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

AuthorNicholas Blomley
Begging to Differ: Panhandling,
Public Space, and Municipal Property
T  F A PG of BC v Vancouver case, concerning
the constitutionalit y of a City of Vancouver bylaw regulating pa nhandling,
marks the rst and to myk nowledge only time t hat the recent waveof
Canadian municipal pan handling regulat ion has received constitutional
scrutiny. It has been overshadowed somewhat by Banks, which upheld p rov
inciall awregulat ingpan handl ingandsq ueegeeing inOnta rioandt he
Adams case, involving the constitutional ity of the City of Victoria’s bylaw
regulating camping in public propert y.
YetitisworthexploringWhat isthesig nicanceoft he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 collect ion
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deservi ngofaention in
its own right. Indeed, Federated echoes themes evident in many of the other
cases reviewed in this bo ok, including the vexed and important question of
the relation between property a nd 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 propert y
is to be put. For opponents and proponents of the bylaw beyond the state, the
sidewalk is the material manifest ation of the public sphere, a site for demo
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
as circulation.
I begin by providing a brief overview of the regulat ion of panhandling
in Canada, and then note its more recent controversial history i n Vancou
ver, including the decision to launch a Charter challenge. I note the manner
in which both sides engaged in the public controversy around panha nd
ling regulation, deployed a common understanding of public property as
serving important politica l ends. Rights, whether those of the panh andler
to express herself, or the pedestrian to f reely circulate, are appropriately
exercised in such publicly owned spaces. In the th ird section of the paper,
which reviews the legal arguments made in t he case, and the ultimate judg
mentIcontrastthi sview witha very dierentrendering oft he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 panha nd
lerconsequentlywasreimaginedasneither arightsbearer norathreatto
In keeping with the theme of t his collection, I thus consider the cas e by
telling some of its stories, of which there are several. Those who lobbied the
City for panhandling reg ulation, for example, projected stories of the city’s
uncertain trajector y in the face of mass public homelessness. Protagonists
int hejudicial dispute also deployedconicting stories ofpublic property
But given that histories are necessarily t ied 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 particular ities of Canadian downtowns as platforms of consumption
andinvestmentinaneracharacterizedbytheincreasi ngmobilityofcapital
Moreover, the decision itself turns, in one sense, on competi ng representa
tions of the spaces of public property. Is a sidewalk an agora, or a conduit of
Vagrancy Law and the City
Thasbee nalongstandingconcern within Can
ada, even prior to Confederation.IntheCanadianParliamentpassed a
vagrancy act substantially sim ilar to the EnglishVagrancyActentitled
AnActRe specting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t womonthsincarcerationanda nenotex
Provisions dealing with beggi ng and vagrancy were included in the Can-
adianCriminalCodeuponitsintr oductionin maki ng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trespassi ngInthese
sections were repealed. The underlying rationale for these reforms “ . . .
wanderinginpublicw ithoutapparentmeansofs upportwasnota crime
thatvag rantswer enotcr imin alsa ndthi sproblemposedli leharmtosoci
criminal l aw was seen as the inappropriate tool.Liberalmindedreformers
alsocharacter izedthevagrancyoenceasa violationofequality rightsAs
theMinisterofJusticeOoLangarg uedinParliament
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necessa ryin ordertotr yin
someway toaai ngreater fairne ss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 gra nted to local gov
ernmentstodealwithvagranc y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 i ssue. For the Minister of
Justi ce:
the sections dea ling with vagrancy he re are being repealed a s really being
too vague for the purpose s of the criminal law. With respect to the vagrancy

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