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Dealing with Aggressive Panhandlers

and

Repeat Trespassers on Private Property

Disclaimer The following material is provided for educational purposes only. It is not offered as legal advice or opinion, and is not to be relied upon as such. Mike is a recognized subject matter expert in the use of force and offers his comments here only for education purposes. Ultimately, legal decisions are left up to the court as each case will be examined separately and weighed on its own merits.

Background

Private security personnel often complain of having to deal with some of the same people day after day. The “frequent flyer,” the repeat trespasser. In many circumstances, the person is homeless, a person with mental issues or drug/alcohol addictions, has an “entitlement” mentality or is otherwise problematic for a variety of reasons. In any of these events, the person repeatedly comes to the attention of security as a result of behavioural issues and is asked to leave.

The issue is twofold; first, the person in question is often looking for something (money, just to hang out, or an opportunity to commit a criminal act), or secondly, just to go somewhere to get warm in winter or poor weather, take a few hand outs or scrounge condiments from the food court, eat leftover food or simply to set up housekeeping until such time as they are confronted by security personnel and asked to leave.

In any of the situations mentioned above, there are risk management concerns in dealing with these types of people, public perception issues, brand damage mitigation, and responsibilities for safeguarding persons on the property pursuant to the Occupiers Liability Act. Dealing with this common situation is sometimes a delicate balancing act when you add to this the likelihood that any confrontation or interaction with this “repeat trespasser” will end up on Youtube or in the social media and your actions will be scrutinized for months or even years to come.

In the commentary that follows I will provide you with a few options to consider and include comments from the courts in cases where these have become debatable issues.

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Options for First Responders

Asses/Plan/Act – Factors in the Decision Process

First and foremost, the approach by security needs to be one of customer service. It is always most desirable to be a first responder that is there to help and not primarily looking to arrest or eject regardless of who the person is or the situation.

The fact that the person is repeatedly coming to your attention, any history of previous interactions etc should be kept in mind, but should not used as an assessment tool for this current event. There are many factors at play here including changes in mental states due to medications or lack thereof, cognitive impairments that were not present previously or even a legitimate medical condition that is new, such as a stroke or even a heart attack.

Enquiries need to be made about medical needs or mental distress and also how you in a security role may help in that situation. A quick assessment should be made and if the person appears to be “in distress” in any way, make a phone call to 911.

The term “persons in distress” is a more accurate way to describe what used to be labelled as “mental illness, or a mentally disturbed person,” a “drunk” or a person that is “stoned” etc. This doesn’t include the repeat trespasser with entitlement mentality, these are medical issues.

As laypeople, there is no way one can accurately know what is actually going on here by asking a few questions and making a few observations. The syndrome known as “excited delirium” also falls into this discussion. Is there any way to know the difference between drug induced violence and what is actually excited delirium at the time of the initial encounter? No, of course not, it’s just violence that needs to be dealt with.

What perhaps you observe on arrival is a person displaying specific signs and symptoms that may or may not be attributed to any number of things. What you do know for sure is that the person is acting in a manner that is not perhaps “normal” and/or is acting strangely. In any event they would certainly be a “person in distress.” The proper course of action is to attempt to aid the person as best you can with any reasonable medical help until an ambulance and/or police arrive.

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Several questions for consideration during the initial encounter;

Can a person with a diagnosed mental illness still commit a criminal act?

Can the person be arrested, force used if needed, handcuffs applied etc even though you suspect a mental illness?

Is it possible the person may not be charged with that criminal offence because of their mental capacity at the time?

The answer to all of these questions is yes. Security and even responding police officers cannot reasonably assess levels of comprehension. IF a police officer believes that the person may be suffering from a mental illness AND the person is a danger to themselves or others, they may “apprehend” the person, using force if needed, to take them to a doctor to be examined. (Mental Health Act s17.)

Keep in mind that the authorities found in the M.H.A. s17 is a police authority only. This said, what can a security guard do when it becomes evident that the person is possibly suffering from a mental illness? In the end do you know for sure that it is and not symptoms related to something else?

First, consider the urgency of the situation; is the person going to hurt themselves or others? Is there evidence of any criminal offence related to this? IF an arrest/detention is necessary to prevent the person from hurting themselves or others, what are the elements of those offences and is an arrest the most reasonable option? The recently added Criminal Code sections 34/35 can also aid in this regard.

Mentally ill people are well capable of committing a criminal or even violent act regardless of their mental state at the time. Security would intervene, using force if necessary, to prevent a continuation of any serious crime, especially one related to violence, and to fulfill their obligations under the Occupiers Liability Act and prevent further injuries. The arrested person is then turned over to police to be dealt with.

In any event, failing to afford a reasonable level of care for visitors to the property can lead to civil repercussions, bad press and brand damage and even injuries to persons present, certainly not a desired outcome.

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The use of Trespass Legislation as a Response Option

Case Study #1 Asante Mensah S.C.C. 2003

The appellant, a taxi driver, repeatedly “scooped” fares at the arrivals level of Pearson International Airport (Toronto) without a permit, contrary to regulations governing taxis. He continued to do so, notwithstanding having received notice under s. 3 of the provincial Trespass to Property Act (“TPA”) prohibiting entry for any purpose onto airport property. He shrugged off the fines resulting from charges of trespass. He repeatedly came back to the airport “trolling” for fares on the arrivals level despite verbal and written warnings in addition to the fines.

In an effort to control the problem of taxi drivers, including the appellant, soliciting fares without proper licences on airport premises, the airport authorities decided to exercise their power of “citizen’s” arrest under s. 9 of the TPA. A charge was laid that was appealed all the way to the Supreme Court of Canada wherein an airport inspector (security guard) approached the appellant, touched his shoulder, and informed him that he was under arrest for trespassing and that he would be detained for police arrival.

The appellant attempted to enter his vehicle to flee the scene but the inspector blocked his way. During the confrontation, the appellant shoved his car door into the person of the inspector to cause him to back off and fled. The trial judge concluded that the appellant could not be convicted of resisting a lawful arrest because the inspector used “reasonable force” to make the arrest but was not authorized to do so. (There is no statutory, written authority within ANY legislation in Canada for a citizen/agent/guard to use force to effect an arrest for trespassing.) There is also NO authority to forcibly remove the trespasser using force.)

The trial judge was of the opinion that arrest was a reasonable course of action on the facts of this case. This was not the opinion of the Supreme Court as you will see further into this document. The trial judge felt that all other attempts to secure the appellant’s compliance had failed, as he explained;

“While an inspector could swear an information causing the court to summons the alleged offender, such an approach would not satisfactorily address the blatant, ongoing commission of the offence. Likewise, a direction to Mr. Asante-Mensah to leave the property had historically proven to be a meaningless communication. The act of private arrest stops the commission of the offence and prevents its continuation.”

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The Supreme Court addressed the same issue in its summation regarding when an arrest “should only be attempted if other options prove ineffective.” The court stated that s. 495(2) Cr. C. (Police powers) provides that even a police officer shall not make an arrest with respect to summary conviction offences unless it is necessary to do so to establish the identity of the person arrested, to secure or preserve evidence of or relating to the offence, to prevent the continuation or repetition of the offence or the commission of another offence, or to secure the attendance in court of the person arrested.

Even though this is a police power, not a security/civilian one, it is mentioned because, in a civil case, it would provide a further constraint in tort on any potential abuse of s. 9. A guard who is sued in tort as a result of a trespassing arrest will called upon to demonstrate that the arrest, as well as the force used to effect it, was reasonable in all the circumstances and why they did not back off, call police, request a summons etc when they clearly knew who the trespasser was.

Conclusion of the Supreme Court

The court interpreted the word “arrest” in the context of the trespassing legislation this way: a trespassing arrest should be seen as a continuing status initiated by words accompanied by physical touching or submission and ending with delivery to the police, maintained as necessary with a force that is no more than reasonable in all the circumstances.

Whether or not a trespass arrest was “necessary” given that the offender was a repeat trespasser, was not ruled on in this case. The ruling was concerning the use of force to make these types of arrests.

The Supreme Court’s decision in this case is, however, filled with cautions about the risks of security and citizens taking the law into their own hands rather than calling police and why it shouldn’t be done. It also counters the trial judge’s opinion that “all other reasonable options had failed” indicating that there ultimately the civil courts would decide if this was the case or not.

Obviously the inspector knew who the offender was, there was police on site at the time, and a half dozen options were available that did not involve an arrest or the risks of injury through the use of physical force. The case never did go to civil court but there are enough indications in this case that a law suit against the airport inspector for unnecessary arrest would have succeeded.

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Case Study #2 -Safe Streets Act of Ontario

This legislation was brought in to deal with the “squeegee kids” you used to find at traffic lights as well as panhandlers that hung around ATM’s. So far it has had limited effect as you still see people with paper cups in hand walking amongst vehicles at traffic lights. The term “aggressive” has turned into a more passive solicitation but it has not eliminated the problem.

Under this Provincial legislation (Ontario) “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.

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

Offences: Aggressive manner prohibited. - No person shall solicit in an aggressive manner. 1999, c. 8, s. 2 (2).

Examples

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.

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Solicitation of captive audience prohibited

No person shall,

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

(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. 1999, c. 8, s. 3 (2).

Arrest without warrant

A police officer who believes on reasonable and probable grounds that a person has contravened section 2, 3 or 4 may arrest the person without warrant if,

(a) before the alleged contravention of section 2, 3 or 4, the police officer directed the person not to engage in activity that contravenes that section; or

(b) the police officer believes on reasonable and probable grounds that it is necessary to arrest the person without warrant in order to establish the identity of the person or to prevent the person from continuing or repeating the contravention.

Application to mall security, panhandling situations.

While this may, on the surface, to be the most appropriate way to deal with some undesirable persons on your property this legislation has its limitations. Here are some pro’s/con’s;

Con’s

This is a police arrest authority only. No civilian arrest is available.

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Arrest must come only after a warning is issued BY THE POLICE or if the person fails to identify themselves to the police.

The panhandler must still be present and either actively committing an offence or there is decent video of the offence, on arrival of the police. Police must then warn the person and/or there must be clear records of this having happened. Obviously if a second call comes to the police, there must be due diligence for the first call and warning.

Pro’s

This is specific to dealing with most panhandlers in a mall in most situations. If good notes and reports are kept, including police officer’s names/badge numbers and dates of warnings etc, then this could become an effective tool.

Even if the offender repeats an offence and he properly identifies himself to police, a Provincial Offences Notice Summons or long form Part 3 summons can be given in lieu of arrest and the offender evicted. The court brief needs to be completed requesting a banning notice from the mall, otherwise the offender may simply be fined, meaning they’ll probably be right back.

Case Study #3

Using section 430 (1) (d) of the Criminal Code

There are two main sections of the Criminal Code that may apply in situations where the person becomes a nuisance, or their presence becomes more of a disturbance.

Section 430 (Mischief) would normally be used by security to deal with damage to the property, however, section 430 (1)(d) states: Every one commits mischief who wilfully (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.

What does this mean?

The term “interfering, obstructs, interrupts” with any person in the lawful use of property would presume that it was in use, or about to be, and in the process of being used for the purposes which it was intended. In a mall during business hours, especially in a food court, its not difficult to see how this would fit.

There is some case law which indicates that the “enjoyment” of property is to be considered objectively, as an entitlement to exercise property rights. There are other cases which interpret “enjoyment” from a subjective standpoint, as taking pleasure from the use of the property.

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In the latter case, if an accused knew he was a nuisance or ought to have known that he was interfering with the lawful enjoyment of the property he would be convicted. This speaks to the issue of intent (mens rea). Clearly where a mental illness is present, this could be a defense to this charge.

Objectively, there is an expectation that a mall is a place where peaceable enjoyment is expected and business carried on in a peaceful fashion. Objectively, this is an easy case to support where a panhandler is making people nervous either by their actions or appearance in some cases, or both.

In short, section 430 (1)(d) of the Criminal Code, refers to a person who, driven by guilty intent, wilfully interferes, obstructs or interrupts with the use of your property. They could be subject to arrest as this is clearly a criminal offence on or in relation to property AND an indictable one.

In both cases under 494 C.C. these offences must be “found committing” however, meaning the guard must be present and an eye witness to the offence.

This may prove to be an effective section to use, however consultation with police and/or a crown attorney would be well advised prior to making any arrests.

Case Study #4

Using section 175 of the Criminal Code

Section 175 may also afford some assistance in dealing with panhandlers and repeat trespassers. Like other sections of the Criminal Code, it is dependent on the persons behaviour at the time they are observed, as well as the intent of the individual; often a difficult thing to prove. (Comments/edits added by author)

175. (1) Everyone who, not being in a dwelling-house, causes a disturbance in or near a public place,(this includes malls, that are public by right of access) by fighting, screaming, shouting, swearing, singing or using insulting or obscene language (fairly evident and observable), by being drunk, or by impeding or molesting other persons, loiters in a public place and in any way obstructs persons who are in that place, is guilty of an offence punishable on summary conviction.

“public place” includes any place to which the public have access as of right or by invitation, express or implied. (This would include a mall while it is open for business.)

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This section makes it an offence to loiter in a public place and in any way obstruct persons who are in that place. The Ontario Court of Appeal gave "loiters” its ordinary dictionary meaning of “hanging idly about a place."

It further held that if a person has some purpose for "hanging idly about" such as waiting for a spouse, then he or she cannot be said to be idling. The decision in Munroe was followed by the Ontario Court of Appeal in R. v. Gauvin (1984), 11 C.C.C. (3d) 229, at p. 232. (This is where the question of intent becomes a defense to a charge if they can prove somehow that they were on the property for what would appear to be a lawful purpose. What is or is not a valid lawful purpose is always up to the court to decide. A trespassing ban is not necessarily valid if this is the case either, something else to keep in mind.)

Thus, the word "loiter" should be given its ordinary meaning, namely to stand idly around, hang around, linger, tarry, saunter, delay, dawdle, etc. This is consistent with the meaning given to the word as used elsewhere in the Code, and with the context and purpose of other offences.

Summary: While it may seem that “causing a disturbance” is a nice fit, it is also not without its shortfalls. First, you will need to build a case and explain both “who” is being disturbed and to what impact/extent, and what specifically they were doing that caused the disturbance.

Case Study #5

Using section 30 of the Criminal Code-Breach of the Peace

What is a breach of the peace? The expression “breach of the peace” seems clearer than it is and there is a surprising lack of authoritative definition of what one would suppose to be a fundamental concept in criminal law. While every crime is considered a breach of the Queen’s peace, it is certainly not the intent of this section.

The authors of The 2012 Annotated Tremeear’s Criminal Code, Thomson Reuters Canada Ltd., Toronto address the term ‘breach of the peace’ in the following terms (at p.105):

Breach of the peace’ is not defined in the section [s.30 C.C.], or elsewhere. It occurs whenever harm is actually or likely to be done to a person, or in his/her presence to his/her property, or a person is in fear of being so harmed through and assault, affray, riot unlawful assembly or other disturbance.

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The Supreme Court has considered that a person committing a disturbance in a public place can be said to have breached the peace. See: R. v. Biron,SCC 1975. As would the participants in a consensual fight in public. See: R. v. Bergner ABCA 1987.

The common law concept of ‘breach of the peace” is not statutorily defined. However, the existing jurisprudence makes it clear that the core notion of a “breach of the peace” is a violent disruption or disturbance of the public tranquility, peace or order.”: Frey v. Fedoruk (1950). It has also been described as “unacceptable conduct that unduly disrupts and violates the public peace and good order”, without any emphasis on a particular crime: R. v. Stone (1985), 22 C.C.C. (3d) 249 (Nfld.S.C.).

A “breach of the peace” occurs where there is an actual assault, public alarm or excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence: R. v. Gosai, [2002] O.J. No. 359, 2002 CarsellOnt 370 (Ont.S.C.J.) at para. 20 Durno R.S.J.

Summary

Section 30 may also fit some situations but keep this in mind. It is an arrest/detention and use of force authority but NOT a charge. Its intent is to prevent continuations of the behaviour and permits security guards to detain for the purposes of giving them to a police officer. It will NOT prevent, in any way, the offender from returning. There is also no recourse via the courts to route this into probation orders, undertakings or other such measures to ensure compliance, even temporarily.

It may, however, if repeated, cause the police to look seriously at charges either under section 430 or 175 after other lesser measures fail. Warnings, followed by trespassing charges, followed by an arrest/detention under s30 (if the circumstances warrant it) would clearly show a pattern that “all other efforts to prevent the persons presence on your property have failed.”

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