appellants' argument that the impugned provisions infringe the right to equality guaranteed by s. 15 of the Charter must also be rejected. [page25 ]

[90] The argument attempts to satisfy the test in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, at para. 39:

First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

[91] The impugned provisions do not draw a formal distinction between the appellants and others. They prohibit all persons, and not just "beggars", from standing on a roadway to solicit a stopped vehicle and from approaching a vehicle to solicit or offer a service. The effect of the provisions is that all persons, and not just the appellants, who wish to solicit or offer a service, must do so at locations other than a roadway.

[92] The appellants, however, submit that the effect of the provisions in operation results in substantively differential treatment between the claimants and others. There are two prongs to their argument. The first prong is that the provisions are enforced selectively against "beggars" and not against others who perform similar activities. The second prong is that the substantive effect of the enforcement of the provisions is different for the appellants than for others. The ban on soliciting while on a roadway may inconvenience others, but it prevents the appellants from pursuing their means of subsistence. The appellants submit that the provisions are akin to a prohibition on sleeping under bridges that affects the homeless, but not the rich.

[93] The appellants go on to argue that the differential treatment they experience is based on an analogous ground under s. 15 and constitutes discrimination. They are all homeless or without a fixed address, they are extremely poor, and they are beggars. As a group, beggars have been historically disadvantaged, and economically and politically marginalized. The provisions stereotype them and deepen their disadvantageous position in society.

[94] It is implicit from the appellants' submissions that the comparator group in the first prong is composed of those to whom the legislation applies, but against whom the appellants allege it [page26] is not enforced. In the second prong, the comparator group is comprised of those who are prohibited from soliciting on a roadway, but whose subsistence is not affected by the enforcement of the legislation.

[95] I reject the first prong of the appellants' argument for two reasons. First, selective enforcement against those who beg or squeegee was not established as a matter of fact. The summary conviction appeal judge described the appellants' evidence of selective enforcement as "frail".

[96] Second, there is a distinction between the discriminatory effects of legislation and discrimination in the administration of legislation. An example of the former would be a law that required all persons to wear safety helmets. When enforced evenly against all persons, such a facially neutral law would have the effect of discriminating against Sikh men who must wear turbans. This is different from the selective enforcement of a neutral safety helmet requirement unevenly against only one group. In the first prong of their argument, the appellants allege discrimination in the enforcement of legislation that applies to all who solicit on roadways. Any discrimination in enforcement, if such exists, is not an incident of the legislation, but of its administration. The remedy would lie against those administering the legislation in a discriminatory fashion and not in a finding that the legislation itself is unconstitutional.

[97] The second prong of the appellants' argument also fails on the facts. The trial judge found that the Act, considered as a whole, did not affect the appellants' economic right to survival in any fundamental sense. Given this factual finding, it has not been established that enforcement of the prohibition against soliciting while on a roadway has a more onerous substantive effect on the appellants than it does on others.

[98] Further, even if the appellants had established that there is differential treatment under the impugned provisions, they have not demonstrated that this is based on an enumerated or analogous ground. The appellants, in their factum, variously describe the proposed ground as "beggars", "extreme poverty", "poverty that is so severe that people are forced to solicit alms in public" and "those poor enough to need to beg". In their oral submissions, the appellants spoke of "beggars" for the most part. They say the extreme poverty suffered by the poor who beg is a characteristic that is not within their control or that could only be changed at a great personal cost.

[99] It seems to me that the appellants identify the proposed group not by a personal characteristic, but by an activity. The act of begging is essential to the identification of an individual as a [page27] member of the proposed group. The proposed group is, in essence, "the poor who beg". Professor Hogg suggests that a common element of the enumerated grounds is that "[t]hey describe what a person is, rather than what a person does": Peter W. Hogg, Constitutional Law in Canada, looseleaf (Scarborough: Thomson Carswell, 1997), vol. 2 at 52-31. I would not find that an activity could never be used to identify a prohibited ground of discrimination. However, in this case I do not regard the activity of begging to be an immutable or constructively immutable personal quality that can only be changed at a "great personal cost".

[100] In my view, the "great personal cost" contemplated by the cases refers to a cost to the individual's dignity, as the protection of dignity is, after all, the essence of s. 15's purpose. I believe this is evident from Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, [1999] S.C.J. No. 24, where McLachlin and Bastarache JJ., writing for the majority, indicated at para. 13 that a criterion for recognizing a ground as analogous is that it is "a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity" (emphasis added). Therefore, in determining whether a personal characteristic qualifies as an analogous ground under s. 15, one must consider whether it cannot be changed without unacceptable cost to one's identity and dignity.

[101] The appellants have not put forward their lack of fixed addresses and the fact that they beg as components of a culture that is important to their identity. Rather they have put these matters forward as indicators of their economic status with which they have to cope. I note that in advancing their s. 7 argument, the appellants describe begging as a private choice of a means of subsistence.

[102] Therefore, they have not established that the proposed ground is analogous to those enumerated in s. 15, namely race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[103] While the appellants introduced evidence that there are elevated rates of mental illness and substance abuse among the homeless, that evidence was general in nature. There is no suggestion that any of the appellants suffered from these conditions or that they were discriminated against on these bases.

[104] It is worth noting that the appellants took care not to argue that "poverty" in and of itself is a ground of discrimination. While the "poor" undoubtedly suffer from disadvantage, without further categorization, the term signifies an amorphous group, which is not analogous to the grounds enumerated in s. 15. The "poor" are not a discrete and insular group defined by a common [page28] personal characteristic. While it is common to speak of the "poor" collectively, the group is, in actuality, the statistical aggregation of all individuals who are economically disadvantaged at the time for any reason. Within this unstructured collection, there may well be groups of persons defined by a shared personal characteristic that constitute an analogous ground of discrimination under s. 15.

[105] Falkiner v. Ontario (Ministry of Community and Social Services) (2002), 2002 44902 (ON CA), 59 O.R. (3d) 481, [2002] O.J. No. 1771 (C.A.), on which the appellants rely, is distinguishable from the present case. The differential treatment in that case was based on three grounds: sex, marital status and "receipt of social assistance". Falkiner did not recognize poverty as a ground of discrimination.

[106] Finally, I would find, in any event, that the appellants have not established that the provisions at issue demean their dignity in a manner that would constitute discrimination. Assuming these provisions fail to take into account the appellants' conditions of economic disadvantage, the provisions do not infringe their human dignity by prohibiting them from stepping onto a roadway or approaching a vehicle to solicit.

Conclusion

[107] I would find that the appellants have failed to establish that the impugned provisions contravene the equality guarantee under s. 15 of the Charter.

4. The legislation infringes freedom of expression contrary to section 2(b), but is justified under section 1

[108] It is important to remember that there are different types of behaviour at issue. Seven of the appellants, while on the roadway, offered to squeegee windshields of stopped vehicles seeking money in return. Four of the appellants, while on the roadway, simply asked drivers of stopped vehicles for money. As well, I repeat once more that I consider only the constitutionality only of s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act to be in issue in this appeal.

[109] The most recent exposition by the Supreme Court of Canada as to the analytical framework to be applied in a s. 2(b) case is Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63. This important case was decided after the summary conviction appeal judgment was released. It expanded and refined the test for determining whether a law infringes s. 2(b) [of] the Charter. The case concerned a noise by-law of the City of Montréal. The Supreme Court of Canada restated the three [page29] questions pertinent to a determination of whether a law infringes freedom of expression at para. 56:

First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect?

(Emphasis in original)

[110] The answer to all three questions must be affirmative in order for there to be an infringement of s. 2(b).

[111] Clearly, in this case the answer to the first question is "yes" both in respect of begging and the activity of squeegeeing.

[112] The act of begging is communication and is evidently expression. While I think the trial judge was correct in rejecting the argument that begging, without more, is a form of political speech, I would nevertheless characterize it as fundamental communication at the core of free speech. The message "I am in need and I am requesting your help" is primary communication that seeks and invites participation in the community.

[113] The expressive content of the activity of squeegeeing is essentially the same. While words may not be spoken and although a service is provided, I accept that the driver of the stopped vehicle understands full well that the squeegee person is requesting a donation. I am satisfied that squeegeeing, when considered in its real-life context, is an act that conveys essentially the same meaning as begging.

[114] It is necessary to proceed to the second question, which determines whether activity that does have expressive content, nevertheless falls outside the scope of s. 2(b) protection because of the method or location of the expression. In this case, no objection can be taken to the method of expression of the appellants, and the issue is whether the location of the expressive activity, a "roadway", is incompatible with free expression.

[115] Before proceeding further it is necessary to explain why the Supreme Court's finding in Montréal (City) that "streets" are venues of public communication where freedom of expression must be protected is not dispositive of the question in this case. In Montréal (City) the term "streets" was not restricted to traffic lanes used by vehicles and the form of expression, amplified music from inside a club, did not impede the function of a city street. The court specifically noted at para. 68 that "if the evidence showed that the amplification inhibited passage and communication on the street, the situation might be different".

[116] This case is different because the expressive activity involves the appellants' physical presence on a "roadway", which [page30] is defined as a place "ordinarily used for vehicular traffic". The pivotal fact, common to all appellants, whether they cleaned windshields or simply begged, is that they did the acts which led to their conviction while standing on the part of the street ordinarily used for vehicular traffic.

[117] In Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, [1991] S.C.J. No. 3, the court decided that s. 2(b) does not apply simply because the government owns the place where the expressive activity takes place. That case did not, however, resolve the test for determining whether the application of s. 2(b) was excluded by any particular space owned by the government. Three judges advocated a test based on whether the primary function of the space was compatible with free expression. Three other judges proposed a test based on whether expression in the place at issue served the values underlying the s. 2(b) free speech guarantee. L'Heureux-Dubé J. alone concluded that all expression on government property is protected and any infringement requires a justification under s. 1. Under all of these tests, s. 2(b) applied. The case concerned pamphleteering in an airport's open areas and waiting areas. This was not incompatible with the airport's primary function of serving the needs of the travelling public nor did it undermine the values protected by s. 2(b).

[118] Similarly, in Montréal (City), the majority concluded that on any test, s. 2(b) was infringed and required justification under s. 1. Although the court was not required to do so, the majority offered its views on the diverging tests presented in Commonwealth. It articulated a test at para. 74 that combined elements of the tests espoused by Lamer C.J. and McLachlin J. in Commonwealth:

The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

(a) the historical or actual function of the place; and

(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.

[119] Under this test, the ultimate question is whether free expression in the public place at issue would undermine the values s. 2(b) is designed to promote: Montréal (City) at para. 77. The historical and actual function of the place, and whether other aspects of the place suggest that expression in the place would [page31] undermine the values underlying free expression, are factors to consider in answering that ultimate question.

[120] In this case, the historical use of the portion of a roadway ordinarily used for vehicular traffic was neither the subject of evidence nor argument. I take judicial notice that this portion of roadways has historically been used, and continues to be used, from time to time for expressive activities such as demonstrations and parades. However, in the absence of the parties having had the opportunity to address this issue I am reluctant to use it in the analysis. I proceed to consider the next factor.

[121] The Supreme Court in Montréal (City) indicated that the actual function of the space should be considered. It must be determined whether the activity for which the space is used is compatible with open public expression, or if the activity is one that requires privacy and limited access. The court posed the following questions at para. 76: "Would an open right to intrude and present one's message by word or action be consistent with what is done in the space? Or would it hamper the activity?"

[122] Clearly, the open right to engage in expression on the traveled portion of a roadway would hamper the intended function of the space. Such expression conflicts with the purpose of a traffic lane. However, the question is not free of doubt as the Supreme Court of Canada stated clearly at para. 77 of Montréal (City) that "the ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote". It is not clear to me that the appellants' expression, although incompatible with the function of a traffic lane, undermines the values s. 2(b) is designed to promote. Further cases will provide needed guidance on how and in what circumstances the incompatibility of expression with the actual function of a place operates to undermine the values of s. 2(b). In this case, the appellants' expression promoted their participation in the community, their pursuit of individual self-fulfillment and human flourishing even though it interfered with the intended activity of the place where they expressed themselves. Their expression may have endangered traffic safety and impeded efficient circulation, but I cannot say it undermined the purposes s. 2(b) is intended to serve: democratic discourse, truth finding and self-fulfillment.

[123] I conclude that the appellants' activity does not undermine the values underpinning s. 2(b) and therefore proceed to the next question. [page32]

[124] The third question is whether the impugned provisions infringe the protection of s. 2(b), either in purpose or effect. I conclude that they do.

[125] We are concerned here with more than the appellants' physical presence on a roadway. Section 3(2)(f) prohibits the act of soliciting while physically present on a roadway. No matter what the object of the solicitation may be, it is an expressive act. The appellants Batuszkin, Beach, Brydges, Evans, Leonard, Moran, Naugle and Stevenson were convicted of soliciting while on a roadway. The appellants Banks, Barrington and Collins were convicted not for the physical act of approaching vehicles on a roadway, but of approaching them to offer, sell or provide a service.

[126] The larger statutory context of the impugned provisions, which addresses soliciting more directly, leads me to the conclusion that s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act were intended to control the expressive activity of soliciting while on a roadway. This conclusion does not detract from my earlier finding that their dominant aspect is the regulation of the interaction of pedestrians and vehicles on the roadways in the interests of public safety, efficient circulation, and public enjoyment of public thoroughfares. It is simply that in achieving that overall objective the legislation has the incidental purpose of restricting soliciting which is an expressive activity.

[127] I would conclude that these provisions infringe s. 2(b) of the Charter and must be justified under s. 1 in order to be upheld.

Section 1 analysis

[128] I would conclude the impugned provisions are justified under s. 1 of the Charter.

[129] First, the objective of regulating the interaction of pedestrians and vehicles on roadways is important enough to warrant overriding the right guaranteed by s. 2(b). In a free and democratic society the government may attempt to reduce dangers on roadways and provide for efficient traffic circulation.

[130] Second, prohibiting persons from soliciting or approaching a vehicle while "on a roadway" is rationally connected to the legislative objective. Reducing the presence of pedestrians in traffic lanes may rationally be expected to lessen traffic dangers and increase the efficiency of vehicular circulation.

[131] Third, the provisions impair the appellants' right of expression as little as possible. While the legislation does effectively ban squeegeeing on roadways, it does not prohibit the appellants from expressing their message that they are in need of [page33] help. I appreciate that the provisions of the Act not in issue in this appeal place other restrictions on where and how the appellants may solicit. Still, they are left with many alternatives. They can convey their message on the sidewalk. They cannot squeegee car windows, but to the extent that they may wish to provide a service in exchange for donations, there are other alternatives available.

[132] Fourth, the deleterious effects do not outweigh the benefits of the limits of the legislation. The limits achieve the objective of promoting public safety, efficient circulation, and public enjoyment of public thoroughfares. The impairment of the appellants' rights is minimal. They cannot proceed onto the traffic lanes of roadways. A possible criticism of the legislation is not that it is too broad, but that it is too narrow. The appellants submit that it does not prohibit political pamphleteering. Assuming such an activity would not be "soliciting" under the Act, the fact that the legislation is under-inclusive is not a basis for finding that it is unconstitutional. A prohibition of any and all physical presence of a pedestrian on a roadway would have been too broad. Many persons are required by their work duties to be on foot in traffic lanes. It is understandable and constitutionally permissible for the legislature to attempt to tailor restrictions to the actual problem that it has identified and has sought to remedy. In this case, there is no evidence of political pamphleteering in traffic lanes being a problem warranting legislative action or even that it occurs.

Conclusion

[133] While s. 3(2)(f) of the Act and s. 177 of the Highway Traffic Act infringe the appellants' freedom of expression, the infringement is justified under s. 1 of the Charter.

V. Overall Conclusion and Disposition

[134] I would conclude that the appellants have failed to establish that s. 3(2)(f) of the Act and s. 177(2) of the Highway Traffic Act are criminal law, or that their rights under ss. 7, 15 or 2(b) of the Charter have been unjustifiably infringed. While the appellants' conditions of economic disadvantage may be deserving of sympathy, they have not established they are entitled to a response that is constitutional in nature on the facts of this case.

[135] For the foregoing reasons I would dismiss the appeal.

Appeal dismissed. [page34]