Begging to Differ: Panhandling, Public Space, and Municipal Property1

• Author: Nicholas Blomley
• Pages: 393-424

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Begging to Differ: Panhandling,

Public Space, and Municipal Property

NicholasBlomley

Introduction

T  F A PGof BC v Vancouver case, concerning

the constitutionality of a City of Vancouver bylaw regulating panhandling,

marks the rst and to myk nowledge only time t hat the recent waveof

Canadian municipal panhandling regulation has received constitutional

scrutiny. It has been overshadowed somewhat by Banks, which upheld p rov

inciallawregulatingpanhandlingandsqueegeeinginOntarioandthe

Adams case, involving the constitutionality of the City of Victoria’s bylaw

regulating camping in public propert y.

YetitisworthexploringWhatisthesignicanceofthecasetoadiscus

sionof propert y in Canadian law At its core is a conict over the nature

and function of public property. While several chapters in this collection

track the state’s relationship to private ordering (Phillips and Martin, Har ris,

Kaplinsky), the dominant focus tends to be private property itself. However,

publicpropertyisfarfromaresidualconcernbutdeservingofaentionin

its own right. Indeed, Federated echoes themes evident in many of the other

cases reviewed in this book, including the vexed and important question of

the relation between property and social power, or the contested nature of

the publ ic interest.

More immediately, I want to argue that Federated reveals an important

and often overlooked tension concerning the uses to which public property

ﾇﾍﾈNicholasBlomley

is to be put. For opponents and proponents of the bylaw beyond the state, the

sidewalk is the material manifestation of the public sphere, a site for demo

craticdialoguetheproductionofcitizenshipandtheexerciseofrightsThe

sidewalk, therefore, is to be understood as public space. Conversely, for the

City (and, ultimately, the court), the sidewalk is municipal space, to be gov

ernedaccordingtoanarrowlydenedpublicinterestthatbeingunderstood

as circulation.

I begin by providing a brief overview of the regulation of panhandling

in Canada, and then note its more recent controversial history in Vancou

ver, including the decision to launch a Charter challenge. I note the manner

in which both sides engaged in the public controversy around panhand

ling regulation, deployed a common understanding of public property as

serving important political ends. Rights, whether those of the panhandler

to express herself, or the pedestrian to freely circulate, are appropriately

exercised in such publicly owned spaces. In the third section of the paper,

which reviews the legal arguments made in t he case, and the ultimate judg

mentIcontrastthisviewwithaverydierentrenderingofthesidewalks

of Vancouver. Viewed as municipal property, the City successfully argued

for a view of its sidewalks as serving functional, apolitical ends, notably the

facilitation of circulation, and the prevention of obstruction. The panhand

lerconsequentlywasreimaginedasneitherarightsbearernorathreatto

rightsbutsimplyasapotentialobstacleIconcludewithsomereectionson

theprevalenceofthislaerviewanditsbroaderimplications

In keeping with the theme of this collection, I thus consider the case by

telling some of its stories, of which there are several. Those who lobbied the

City for panhandling regulation, for example, projected stories of the city’s

uncertain trajectory in the face of mass public homelessness. Protagonists

inthejudicialdisputealsodeployedconictingstoriesofpublicproperty

But given that histories are necessarily tied up with the spaces and places

of social and legal life, I also point to the important spatial dimensions at

issue in these various nar ratives. The conjunction of circumstances that gave

rise to the regulation, at issue i n Federated, can be understood with reference

to the particularities of Canadian downtowns as platforms of consumption

andinvestmentinaneracharacterizedbytheincreasingmobilityofcapital

Moreover, the decision itself turns, in one sense, on competing representa

tions of the spaces of public property. Is a sidewalk an agora, or a conduit of

circulation?

BeggingtoDierPanhandlingPublicSpaceandMunicipalPropertyﾇﾍﾉ

Vagrancy Law and the City

ThasbeenalongstandingconcernwithinCan

ada, even prior to Confederation.IntheCanadianParliamentpasseda

vagrancy act substantially similar to the EnglishVagrancyActentitled

AnActRespectingVagrants by which those “persons who . . . wander about

and beg . . . shall be deemed vagrants, loose, idle or disorderly persons.”

Oendersweresubjecttouptotwomonthsincarcerationandanenotex

ceedingBytheperiodofincarcerationwasincreasedtosixmonths

Provisions dealing with beggi ng and vagrancy were included in the Can-

adianCriminalCodeuponitsintroductioninmakingitanoencetobeg

“from door to door in a public place” and to not have any apparent means

ofsupportwhenfoundwanderingabroadandtrespassingInthese

sections were repealed. The underlying rationale for these reforms “ . . .

wastheoverwhelmingbeliefthatvagrancyandinparticularbeggingand

wanderinginpublicwithoutapparentmeansofsupportwasnotacrime

thatvagrantswerenotcriminalsandthisproblemposedlileharmtosoci

etyifanyIfhoweverthesemaersneededtobeaddressedlegislativelythe

criminal l aw was seen as the inappropriate tool.”Liberalmindedreformers

alsocharacterizedthevagrancyoenceasaviolationofequalityrightsAs

theMinisterofJusticeOoLangarguedinParliament

Theoenceofvagrancyhasbeenappliedinmanydierentwaysinthelegal

systemHerewehaveanoencewhichhasbeenapplieddierentlyto

the rich and to the po or in our society and we propose to move against this

dierenceinapplicationThechangesarenecessaryinordertotryin

somewaytoaaingreaterfairnessinourlawasappliedtotheprivileged

and to those who are less priv ileged, to the rich and to the poor.

The Parliamentary debates also reveal the licence granted to local gov

ernmentstodealwithvagrancyVagrancyitwasassertedwasnotamaer

of criminal law. As such, municipalities and provinces were said to be bet

ter suited to dealing with the local vagaries of the issue. For the Minister of

Justice:

the sections dealing with vagrancy here are being repealed as really being

too vague for the purpose s of the criminal law. With respect to the vagrancy

oenceofbeggingitisnotconsideredthatthisisapropermaertocontinue