II. The endogenous–exogenous connection of Law's image

The images of, and imaginations about, the Law, the vagrant, and their connection therein, as noted above, occupy a central place in this narrative. Two sets of images are inextricably linked to the discursive production of vagrancy, its eventual death and concomitant refashioning. The first is exogenous to this thinking and being, that is, the vagrant – images which are, however, a product of legal thought itself, which are cemented in the social and cultural imaginary with life of their own. In other words, the vagrant (and, by extension, the problem of vagrancy), is, first and foremost, a legal production, one created through legal thought.Footnote ⁹ What is produced, however, is much more than merely a problem to the social and moral order as the vagrant was said to be in manifold ways. Rather, this production simultaneously created powerful images of, and imaginations about, the vagrant, ones that transcend time and space, evinced, for example, in the various images of vagrants and their lifestyles, from the romanticisation of, and nostalgia that went hand in hand with, a nomadic lifestyle, to their conniving tricks and immoral behaviour or, to their forlorn looks (see Ribton-Turner, Reference Ribton-Turner1887 and Aydelotte, Reference Aydelotte1967 [1913], which contain numerous examples of such images). In other words, these images, which would take on lifelike proportions, would sustain the discursive power of law's thinking and its products, here, the vagrant. As I seek to explicate in what follows, it was these very images, entrenched in the social and cultural imaginary, that the refashioning of vagrancy would need to come to terms with.

The second set of images is endogenous to legal thought, that is, the Law – images which are carefully crafted, buttressed, upheld and continuously narrated by the Law itself; that is, Law's narrative of itself or, the ways the Law imagines itself. The Law is constituted by particular principles which are crucial to its existence, essentially forming its foundation – despite being, at times, unable to follow through in practice. The binary logic of Law, one that clearly spells out what it stands for – namely, ‘legal’ versus ‘illegal’ – is one example (see Ranasinghe, Reference Ranasinghe2014). In addition, principles of equality, fairness, impartiality and due process are also important to its foundation. All these values can be reduced to an overarching principle, namely, justice (see Sarat, Reference Sarat2001; Constable, Reference Constable2011), and this is even after Law's inextricable equation with violence, both in form and substance – that is, the Law, born of violence, is itself said to be violence (see Benjamin, Reference Benjamin, Jephcott and Dmetz2007 [1921]; Cover, Reference Cover1983; Reference Cover1986; Derrida, Reference Derrida and Quaintance1990). Yet, even after an acknowledgement of this violence – now a basic tenet of, and taken for granted fact about, the Law and the legal institution – Marianne Constable (Reference Constable and Sarat2001), among others (see Fitzpatrick, Reference Fitzpatrick and Sarat2001), seeks to highlight the progressive and productive capacity of the Law, which she locates in its quest for justice; the Law itself being just(ice), as her reading has it, one that reinforces a specific image and imagination about the Law and what it stands for, an idea which can be traced to the natural law theory and liberalism of John Locke (Reference Locke and Cox1982 [1689]; cf. Hobbes, Reference Hobbes1985 [1651]). What is necessary to underscore for present purposes is that the master narrative of Law is, first and foremost, justice, and, as I explicate below, it is this image and imagination about it that shapes everything that is funnelled into it. In the case of the refashioning of vagrancy, then, I suggest that the very images created by historical vagrancy law – which took on a life of their own in the social and cultural imaginary – were precisely the very images that required attention. This was necessitated because of Law's image of justice which moved swiftly to rectify, according to its own logic, the very problems it had, if not created, then, at least, contributed to. In what follows, I explicate how the semantic legal formatting of vagrancy was designed to distance itself from these historical and powerful images of vagrancy and vagrants.

III. The constitutionality of vagrancy

Historical vagrancy law had long been the subject of scathing criticism and contempt in the legal community, and certainly so in the US since at least the early to mid 1900s (e.g. Lisle, Reference Lisle1914; Hall, Reference Hall1936; Sherry, Reference Sherry1960; Douglas, Reference Douglas1960; Dubin and Robinson, Reference Dubin and Robinson1962; Amsterdam, Reference Amsterdam1967). In the US, the defining moment in the history of the refashioning of vagrancy is found in Papachristou et al., v. City of Jacksonville (1972),Footnote ¹⁰ in which the Supreme Court ruled that a Jacksonville, Florida, vagrancy ordinance was ‘plainly unconstitutional’ because it was overly vague and broad (Papachristou et al., v. City of Jacksonville, 1972, p. 848) – the two chief characteristics equipping vagrancy with its far-reaching powers. This was a monumental ruling and it set the stage for the invalidation of similar ordinances across the country (see Kelling and Coles, Reference Kelling and Coles1996, pp. 51–60). During this time, vagrancy legislation was also coming under scrutiny in Canada. The courts had clearly and repeatedly raised the problematic nature of vagrancy law since at least the early 1900s, evinced, for example, in Justice Galt's summary of the law as it was in the late 1920s: ‘It seems curious that such an offence as vagrancy should require nine separate provisions occupying nearly two pages of the Cr[iminal] Code in order to define it’ (R. v. Rosenfeld, 1928, p. 306)Footnote ¹¹ – a significant statement critical of the vast powers of vagrancy constituted by its vagueness and breadth.Footnote ¹² For all this opining, however, the definitive moment in this history came not through the courts, but through parliament, which, save for two vagrancy offences, abolished the rest from the Criminal Code (hereinafter Code) during the sweeping reforms to the criminal law in 1972.Footnote ¹³

In Canada, the demise of vagrancy was a rather swift and straightforward affair, one, however, that had to come to terms with the historical and powerful images of, and imaginations about, the vagrant. Historically, it was widely believed that vagrants were a grave threat to the social and moral fabric of the country. They were equated with a criminal class and variously referred to as ‘professional criminal[s]’ (Thorner and Watson, Reference Thorner, Watson and Knafla1985, p. 226), ‘rogues in idleness’, ‘worthless drunkards’, ‘outcasts’ and ‘morally depraved’ (Bellomo, Reference Bellomo1972, pp. 12–13). These imaginations, produced through legal thought and buttressed in the social and cultural imaginary, went hand in hand in further fuelling the need for regulating their problematic ways and regulating them in a particular manner. By the time under discussion, in the early 1970s, however, vagrants were no longer viewed in such problematic ways. Their images had been softened, so to speak, so that they were thought of more as an inconvenience or a nuisance, than a social and moral threat. Hence, the coercive and punitive aspects of the criminal law were believed to be inappropriate, that is, too harsh, to regulate the vagrant. In explaining the rationale that underpinned this shift, the Canadian Minister of Justice, Otto E. Lang, noted that ‘the sections dealing with vagrancy here are being repealed as really being too vague for the purposes of the criminal law’,Footnote ¹⁴ a statement that clearly shows the mindfulness of just how problematic the law was with regard to meeting constitutional muster, in the same manner, for example, that it was raised in Papachristou et al.. It was exactly for this reason that the Minister further noted, with respect to the offence of begging, that ‘it is not considered that this is a proper matter to continue as part of the criminal law’. These comments are useful for locating the place of historical vagrancy law vis-à-vis Law's image, one of and about justice, best evinced in the Minister's comment that the ‘changes are necessary in order to try in some way to attain greater fairness in our law … ’ . In other words, it was precisely this image of Law, one about justice, of which fairness is an important plank, that necessitated recasting the problematic nature of vagrancy, and, as well, reassessing the legal apparatus which both constructed the problem and concomitantly brokered a solution, that is, the criminal law.

It is in this history, during this moment, when the veritable demise of vagrancy was unfolding and plainly visible, that the very seeds for its refashioning, which would take place some twenty years later, were (perhaps, unintentionally) being sown. Thus, immediately after recognising and acknowledging the inappropriateness of the criminal law to attend to an offence such as begging, the Minister added: ‘We believe that if legislation is needed in this regard, it would be best to have it by way of municipal by-law or provincial legislation.’Footnote ¹⁵ Not once during this debate was there acknowledgement, either implicitly or explicitly, that the offences of vagrancy were unproblematic. This is aptly illustrated, for example, in the reforms to the offence of prostitution, which, even though it was removed from the vagrancy section of the Code, remained a criminal offence through the new offence of solicitation in public for the purposes of prostitution.Footnote ¹⁶ Rather, what was problematic was the law itself, or, at least, the specific approach taken via a particular law, in this case, the criminal law. In other words, parliament was reframing the legal category of vagrancy, rather than stating that vagrancy itself was unproblematic. Here, again, the reframing of vagrancy in this specific and precise manner – as a problem to local communities requiring legal remedy, though of a substantially less punitive kind – illustrates the Law's image at work in recasting the problem and the solution to it. It is with this legal and semantic reformatting that the demise of vagrancy and its concomitant refashioning was undertaken, though with regard to the latter, it would take some twenty years to fully materialise, or, at least, become clearly visible.

IV. Reformatting legal semantics: the Law's imagination of the vagrant

Perhaps the clearest example that illuminates the refashioning of vagrancy is found in the semantic legal reformatting of the labels ‘vagrancy’ and ‘vagrant’. The ‘verb’ vagrancy – in the sense of ‘committing’ vagrancyFootnote ¹⁷ – and, more importantly, the noun ‘vagrant’ (or, in the original Francophone terminology, ‘vagabond’, which later influenced the English labelling), are replete in historical English law and can be traced to the mid fourteenth century (Statute the Second, 1350–1351) and visible in the famous ‘Vagrancy Act’ of 1824 which consolidated all previous legislation (An Act for the Punishment of idle and disorderly Persons, and Rogues and Vagabonds, 1824).Footnote ¹⁸ Between these, some 500 years, virtually every piece of vagrancy law referred to ‘vagrants’, ‘vagabonds’, ‘rogues’ or ‘beggars’, not just in the text, but in the title itself.Footnote ¹⁹ The foregoing not only highlights that vagrancy was a significant problem facing English society between feudalism and late-modernity – evinced in the voluminous literature which has documented the myriad ways in which it was deemed problematic (e.g. Fuller, Reference Fuller1936; Aydelotte, Reference Aydelotte1967; Beier, Reference Beier1985; Pound, Reference Pound1971) – but that the official response to it, that is, the law, was laden with references to ‘vagrancy’ and ‘vagrant’. In other words, these labels were in vogue and more than fashionable during these times, and this served to further cement their social and cultural status and symbolism. In other words, these labels cast powerful images and imaginations about the problems facing the nation and the attendant solutions, that is, the law.

The social and cultural status of these labels also carried a powerful stigma. Vagrancy’, as C. S. L Davies (Reference Davies1966, p. 535) puts it, ‘was a useful emotive concept …’, and in a society that prided itself on reputation and honour (e.g. Sharpe, Reference Sharpe and Bossy1983; Fox, Reference Fox1994; Dabhoiwala, Reference Dabhoiwala1996) – as the basis, for example, upon which employment was furnished or, oaths were sworn – these labels had severe and long-lasting repercussions. This was especially so when remembering that a common punishment for ‘vagrants’, ‘rogues’ and ‘idle persons’, beginning in the mid sixteenth century, was branding. For example, a law passed in 1547 mandated that the letter ‘V’, connoting ‘vagrant’ or ‘vagabond’, be branded on the offender's breast (Ribton-Turner, Reference Ribton-Turner1887, pp. 89–91) and a law passed in the early 1600s, legislated that the letter ‘R’, connoting an ‘incorrigible or dangerous rogue’, be branded on the offender's left shoulder.Footnote ²⁰ It was also common for markings to be made in other ways. For example, a law passed in 1572 called for those convicted of vagrancy to be burned through the gristle of the right ear (see Ribton-Turner, Reference Ribton-Turner1887, p. 106). These legal practices were designed to literally mark the body. Michel de Certeau (Reference De Certeau and Rendall1984 [1980], p. 139), for example, writes of the inscriptions of the Law, stating that ‘There is no law that is not inscribed on bodies. Every law has a hold on the body. The very idea of an individual that can be isolated from the group was established along with the necessity, in penal justice, of having a body that could be marked by punishment …’ – ‘The body is’, as Michel Foucault (Reference Foucault and Rabinow1984 [1971], p. 83) puts it, ‘the inscribed surface of events’. The inscriptions on the vagrant body, however, were not simply figurative, but literal, visible and permanent markings which carried with them powerful images and gave rise to even more powerful imaginations. First, the vagrant body was highlighted and distinguished from other, ‘respectable’ bodies, so that these markings inscribed and sustained the stigma of vagrancy. Second, and related, the image of the Law was grafted onto the body as well, so that the vagrant permanently carried with him or her a reminder of what running afoul of the Law would mean and look like. These markings carried with them not just the visible punishment that was administered, but also a reminder that society would not condone, nor tolerate, deviations from the norm. As de Certeau (Reference De Certeau and Rendall1984 [1980], p. 139) notes, the ‘law “takes hold of” bodies in order to make them its text’. This text, I suggest, gives rise to a powerful image and imagination. With respect to the vagrant and his or her travails with the Law, this image is put on permanent display. Additionally, and more importantly, these markings themselves were, just like, and because of, the often nomadic lifestyle of the vagrant, mobile. This meant that wherever the vagrant went, the markings on his or her body went with him or her as well, and functioned as an ever-present reminder not just of the power of the state, but also of the infamy of the vagrant, which only served to further cement the vagrant in the social and cultural imaginary. The powerful images produced by, and imaginations evoked because of, these markings, then, cannot be neglected in understanding the refashioning of vagrancy.

A marked and important difference is clearly noticeable today. Certainly these labels still exist and are in use in common parlance, even in media coverage – as when, for example, The Toronto Star likened ‘Walking to work’ to ‘negotiating an obstacle course of vagrants and beggars’, in its description of the problematic nature of begging.Footnote ²¹ However, these usages have all but disappeared in the legal realm. In other words, the vagrant and vagrancy certainly exist in the social and cultural imaginary, but no such person, nor problem, is to be found in contemporary law. This point was very clearly, explicitly and forcefully repeated during the reforms in the early 1970s. Yet, it is worth remembering that the disappearance of the categories ‘vagrant’ and ‘vagrancy’ was not a matter of choice but one of necessity. That is, the ‘offence’ of vagrancy and the noun vagrant were fraught with problems, legal problems to be specific, because they harkened back to a time when virtually everyone and everything was funnelled into it. Naturally, this meant that the concept itself was vague and overbroad, aptly evinced in the reasoning of Justice Douglas in Papachristou et al.. Thus, while similar problems of the past still needed attending via the law – just as the Minister of Justice, Lang, had noted and foreshadowed in the early 1970s – this required reframing the legality of these issues in order to pass constitutional muster, a quest for fairness, as the Minister put it, one that needed to be aligned with the imagination of Law and what it stands for. This is precisely what spawned the death of the vagrant and the problem of vagrancy and concomitantly gave birth to its very rise, this time, however, under the category of public disorder. This is clearly visible through a specific offence of vagrancy, namely, begging, and, in what follows, I draw on the ‘life’ of the noun ‘beggar’ and the verb ‘begging’ to shed light on the manner in which this problem has been reformatted semantically in and through the law.

V. Re-imagining begging

Like the terms ‘vagrant’ and ‘vagrancy’, the terms ‘beggar’ and ‘begging’ are steeped in the social and cultural imaginary and still found in common parlance, as the earlier quoted description of begging in The Toronto Star demonstrates. Another example, from a local paper in Vancouver, The Province, serves as an entry point into explicating what is unfolding today. That paper gave a hearty ‘Thumbs down’ to ‘bullying beggars’.Footnote ²² What is referenced is not just the subject, that is, the noun ‘beggar’, but a particular action as well, so the condition of being is paired with the adjective ‘bullying’, to construct the problem. This pairing is significant: in the social imaginary, the condition of being is no longer sufficient for pejoration, as it was in the past – in the way that the status itself sufficed, evinced, for example, in the contiguity between mendicant and mendacity. Equally important, this shift is illustrative of a trend where the social imaginary is mimicking what is unfolding in the law, where the problematic nature of these historical conditions are said to require justification. Yet, this justification cannot be achieved by simply invoking the past; in fact, it requires a clear and explicit distancing from the past. I situate the problem of the beggar and begging in historical context to develop this argument.

Historically, vagrancy law did not prohibit begging as a whole. There are numerous examples of persons – and, not just the indigent – who were permitted to beg for alms as long as they had a licence. This licence was furnished on the basis of need as determined by particular social contexts and conditions, and this determination was made by members of the community considered to be of respectable ilk, such as magistrates, justices of the peace or clergymen. Thus, An Act respecting Vagrants (1869)Footnote ²³ – the first national legislation on vagrancy in Canada, which, after Confederation, in 1867, consolidated the disparate municipal by-laws and provincial legislation into a unified law – permitted ‘all persons’ considered to be ‘a deserving object of charity’ to ‘wander about and beg’ or, ‘go about from door to door, or place themselves in the streets, highways, passages or public places to beg or receive alms’, as long as they had a signed certificate so authorising them.Footnote ²⁴ Such allowances have a longer and robust history as English vagrancy law attests to. What is interesting about these allowances is that it was not just the poor who were found to be in need. Thus, An ACTE concnyng punysshement of Beggers & Vacabunds, 1530–1531, permitted myriad persons, such as scholars from the universities of Oxford and Cambridge (s. 4), shipmen who professed to have suffered loss during their voyage (s. 4) and persons released from jail requiring assistance to make their way home (ss. 11 and 14), to beg for alms provided that they were so authorised by licence.Footnote ²⁵

The foregoing illustrates the basis upon which the distinction between those deemed to require assistance and those who did not was determined, one carved along the lines of deservedness. Thus, in An Act respecting Vagrants, 1869, only those who were ‘deserving object[s] of charity’ were permitted this allowance, which essentially led to a distinction between the ‘deserving’ and ‘undeserving poor’, a distinction that was largely cemented in the social and cultural imaginary beginning in the 1820s (Baehre, Reference Baehre1981, pp. 67–69; Murray, Reference Murray, Pue and Wright1988, pp. 182–183). In the English context, however, this distinction can be traced to the sixteenth century. This distinction, however, utilised different labels, that is, between the ‘impotent’ and ‘able-bodied’ or ‘sturdy’ beggar.Footnote ²⁶

This history, albeit briefly narrated, is important to locate the current climate of begging. In this climate of public disorder, of which begging is an important concern (see Wilson and Kelling, Reference Wilson and Kelling1982), the labels ‘beggar’ and ‘begging’ are fraught with numerous legal and technical concerns primarily because of their close connection to the past, a past that permitted, even celebrated, overly broad and vague offences that were part and parcel of the very constitution of vagrancy – ‘the legacy of … vagrancy …’ as George Kelling and Catherine Coles put it (Reference Kelling and Coles1996, p. 60; emphasis added). The current efforts to regulate begging have sought to extricate themselves from this chequered past and the principal means by which this has been accomplished is through the disuse of these labels which have now all but disappeared from the law. This has led to the reliance on the labels ‘panhandler’ and ‘panhandling’ (see the next section).

There is another important and related explanation for the attempted extrication from the past. The labels ‘panhandler’ and ‘panhandling’ explicitly separate themselves from the historical distinction carved between the deserving and undeserving poor, a distinction that was based solely on the status of the supplicant (for example, in the English context, whether the mendicant was ‘sturdy’ or ‘abled-bodied’ versus ‘impotent’). This, however, is not the most troubling aspect about historical vagrancy law, because, it could be argued, for example, that it was quite laudable for a law that was constitutively punitive to not only be privy to the welfare of those who were in need of assistance, but also seek to facilitate it. Rather, its infamy lies in the widely held belief that historical vagrancy law regulated status, rather than action, and that a guilty mind (the mens rea) was deemed irrelevant for the purposes of culpability. The veracity of this ‘accusation’ is irrelevant for the present discussion (see, however, Ranasinghe, Reference Ranasinghe2010a, pp. 71–79, where I have discussed this in great length). Here, I simply wish to underscore that historical vagrancy law is inherently and inextricably tied to this infamy and it is this infamy that the current attempts to address public disorder need to separate themselves from. The labels ‘panhandler’ and ‘panhandling’, then, bereft of such historical infamy, would work well to create distance between the past and the present.

This distancing, however, is absolutely crucial because, to a large extent, the contemporary regulation of begging could only work, legally, that is, through a different type of distinction that would bring to light the need for regulation itself, and this could only be achieved by distinguishing a specific type of begging as particularly problematic – in fact, as will become apparent shortly, this necessitated not just the disuse of the label begging, but panhandling itself. The need for this distinction is, again, a product of history, given that begging was decriminalised in 1972,Footnote ²⁷ though, as noted above, room was left open for its regulation via municipal by-laws or provincial legislation. This regulation, however, would need to be specific and tailor-made and geared towards problematic action. This was achieved, first, through the distinction carved between aggressive and passive panhandling, and, later, obstructive and passive solicitation. The path towards these distinctions illuminates the refashioning of vagrancy and the struggles to re-imagine itself against the backdrop of Law's image.

VI. From begging to panhandling, to soliciting: the legal regulation of public disorder

The cities of Ottawa and Oshawa were two of the first in Canada to enact public nuisance by-laws to deal with a plethora of public disorders, including begging. Joe Hermer's (Reference Hermer1997) discussion of Oshawa's The Nuisance By-law (City of Oshawa, 1994)Footnote ²⁸ provides important glimpses into the thinking of city councillors at the time the by-law was under consideration. At the very outset, concerns over the constitutionality of the by-law dominated proceedings (Hermer, Reference Hermer1997, pp. 174–179). With respect to loitering, Hugh Couch, the City Solicitor, was ‘not impressed with the idea of a no-loitering by-law; his legal opinion was that such a by-law would be ultra vires …’ (p. 175), and this was, according to him, despite the ‘general power [of the city] to make [such] regulations’ (quoted on p. 175). In other words, Couch feared that an anti-loitering by-law would fall within the domain of the criminal law, a domain which the city did not have jurisdiction over (p. 175). To make matters worse, the Code already criminalised loitering and, therefore, banning loitering would simply be redundant (p. 175). The impasse between Couch's legal opinion and that of at least one councillor who was heavily pressing for the by-law was at a palpable stalemate, but the fate of the by-law took a fortuitous turn when Couch became ill and his files were turned over to the Assistant City Solicitor, Rosalie Evans, who, at the prodding of this same councillor, ‘continued to press this matter’ (p. 177). Evans analogised the proposed loitering ban to the provincial government's power to regulate speeding, but, in noting that the city could also set a speed limit in the downtown area, went onto make a case for how concurrent bans between the city and the federal government could mutually co-exist as long as the former did not contravene the latter (pp. 178–179). The ultra vires issue was settled as such and the city proceeded to draft the by-law.

While Oshawa's The Nuisance By-law is unique in many regards (see below), in at least one way, what transpired in Oshawa is very similar to the experiences of numerous other cities, such as Vancouver and Winnipeg, which have similarly addressed public disorder by enacting by-laws (see Kelling and Coles, Reference Kelling and Coles1996, pp. 195–222, for similar concerns in various US cities). The processes involved in enacting these by-laws, however, have been exceptionally challenging (see Ranasinghe, Reference Ranasinghe2010b, pp. 330–334). How difficult a situation this was (perhaps, still is), is aptly illustrated in the city of Toronto's thwarted attempt, during the mid to late 1990s, to enact a by-law to regulate, among other things, squeegeeing and panhandling. This by-law did not materialise because the city was well aware that panhandling could not be banned as a whole. Additionally, in order to ban or regulate squeegeeing, the city would need to construct squeegeeing as a nuisance, but do so in a precise manner that articulated how this was so (Ruppert, Reference Ruppert2006, pp. 71–76). The ensuing discussions, however, ‘only led to further ambiguities regarding how such a condition [of nuisance] could be measured’ (p. 74), leading to frustration and, eventually, abandonment of the idea. To a large extent, what was happening elsewhere in the country, notably in Winnipeg and Vancouver – where the by-laws addressing public disorder were being subjected to legal challenges during the mid 1990s – appears to have heavily influenced the decision taken by the city.

The by-law enacted in Oshawa is interesting in this regard, because despite the extant concerns over the constitutionality of the regulation of public disorder, it was drafted so broadly that it is eerily reminiscent of, and resembles, historical vagrancy law. In particular, it is worth noting that the by-law bans begging as a whole, a remarkable feat given that begging had been decriminalised some twenty years earlier. What is more remarkable is that the by-law, like historical vagrancy law, explicitly uses the words ‘begging’ and ‘to beg’ to conceptualise the offence. Such a practice, however, would be an aberration, as other cities quickly recognised the importance of distancing any effort to regulate public disorder from its historical predecessor, that is, vagrancy law, and would, therefore, conceptualise the problem as one of and about ‘panhandling’. However, even this effort, as will be apparent, would not be enough to fully distance these efforts from the chequered history of vagrancy.

Despite the sweeping nature of Oshawa's by-law, the city was more than mindful that there was one area that it simply could not traverse upon. While the city had legal authority to name and define particular problems, for example, ‘loitering’ or ‘begging’, it did not have the authority to name particular groups in the definition and construction of this problem, for example, ‘beggar’. Such an exercise would clearly be unconstitutional, something unambiguously laid down in the courts, evinced, for example, in Re. Alcoholism Foundation of Manitoba et al., and City of Winnipeg (1990),Footnote ²⁹ where the Manitoba Court of Appeal struck down a by-law which explicitly named disabled and substance-dependent individuals in a zoning provision for group and rehabilitation homes. What was problematic was not the ethos of exclusionary zoning, but that this policy explicitly, and unnecessarily, named groups, such as the ‘disabled’, who would have been the subject of such exclusion. This would mean that where public disorder is concerned, the scope of a by-law could only reach and address behaviour, not specific groups. This is significant because it illustrates an important rupturing of the continuity between the present and a past that cast its gaze specifically on groups themselves, that is, their very ‘being’, or, status.

Perhaps learning from the struggles that Oshawa experienced in its attempt to enact a public nuisance by-law, numerous cities wishing to follow in this path did so by drafting by-laws that were narrowly, and carefully, tailored. One example is the city of Winnipeg which enacted The Panhandling By-law in 1995.Footnote ³⁰ This by-law is noteworthy because it is one of the first among many which eschewed broadness for precision, and, in so doing, ran counter to the form of historical vagrancy law which celebrated breadth, depth and vagueness. First, the offence was constructed as one about panhandling, not begging, an important distinction from Oshawa's by-law because it sought to extricate itself from the infamy of historical vagrancy law. The by-law did, however, use the words ‘to beg’ but not to conceptualise or construct the problem, but to define panhandling, as when it noted that ‘“panhandling” means to beg or ask …’ .Footnote ³¹ Thus, while traces of historical vagrancy persisted in The Panhandling By-law, insofar as it established continuity between the past and present, this very continuity was also relied upon to greatly distance the present from the past by unambiguously constructing the offence as panhandling, not begging. What might on the face of it look like a semantic game is, in some ways, precisely that, but the symbolism associated with this distinction (and distancing) is significant to the constitutionality of the by-law, in some aspects at least, because it dogmatically refused to be portrayed as, and lumped with, historical vagrancy law.

Second, and related, the by-law only sought to regulate panhandling rather than prohibit it. Ironically, this brought The Panhandling By-law closer in spirit to historical vagrancy law, because, as noted above, begging was regulated rather than prohibited in historical times. Yet, this appears to be an attempt to distance itself from the contemporary efforts to regulate public nuisances, such as the attempts in Ottawa and Oshawa, which prohibited, among others, loitering and panhandling. Correctly fearing that these efforts would be recipes for constitutional challenges, Winnipeg chose to narrow the ambit of the by-law. Thus, the by-law defined specific times and places – after sunset or within ten metres of ‘the main entrance to a bank, credit union or trust company; an automatic teller machine; a public entrance to a hospital; a bus stop; or a bus shelter’Footnote ³² – when and where panhandling would be illegal.

The path chosen by Winnipeg – precision and narrowness in favour of broadness and vagueness – became the model for other cities seeking to enact by-laws to address public disorder. Thus, the city of Vancouver followed this path in its efforts to address panhandling. To some extent, Vancouver had already learned an important lesson, that a prohibition on panhandling could not be squared with constitutional principles, as it did when a by-law, which did just that – passed shortly after the decriminalisation of begging, in 1972 – was swiftly struck down (R.v. Snobellen, 1974).Footnote ³³ This short-lived by-law was not just a reminder to the city of the limits of its powers, but also that it needed to tread carefully in its latest attempt to address panhandling. Thus, following in the footsteps of Winnipeg – rather than Ottawa or Oshawa – Vancouver enacted A By-law to Regulate and Control Panhandling,Footnote ³⁴ which regulated the time, place and manner in which panhandling would be legal.

The success of these endeavours, however, was short-lived, something which again highlights the manner in which constitutional issues would plague even the by-laws which were carefully crafted to avoid precisely these problems. In Winnipeg, for example, the National Anti-Poverty Organization (NAPO), a noted anti-poverty group, challenged The Panhandling By-law. During the pre-trial proceedings, the presiding judge had suggested that it was more than likely that the by-law would be struck down on constitutional grounds. Based on these observations, and rather than risking a protracted legal battle, Winnipeg repealed The Panhandling By-law and replaced it with the less restrictive The Obstructive Solicitation By-law, in 2000.Footnote ³⁵ This by-law banned solicitation deemed obstructive (see below). Given that Vancouver's by-law was closely modelled on Winnipeg's The Panhandling By-law, and given the observations of the judge during the pre-trial proceedings, Vancouver was of the opinion that a similar fate would befall its by-law.Footnote ³⁶ Thus, in an effort to circumvent these problems, Vancouver followed in the footsteps of Winnipeg, repealed its A By-law to Regulate and Control Panhandling and amended its Street and Traffic By-lawFootnote ³⁷ to a include a provision pertaining to obstructive solicitation.

Both new by-laws in Winnipeg and Vancouver succinctly define what is prohibited: ‘No person shall solicit in a manner which causes an obstruction’.Footnote ³⁸ Additionally, both clearly outline the scenarios considered obstructive.Footnote ³⁹ These efforts, not surprisingly, were designed to make these by-laws constitutional. What is also important is that nowhere are the words ‘begging’ or, ‘to beg’, or, ‘panhandling’ or, ‘to panhandle’ found. Recall, for example, that in Oshawa's by-law, the offence in question was begging, and in the by-laws regulating panhandling in Winnipeg and Vancouver, while begging was not the offence, the phrase ‘to beg’ was used to define panhandling. In these new by-laws, however, the offence is one of soliciting rather than panhandling, and soliciting is defined as to ‘ask for money, donations, goods or other things of value …’ where consideration is not offered in return.Footnote ⁴⁰ Here, unlike the earlier efforts, both cities believed that the phrase ‘to ask’ would suffice to unambiguously define the offence of solicitation. That the phrase ‘to beg’ was deemed unnecessary to define the offence in question is significant, but what is perhaps more so is that this omission can be read as a concerted effort to underscore that the offence is solicitation, not begging, nor panhandling. Again, what might appear to be a semantic game is, in some ways, just that, but one purposefully designed to both extricate the by-laws from any association with historical vagrancy law, and, equally important, the earlier by-laws which sought to regulate panhandling. So doing, it was believed, would serve well to make the by-laws constitutionally foolproof and this is precisely what happened.

Here, it is worth remembering that even though the offence of solicitation shares a connection to, and relation with, historical vagrancy, it is tenuous, which means that, in many ways, it is a ‘new’ offence, and it is precisely this newness that helped extricate and distance it from the infamous images of historical vagrancy. In other words, the word ‘solicitation’ is not as charged nor does it have the pejorative connotations as do the words ‘begging’, and, to some extent, ‘panhandling’. When virtually all of the vagrancy sections in the Code were abolished in the early 1970s,Footnote ⁴¹ prostitution, which up until that time had been an offence of vagrancy, remained a criminal offence through the newly created crime of solicitation in public for the purposes of prostitution.Footnote ⁴² The rationale behind the offence was that the street solicitation aspect of prostitution was a social nuisance that required coercive legal intervention. What is important to underscore is that with this shift, the offence in question was now solicitation, not prostitution, and it was the public and visible nature of it that was constructed as a nuisance. This distinction removed the moral connotations that underpinned the discussions around prostitution. The criminal law was uninterested in policing morality; rather, it was interested in sparing the public from social nuisances (see Ranasinghe, Reference Ranasinghe2010a, pp. 88–93). Thus, from the outset, the offence of solicitation was stripped of, and distanced from, a pejorative past, a past which preoccupied itself with morality and the status of the person in question. The constitutionality of this approach – one dealing with a shift from ‘solicitation for the purposes of prostitution’ to ‘communication for the purposes of prostitution’ – was upheld by the Supreme Court of Canada, and, in so doing, it not only affirmed the social nuisance of public solicitation, but also reaffirmed the criminal law as an appropriate means by which to attend to this problem.Footnote ⁴³

The implication, then, is that conceptualising public disorder as social nuisance serves to legitimate the approach of cities and make it constitutional. This is because the objectives are precisely and carefully tailored, and the reach of the law, operating not via the criminal law but through regulatory measures such as by-laws, are deemed appropriate, that is, not overreaching, nor punitive. This is aptly evinced in the twofold and related construction of the problem, first, ‘solicitation’, second, ‘obstruction’, so that the problem – and the offence – is not simply solicitation, but obstructive solicitation, a matter that is pressing to the health and vitality of urban public space.

This is, for example, precisely what the British Columbia Supreme Court noted when it dismissed the myriad constitutional challenges brought against Vancouver's by-law banning obstructive solicitation.Footnote ⁴⁴ In rendering his decision, Justice Taylor commented that because the by-law ‘does not discriminate against panhandlers by creating a distinct class of people[,] as opposed to an activity that is sought to be regulated by its provisions’Footnote ⁴⁵ – in other words, it only seeks to address behaviour – its scope is constitutionally sound. Related, because the by-law does not have ‘a criminal as opposed to a regulatory purpose’Footnote ⁴⁶ – that is, it only seeks to regulate rather than ban panhandling and to do so in a manner that is not far-reaching – the constitutionality of the by-law can be rendered sound as well. In so stating, the Court was upholding the necessity of such regulation as crucial to the well-being of the health and vitality of urban public space: that is, that obstructive solicitation is inimical to pedestrian movement, traffic flow, and safety and security, among a host of others. Though written in a different time and place, the comments of Justice Babe – who ruled in favour of the province of Ontario's Safe Streets Act (1999),Footnote ⁴⁷ which banned squeegeeing and aggressive panhandling – aptly illuminates the need to regulate this type of problem, a statement that is equally powerful for its invocation of urbanist Jane Jacobs and the importance she places on streets and sidewalks (Jacobs, Reference Jacobs1961, pp. 29–73): that public disorder ‘can pose … both short and long term [problems to the] health of urban areas’.Footnote ⁴⁸

These ways of thinking about, and imagining, the social world, unequivocally state that public disorder is an important issue requiring legal action because it is a nuisance to the health of urban space. Such a way of imagining the problem illuminates an important discontinuity between the past and the present, but one that, rather ironically, also serves to preserve this very continuity. Historical vagrancy, as noted above, constructed problems in moral terms. Hence, while particular offences of vagrancy, for example, begging or loitering, were problematic for logistical reasons such as the incommoding of pedestrians (e.g. An Act respecting Vagrants, 1869, s. 1), they were largely problematic because the beggar or loiterer him or herself was emblematic of the breakdown of the social and moral fabric of the nation, often thought to be ‘morally depraved’ (Bellomo, Reference Bellomo1972, pp. 12–13). The vagrant, in other words, was imagined, first and foremost, as a moral problem. This, however, is clearly not the case today, because begging, now constructed as solicitation, is imagined as a nuisance, not a moral problem. Yet, this imagination has failed to completely rupture the continuity between the past and the present because, logistically at least, contemporary vagrancy law operates in a very similar manner to historical vagrancy law, that is, as a regulatory mechanism (this is especially so when considering that prior to the first national legislation, in 1869, vagrancy laws were local in nature, existing provincially and municipally). It is true that historical vagrancy prohibited myriad activities and was a coercive tool of the state. However, in that very power it also concerned itself with the provision of welfare for those deemed deserving of need. In this allowance, historical vagrancy regulated and managed a vast number of problems, rather than prohibiting them wholesale. Contemporary vagrancy law has, though largely because of the limits placed on it through constitutional concerns, mimicked its historical predecessor in taking on this aspect of welfare through the allowances it affords particular behaviour; that is, it regulates and manages particular activities rather than seeks to eliminate them. In other words, in its regulatory reach, it is very much like its predecessor and even more so in the allowances it permits. In many ways, despite its refashioning, the Law's imagination about justice ensures that it cannot be anything else other than historical vagrancy. It is in this sense that the present and past meet, and (dis)connect, creating further openings in the closures (see Lefebvre, Reference Lefebvre and Nicholson-Smith1991 [1974], pp. 401–423; Soja, Reference Soja1996, pp. 53–60).