Section 164 of the Criminal Code defines five kinds of vagrancy and makes each a summary convictions offence carrying a maximum penalty of six months imprisonment and $500 fine.
The five types of vagrancy are:
- Wandering abroad or trespassing without any apparent means of support, and being unable to justify one’s presence. This does not apply to persons who are aged or infirm.
- Begging door to door or in a public place.
- Being a common prostitute or night walker found in a public place and failing, when required, to give a good account of one’s activities.
- Being without a lawful profession or calling, and supporting oneself wholly or partly by gaming or crime.
- Loitering near school grounds, playgrounds or bathing areas. This applies only to persons who have been convicted of various sexual offences.
Most of the provisions of section 164 are unusual because they address conditions of being rather than doing.. This was pointed out by Mr. Justice Rose of the Ontario High Court as long ago as 1917. To this extent, the whole section, apart from clause e, is a departure from almost all other legislation against crime, which makes certain actions or behaviour criminal, and does not make a mere condition illegal.
Moreover, the section (except clause e) deals with various forms of being that are almost invariably the byproduct of extreme poverty. In other words, the section is directed against certain consequences of poverty. Lacking apparent means of support, and being without any lawful profession or calling, are part of the condition of the poor. Gaming, crime or merely being a nuisance are forms of behaviour fully dealt with elsewhere in the law; and it is a bad principle of law to penalize mere tendency toward any behaviour. Begging is such a natural response to the pressure of poverty and causes such trivial annoyance that one cannot apply sanctions to it without inflicting sanction on poverty itself. This section therefore discriminates against the poor. On that ground alone it is objectionable.
With particular reference to clause c, of necessity it can only apply to women and several points are necessary:
- The person concerned must, when required “give a good account of herself”. This reverses the normal onus by requiring a person confronted by police to satisfy the officer that her mere presence is justified. It is her failure to give a good account that is the essence of the offence and these words have therefore been the subject of much judicial comment. It seems that the person in question must be asked specifically to give an account of herself and in the absence of such a request, she cannot be guilty. However, once the question has been asked, she must explain and justify her presence at that particular time. As to what, in a given situation, would amount to justification is left to judicial discretion. In practice it involves the woman satisfying the police that she is not there to solicit clients.
- Nowhere in the Criminal Code is prostitution, as such, an offence. Clause c, however, strikes indirectly at prostitution by placing the onus on a woman to prove that she is not engaged in prostitution when asked. it is the failure to justify her presence that creates the offence, not the fact that she is a prostitute. Even if it was the intention of the Code to make prostitution an offence, it would not be sound public policy to strike at the byproduct rather than at substantive behaviour. If social evils such as poverty and prostitution are to be the subject of legislation, they should be dealt with directly. If poverty or prostitution are to be regarded as offences, then let Parliament say so openly.
- In our view, prostitution ought not to be an offence. We are aware that some argue that unless prostitutes are harassed and kept under control organized crime would move into the field of prostitution. We cannot agree that these two situations can be properly related. The only ground for legitimate interference would be to prevent public nuisance or disturbance of the peace.
- There is no corresponding legislation that would make a male prostitute responsible in the same way as a female. This section, and any law making female prostitution an offence, constitutes discrimination against women.
- The words “being a common prostitute” result in a strange situation. To be convicted of vagrancy, a woman must have previously committed an act of prostitution. Her first act does not count; for without previous acts of prostitution she does not fall within the definition of a common prostitute. Prostitution, as such, however, is not illegal. We therefore have an on situation where a lawful act becomes, by virtue of clause c, an ingredient to establish the crime of vagrancy.
In a major revision of the Criminal Code made in the early 1950s, the previous vagrancy sections were modified considerably. One of the modifications involved adding an exception to clause a whereby no aged or infirm person without apparent means of support who wanders abroad or trespasses and does not justify his or her presence on demand can be found guilty of vagrancy. This curious exception seems to indicate that Parliament may have some doubt about the basic soundness of this kind of legislation. An interesting philosophical problem arises: Why should an aged person be allowed to manifest one of the consequence of poverty when a young person should face the full rigour of the law?
This legislation, including particularly clause c, reflects a Calvinist ethic that can bend a little when dealing with old people but wholly neglects to take into account economic realities, including the fact that many young people find it difficult to escape the grasp of poverty. The inference is that poor people have reached that condition because of some inherent moral weakness and deserve punishment. It would seem that such legislation, in addition to being hypocritical, is no longer in tune with the times. Similar legislation has been on the books in England since the late 14th century.
The whole of section 164, and not merely clause c, should be repealed.
We have not considered, in detail, the substance of clause e, but in any case, provisions concerning such matters belong in sections dealing with sexual offences. Our only suggestion is that if clause e remains in the Code, the Crown should be required to serve notice of clause e upon all those convicted of the principal sexual offence. Otherwise, the person concerned would almost certainly be unaware of a possible prosecution for merely being near a playground.
If it can be shown that some control is necessary to maintain public order has been lost to the repeal of section 164, then attention can be given to sharpening the sections already directed to those ends. But the concept of vagrancy per se ought to disappear from the criminal law.