Some Thoughts on Panhandling and Robbery: A Response to McKay-Panos’ ABlawg Post of January 18, 2013

Two weeks ago, ABlawg.ca published an interesting case comment by Linda McKay-Panos on a recent Alberta Court of Appeal decision clarifying the distinction between aggressive panhandling and robbery. McKay-Panos examines the Court’s reasoning and findings, and concludes that the line between the two is “fairly fine.” You can read the case comment here, and the original court decision, R. v. Ajang, 2012 ABCA 364 [Ajang] here.

While the legal distinction between aggressive panhandling and robbery may be a fine one, as McKay-Panos points out, that fine distinction has big consequences: panhandling is (usually) legal, while robbery is a criminal offence which attracts a maximum sentence of life in prison.

The comment and the case interest me because they reveal the uncomfortably close intersection between social and criminal justice issues, and the degree to which our criminal law is informed by society’s discomfort with poverty. This post will briefly discuss Canada’s history of criminalizing begging and other poverty and socio-economic class-related behaviour, and suggest that, despite changes to our Criminal Code, the law continues to  criminalize poverty (albeit in less obvious ways than in our past).

Canada has a long history of criminalizing “vagrancy” and related behaviours (such as begging and loitering), but much of that legislation was repealed in two sets of reforms: the first in 1953-54, and the second in 1972. For an intriguing summary and analysis of those changes, read Prashan Ranasinghe’s article “Reconceptualizing and Reconstructing the Vagrant: A Socio-Legal Analysis of Criminal Law Reform in Canada, 1953-1972,”¹ available here. Ranasinghe notes that begging was no longer a criminal offence after 1972, and that at the time of the changes a Member of Parliament commented that the law had to be changed because vagrancy (which was defined to include, inter alia, begging) was not “criminal in the real sense of that word”. This MP also stated that “it [was] time we realized that the origin of many of these . . . problems are social rather than criminal.”

Fast forward forty years, though, and we are still struggling with the same issues.

The Criminal Code defines robbery as follows:

343. Every one commits robbery who

(a)   steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

(b)   steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;

(c)    assaults any person with intent to steal from him; or

(d)   steals from any person while armed with an offensive weapon or imitation thereof.

In Ajang, the accused robber neither verbally threatened to harm the complainant, nor came into physical contact with her — he repeatedly asked her for money while she was getting in her car, and physically prevented her from closing her car door with his knee while continuing to ask for money. He leaned in towards the complainant while she was in her vehicle, but did not take anything from the car except that which was handed to him by the complainant.

The trial judge had “acquitted the respondent on the charge of robbery but found that by holding the car door open, and repeatedly asking for money, the respondent had caused the complainant to fear for her safety thus committing an assault” (Ajang at para. 8). The Court of Appeal overturned the trial judge’s acquittal on the charge of robbery and substituted a conviction under s. 343(c), finding that the evidence proved an intent to steal (which the trial judge had not found).

On the facts as summarized in Ajang, I question the finding of assault. Our Criminal Code defines assault as follows:

265. (1) A person commits an assault when

(a)   without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

(b)     he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or

(c)   while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

Although the original trial decision is not reported, the only facts referenced in the appeal decision to support the finding of assault are the physical proximity of the accused to the complainant, and the resulting, subjective fear of the complainant There is no reference to a finding that the accused applied intentional force, and there is an express reference to the fact that the accused was not wearing a weapon or suggesting he had a weapon (therefore ruling out conviction under 265(1)(c)).  Surely, where Parliament creates an express offence of assault for persons who are begging while displaying a weapon, they are defining a very particular type of constructive assault which would not otherwise have been a crime under subsections (a) or (b). Parliament was, presumably, trying to help draw the line between aggressive panhandling (where no force is used) and assault (where force, or the implied threat of force, is used). The enaction of s.265(1)(c) suggests that something more than a beggar’s imposing presence is required to ground a conviction for assault. I would suggest that the facts as presented in this case do not support a finding that the threat of force was used, and therefore do not support a finding of assault.

In coming to their conclusion that the accused had not only committed an assault but had committed a robbery by “assaulting a person with intent to steal,” the Court of Appeal noted that the complainant gave the accused money because she “felt threatened.” At the root of their decision, the Court of Appeal holds that fear on the part of the complainant elevates an accused’s behaviour from panhandling, which is legal, to robbery. It is the subjective fear of the complainant which grounds both the finding that an assault took place, and the finding that the accused intended to steal. While the Court acknowledges in its decision that fear on the part of a complainant must be objectively reasonable, the Court does not undertake any meaningful analysis of whether or not the fear felt by the complainant in this case was objectively reasonable, and does not analyse to what extent the complainant’s subjective fear might have been informed by prejudice, discomfort, or misunderstanding.

I would imagine that many people experience some level of fear in the presence of aggressive or intoxicated panhandlers. But how does the fear of a complainant prove either the threat of force sufficient to ground a conviction for assault, or an intent to steal sufficient to ground a conviction for robbery? Would the outcome of this case been different if the accused was a well-dressed female university student repeatedly asking for money in a campus parking lot? Would that be robbery, or something less?

The law may no longer criminalize begging per se, but the changes to the vagrancy provisions of the Criminal Code were a hollow victory for social equality ­if the alternative to a conviction for begging is a conviction for robbery. I would argue that, despite revisions to the Criminal Code intended to ensure that our law applies equally “to the privileged and to those who are less privileged, to the rich and to the poor,”²  our legal system continues to over-criminalize the obviously poor because of the distrust and discomfort with which the general population views them.

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¹ Prashan Ranasinghe, “Reconceptualizing and Reconstructing the Vagrant: A Socio-Legal Analysis of Criminal Law Reform in Canada, 1953-1972,” (2010) 48 Osgoode Hall Law Journal.

² Comment of then Justice Minister Lang, House of Common Debates No. 4, (27 April 1972) at 1699, as cited by Ranasinghe, supra, at 87.