Is Selling Something to Drivers Passing Along the Roadway Illegal?

Soliciting From the Roadway to Drivers or People Within Vehicles That Are Upon the Roadway Is Unlawful Whereas Such Poses a Danger and May Be Contrary to Section 177(2) of the Highway Traffic Act. The Fine For Soliciting Upon the Roadway Ranges Is a Maximum of $500 For a First Offence and Up to $1,000 With the Possibility of Six Months In Jail For a Subsequent Offences. The Statutory Victim Surcharge and Court Cost Also Applies.

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A Helpful Guide For How to Determine the Applicable Penalties For Soliciting For Business Along a Roadway

Person Squeegeeing Window of Car When a person is standing or walking along the side of a road for the purpose of soliciting business from drivers passing by, such conduct is unlawful as such poses a potential danger including risks that the person soliciting may be accidentally struck by a motor vehicle. There is also a risk that a driver may suddenly slow, change lanes, and stop, to make a purchase, thereby surprising other drivers and causing an accident.

The Law

As prescribed by section 177(2) of the Highway Traffic Act, R.S.O. 1990, c. H.8, attempting to sell goods or services to those using the roadway is an offence and subject to the applicable penalties described within section 177(4) of the Highway Traffic Act. What is actually defined as the "roadway" requires review of the precise definition which is found at section 1 of the Highway Traffic Act. Specifically, section 177(2), section 177(4), and section 1 of the Highway Traffic Act state:

Soliciting business prohibited

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.

(4) Every person who contravenes subsection (2) is guilty of an offence and is liable,

(a) on a first conviction, to a fine of not more than $500; and

(b) on each subsequent conviction, to a fine of not more than $1,000 or to imprisonment for a term of not more than six months, or to both.

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;

Exceptions
Emergencies

As with many laws, there are various exceptions that apply for specific circumstances.  Of the exceptions to the offence of soliciting for business upon a roadway, such includes section 177(3) of the Highway Traffic Act which allows for the solicitation of towing or repair services, among other things, in an emergency situation.  Such could arise due to a mechanical break-down, flat tire, or other circumstances, including perhaps such concerns as a serious weather event, where a vehicle, and thus the occupants of the vehicle, become stranded.  In such emergency circumstances, the offering of goods or services, as a form of emergency assistance is permitted.  Specifically, section 177(3) of the Highway Traffic Act states:

Exception, emergencies

(3) Subsection (2) does not apply to the offer, sale or provision of towing or repair services or any other commodity or service, in an emergency.

Activities of Charities

Another exception to the offence of solicitation for business upon a roadway is the exception within section 177(3.1) of the Highway Traffic Act that allows certain registered charities to perform fund raising activities.  Conditions apply whereas the charity must be a genuine charitable organization as registered per the Income Tax Act, R.S.C. 1985, c. 1, 5th Supp., must be performing the fund raising activities upon a roadway with a speed limit of fifty (50) kilometres per hour or less, and such activities must be permitted by local by-law.  Specifically, section 177(3.1) of the Highway Traffic Act says:

Permitted fund-raising by charities

(3.1) Subsection (2) does not apply to fund-raising activities that meet the following conditions:

1. They are conducted by a charitable organization registered under the Income Tax Act (Canada) on a roadway where the maximum speed limit is 50 kilometres per hour.

2. They are permitted by a by-law of the municipality in which the activities are conducted.

Towing Service, removal of vehicles at accident

Lastly, per section 177(5) of the Highway Traffic Act, there is also an exception to soliciting for business that allows tow truck operators to attend an accident scene subject to the conditions specified within section 171 of the Highway Traffic Act, being that, among other things, the tow truck, when on a roadway classified as a "King's Highway", be stopped or parked at least two hundred (200) metres from the accident scene and that the solicitation for towing services also be conducted at least two hundred (200) metres from the accident scene.  Accordingly, the exception in section 177(5) should be read in combination with section 171 as well as the definition of "King's Highway" per section 1 whereas such sections of the Highway Traffic Act each respectively state:

s. 171 (tow truck services) not affected

(5) Nothing in this section affects the operation of section 171.

Tow truck services

171 (1) No person shall make or convey an offer of services of a tow truck while that person is within 200 metres of,

(a) the scene of an accident or apparent accident; or

(b) a vehicle involved in an accident,

on the King’s Highway.

Idem

(2) No person shall park or stop a tow truck on the King’s Highway within 200 metres of,

(a) the scene of an accident or apparent accident; or

(b) a vehicle involved in an accident,

if there is a sufficient number of tow trucks already at the scene to deal with all vehicles that apparently require the services of a tow truck.

Idem

(3) Subsections (1) and (2) do not apply to a person who is at the scene of the accident at the request of a police officer, an officer appointed for carrying out the provisions of this Act, a person engaged in highway maintenance or a person involved in the accident.

King’s Highway” includes the secondary highways and tertiary roads designated under the Public Transportation and Highway Improvement Act

Actual Cases

An interesting case involving soliciting for business was which was R. v. Banks, 2007 ONCA 19 as reviewed and decided upon by the Court of Appeal.  The case involved issues beyond simply the soliciting for business, whereas the accused persons admitted the facts in the case; however, the legal issue raised was whether the restrictions within section 177 of the Highway Traffic Act, being the restrictions against soliciting for business, infringed upon the Charter of Rights and Freedoms, and specifically, among others, section 7 of the Charter.  Specifically, the issue raised was the constituationality of restrictions upon the right to earn a living and therefore an impairment to life, liberty, and security of person.

In answering the question of whether section 177 of the Highway Traffic Act infringed upon the rights provided by section 7 of the Charter, the Court of Appeal said:

[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 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 on 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 CanLII 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.

[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 CanLII 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 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 CanLII 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.

In addition to arguments that section 177(2) of the Highway Traffic Act was a breach of section 7 of the Charter of Rights and Freedoms, other sections of the Charter were also argued as being breached; however, the Court of Appeal disagreed.

Summary Comment

The Highway Traffic Act prohibits soliciting of business upon the roadway subject to a few exceptions including, and subject to certain conditions, soliciting due to an emergency, soliciting for a registered charity, and soliciting for towing services at an accident scene.  It is interesting to note that the constitutionality of the prohibition against soliciting for business upon the roadway was challenged and upheld by the Court of Appeal.


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