TRY AGAIN ON PANHANDLER CASE

Red is exactly the kind of panhandler who should be barred from downtown. He’s often belligerent, drunk, loud and obscene as he sprawls across the same patch of sidewalk.

He’s made life miserable for people who work near his favoured haunt, and likely left some intimidated enough to avoid the corner. Lord knows what tourists who encounter him at the corner of Fort and Broad streets — in the heart of downtown — make of his aggressive demands for money.

All that said, it’s hard to find fault with this week’s provincial court ruling that denied the city an order barring Red — or Gerard Allan Dumont — from panhandling, on penalty of imprisonment.

The question councillors should be asking is whether police and city administrators sought proper legal advice before they headed down the wrong path in attempting to deal with Dumont.

Judge Judith Kay turned down the city’s request for an injunction barring Dumont from panhandling. The city’s case was based on the fact that Dumont had received 12 tickets for obstructing the sidewalk or aggressive panhandling in five months last year. He had ignored them, and been deemed convicted. His failure to mend his ways meant more aggressive action was needed, the city argued, and an injunction would be an appropriate step. If he failed to abide by the order, he would face up to six months in jail.

Kay accepted that Dumont has been and continues to be a nuisance. And the judge said the city has the legal ability to go to court and seek an injunction against him, with jail as the penalty for further violations.

But because the penalty is significant, so are the legal requirements. The Community Charter, a provincial law, says municipalities can seek such injunctions only when individuals have been convicted of an offence in which formal information has been sworn. The city didn’t take that step. Police simply wrote tickets, which Dumont ignored.
His lawyer argued that if they had proceeded as required by the law, Dumont might have anticipated the more serious consequences and chosen to plead not guilty. Instead, he ignored the tickets, as he couldn’t pay the fines anyway.

The stricter legal requirements before taking away someone’s freedom appear reasonable.

But in any case, they are the law.

People like Dumont cannot be allowed to take over the streets. The city has the tools to prevent that from happening. It needs to wield them more skilfully.

POLICE WELCOME PANHANDLING RULING

Judge’s findings identify need for ‘formal process’

SANDRA McCULLOCH Times Colonist

A provincial court ruling that prohibits the city from writing violation tickets to aggressive panhandlers clarifies matters for Victoria police, spokesman Sgt. Grant Hamilton said yesterday.

“It’s a good decision for us,” he said, responding to a provincial court decision by Judge Judith Kay.
Kay ruled Tuesday that Gerald Allan Dumont doesn’t have to pay $470 in fines from 12 violation tickets issued by the city between May 24 and Oct. 10, 2007.

Instead, the city will need to proceed with sworn information, commonly used in criminal cases, in order to enforce penalties as serious as six months’ imprisonment or a maximum fine of $10, 000.
The decision is not a setback for police grappling with multiple complaints of Dumont’s aggressive panhandling, said Hamilton.

“[The judge] has recognized that behaviour as a nuisance and what he’s done is nuisance based on the amount of contact he’s had with the police. We’re encouraged that that’s been recognized,” said Hamilton.

The judge has laid out how police need to proceed in future in order to have a greater impact on nuisance panhandlers, he said.

“She’s asking for a more formal process so we are going to be proceeding with that, for sure,” said Hamilton.

The legal wrangling is frustrating for businesses in the area of Fort and Broad streets, where
Dumont likes to hang out.

“It’s exceedingly frustrating, but I don’t blame the police for that,” said Sorcha McEwan, general manager of Pagliacci’s restaurant at 1011 Broad St.

He said police are forced to deal with Dumont on a criminal level because he’s fallen through the cracks of social services.

“I think our judicial system isn’t set up to cope with panhandlers, let alone the homeless,” McEwan said yesterday, adding that he personally has had no difficulties with Dumont.

“Enforcement officers use whatever methods they can, but they aren’t going to get anywhere. They’ve been trying to get this guy off that corner for years and have gotten really effectively nowhere.”

Police will continue to hand out violation tickets where they’re applicable, Hamilton said.

The decision “could be a precedent with how we deal with some of these behaviours,” he added.

Police would like to see the city amend its bylaws to allow bench warrants to be issued, giving the police authority to arrest those who’ve been issued multiple tickets and failed to appear in court.

“But so far there’s a reluctance in the criminal system here to go that route,” Hamilton said.

“There needs to be a consequence, a motivation for people to change behaviours. Right now when you get issued a ticket, you are allowed to come and defend yourself in court.

“On those ones where someone fails to show up, what is the consequence?”

The police try to balance public concerns over safety with an individual’s right to panhandle in a legal way, Hamilton said.

COURT STOPS CITY FROM BANNING PANHANDLER

Unpaid tickets don’t warrant time in jail, judge says

SANDRA McCULLOCH Times Colonist

A provincial court judge has quashed a bid by the City of Victoria to ban a “serial panhandler” from asking for money from passers-by downtown.

Gerald Allan Dumont, known as Red, was issued 12 violation tickets by the city between May 24 and Oct. 10, 2007. The $470 in fines has not been paid.

Panhandling isn’t illegal in Victoria but it is against the law to obstruct pedestrians or panhandle in an aggressive way.

The city went to court asking for an injunction that would prevent Dumont from panhandling. If he ignored the injunction, he would be arrested and face a maximum fine of $10, 000 or a six-month prison term.

The issue before the court was whether the violation tickets were legal in light of the penalty sought by the city.

Dumont’s lawyer David Lyon suggested a different process would have been more appropriate. There are two types of legal proceedings, he argued. If a person is issued a parking ticket, he does not expect to end up in jail if he does not pay it. The other process is more like a criminal procedure. The individual in question understands he might go to jail if he does not pay his fine.

The court agreed with Lyon’s argument.

“The principle of fairness is integral to our court system,” said Judge Judith Kay in the decision released yesterday. A person faced with a ticket “will decide whether to dispute that ticket with the belief that the penalty being faced is limited to the prescribed fine,” she said.

One may decide not to dispute or not to appear for the hearing, she said. “That person is presumed to know that imprisonment is not available as a result of a deemed conviction,” she said.

“It is not unusual for municipalities to commence actions alleging bylaw contraventions by the laying of an information but for some reason unknown to this court the City of Victoria has not yet chosen to do so with respect to Dumont.”

Kay acknowledged that Dumont “presents an ongoing nuisance in downtown Victoria,” having been the subject of police calls 256 times since 1997.

The city has the tools to protect the public from aggressive panhandlers, Kay said.

“However… it must proceed lawfully itself against those it deems not to be abiding by its rules.”

Lyon said yesterday he was pleased with the outcome.

“It’s no secret that if you get [a municipal ticket] they can’t arrest you if you can’t pay the fine. The fines are so small, who’s going to waste a day to go to court to fight it?

“But if you know that they might make an order that will result in six months in jail and levy up to a $10,000 fine, you might look at it just a little bit differently.”