PBSC
RESEARCH
PROJECT
HANDBOOK
2014 -2015
PBSC’s National Legal Research Partner
RESEARCH SUPPORT FOR PBSC
24/7
EXPERT SUPPORT
Technical Support
Call 1-800-387-5164, option 2,
or email us for help with any technical issues you may experience
Reference Support
Call 1-800-387-5164, option 3,
or email us for help with any reserch issues you may experience
We are proud to be a partner in the important work of PBSC.
I believe we are making a real difference in improving access to
justice, through the legal support provided by PBSC.
Don Van Meer,
President and CEO, Carswell
Table of Contents
Dear PBSC Volunteer ........................................................................................................................ 4
About Pro Bono Students Canada ................................................................................................ 5
Acknowledgment of Contributors ............................................................................................... 5
Scope of Research Handbook ........................................................................................................ 5
Part A - PBSC Research Checklist...................................................................................................... 6
Step 1) Plan before You Start ........................................................................................................ 6
Step 2) Always start with Secondary Sources ........................................................................ 7
Step 3) Primary Resources - Case Law and Legislation ................................................... 11
Step 4) Note up Case Law, Statutes and Regulations ........................................................ 12
Step 5) Additional Authorities ................................................................................................... 13
Research Map Overview ............................................................................................................... 14
Part B - 2014/2015 Research Scenario ....................................................................................... 15
PBSC Hypothetical Scenario - Prohibition on Panhandling in Urban Centres ........ 15
Research Process............................................................................................................................. 15
Step 1: Plan Before You Start ................................................................................................. 15
a)
Understand the assignment ................................................................................... 15
b)
Chart a plan of action & write-down initial thoughts .................................. 16
c)
Ask your librarian to assist with your planning ............................................ 17
d)
Keep track of every step.......................................................................................... 17
Step 2: Secondary Sources ...................................................................................................... 18
a)
Start by looking in Textbooks and Loose-leaf Services: ............................. 18
b)
Move to Encyclopedias (search terms – broad to narrow): ...................... 18
c)
Then move to Journals (search terms – broad to narrow): ....................... 21
Step 3: Primary Resources - Case Law and Legislation ............................................... 26
a)
Locating Case Law...................................................................................................... 26
b)
Locating Legislation .................................................................................................. 33
Step 4: Noting-up Case Law, Statutes and Regulations................................................ 36
Step 5: Additional Authorities ............................................................................................... 41
CONCLUSION ......................................................................................................................................... 42
Key Takeaways: 5 Research Tips .............................................................................................. 42
Writing the Legal Memorandum ............................................................................................... 42
PART 2: Limits on a Municipality's Authority to Enact a By-Law Relating to
Panhandling ........................................................................................................................................... 46
PART 3: Can a Municipality Prohibit all Panhandling Throughout Certain Geographic
Areas such as a Downtown Core? .................................................................................................. 48
PART 4: International Law ............................................................................................................... 49
3
Dear PBSC Volunteer,
Thank you for signing up to do a placement with Pro Bono Students Canada!
PBSC is a multiple award-winning, national law student program that operates in 21 law
schools in Canada. Each year we place about 1600 law student volunteers in over 450
community organizations, clinics, courts and tribunals across the country. Together, our
amazing volunteers donate over 140,000 hours of free legal services to organizations
and individuals in need across Canada.
PBSC is committed to providing you with a meaningful and educational volunteer experience.
In order to get your PBSC placement off to the right start, we try to make sure that you receive
the very best training we can offer. The PBSC-WestlawNext Canada Legal Research Training
is an integral part of our overall training program, and a unique opportunity available only to
PBSC volunteers.
PBSC’s National Legal Research Partner, WestlawNext Canada, has developed a training
session and resource materials designed to focus specifically on public interest research
projects. The program covers not only Westlaw, but other legal research tools that will be
relevant to your PBSC placement and beyond. By providing specialized training for law
students across the country, WestlawNext Canada is making a very real contribution to the
advancement of access to justice.
We are eager to receive your feedback. I invite you to email me directly with any comments or
suggestions you may have about the training program, at
nikki.gershbain@probonostudents.ca. If you require additional, specialized, or more advanced
training support as part of your PBSC placement, please email
Bonnie.Preece@thomsonreuters.com. For more information about PBSC more generally, visit
www.probonostudents.ca.
Finally, please take a minute right now to “Like” us on Facebook and follow us on Twitter! We
post regular updates and news items relevant to our volunteers, including up-to-the-minute
information on Canadian law schools and students, pro bono and access to justice, and events
taking place in your area. Find us on Facebook at: “Pro Bono Students Canada / Réseau
national d'étudiant(e)s pro bono” and on Twitter at @PBSCnational.
Good luck with your PBSC placement, and thank you for working with us to increase access to
justice in Canada!
Warm regards,
Nikki Gershbain, M.A., LL.B. National Director, Pro Bono Students Canada
4
About Pro Bono Students Canada
PBSC is a national pro bono organization with a chapter in every law school in Canada.
PBSC provides legal services without charge to organizations and individuals in need
from coast to coast. PBSC’s mission is to provide law students with opportunities to
develop their legal skills; to have a positive impact on the legal profession through the
promotion of a pro bono ethic; and to increase access to justice in Canada. PBSC’s
impact on access to justice in Canada is remarkable. Each year, about 1,500 PBSC law
student volunteers – fully a quarter of all law students in Canada – provide
approximately 120,000 hours of free legal services to between 400-500 public
interest and other community organizations, courts and tribunals across the country.
For more information, go to www.probonostudents.ca
Acknowledgment of Contributors
We thank the following for their contributions and support of this training:
•
Professor Allan Hutchinson, Osgoode Hall Law School
•
Susan Barker, Digital Services and Reference Librarian, University of
Toronto Bora Laskin Law Library, University of Toronto Faculty of Law
Scope of Research Handbook
This handbook is intended to illustrate one general approach to researching a legal
issue. It concentrates on the process of identifying potentially relevant sources of
commentary and law and the way in which one must learn to think about where they
might be found. It is divided into to 2 parts: Part A introduces the PBSC Research
Checklist approach to tackling a research assignment, and Part B exemplifies the
application of the checklist to a specific scenario. A sample legal memorandum of the
research scenario is presented in the conclusion.
5
Part A - PBSC Research Checklist
Let’s start this checklist by saying – don’t be intimidated by the research process. The
steps set out in the checklist reflect the ideal scenario in which you have every resource
at your fingertips and a handy librarian to help you out when you are in a jam. But, as
we know, life is not always like that. You may not have access to any texts; you may
have only been given 15 minutes to find the leading case on a particular topic; or you
may just not be able to find a direct answer to your question.
Whatever your situation, you can still make use of this checklist. You may have to skip
a step or two depending on the resources at hand but as long as you have been
systematic in your research and have made detailed notes on where you looked and
what you have found, you will be able to justify your research findings.
Keeping detailed notes is particularly important where you have been unable to locate
any relevant authorities as these notes will show that you have looked at the available
resources and done your research thoroughly as possible in your particular
circumstances.
Step I) Plan before You Start
•
Look at the problem and identify the facts and legal and other issues to be
examined.
•
When beginning your research start with the general and move toward the
specific.
Locate the broad concepts in texts and other sources of commentary and then
move to the specifics when you have a clear understanding of the issues at
hand.
•
Don’t forget, research is an iterative process. You will need to repeat the steps a
few times as new information appears in order to ensure your research is
complete.
•
Ask your librarian to assist you in planning your research. A librarian can help
you to identify where information might be located and to formulate your
search strategy.
6
Notes: in addition to conducting legal research, your research may involve looking at
social science or public policy sources. The courts are increasingly accepting social
science evidence as persuasive. This evidence may include “government reports, law
reform commission reports, social science studies, or statistics. These … sources can
provide insight into the social purposes … context… and institutional framework in
which legislation is intended to operate” (McCormack, Papadopoulos and Cotter, p.
205)
One example is the Morgentaler case ([1988] 1 S.C.R. 30)in which the court referred to
evidence from Statistics Canada (Basic Facts on Therapeutic Abortions), Law Reform
Commissions, Joint Committee Minutes, Government Reports - so keep in mind the
need to do research other than legal research when you are looking at public policy
issues.
Step 2) Always start with Secondary Sources
•
Secondary sources are not the law; only primary sources have binding authority
in the courts, but secondary sources may have persuasive authority
Commentary - explains and describes the law and points to primary sources.
o Texts, articles, encyclopedias, legal dictionaries, words and phrases, wikis,
blogs and law firm newsletters.
Finding Tools – help to locate the law and commentary.
o Case law digests, citators and journal indexes
•
Secondary Sources: Texts, Loose-leaf Services, Law Reform Commission
Reports, Continuing Legal Education Materials, Government Reports.
o These sources are the best starting point because they are written by
experts and provides a broad academic or practical overview of the subject.
o To locate these sources, search your library catalogue or better still refer to
published bibliographies which identify the best resources available.
Examples:
-Tjaden, Legal Research and Writing, 3rd edition. 2010. Irwin
Chapter 8: Legal Research by Topic
-Eaton and Lemay, Essential Sources of Canadian Law. 2009. Irwin
-Practice specific collections on WestlawNext Canada and Quicklaw/LexisNexis
7
Notes: Once you have read through a couple of texts, you will have an idea of the
concepts, keywords and terms that you will need to explore to build on your
understanding of the topic. To streamline your research, make note of the terms to be
researched as well as the primary sources you might want to look at. One caveat –
texts are not always current – to keep your research up to date you must check current
sources of information.
•
Secondary Sources: Blogs, Wikis and Law Firm Newsletters
o Are useful for finding background information on very current issues, cases
that are on the go or issues that are in the news.
- Search for blogs on the Canadian Law Blogs List, http://www.lawblogs.ca
or for law firm newsletters at FeeFieFoeFirm Canada,
http://www.feefiefoefirm.com/ca/
o Be aware that these sources may be less authoritative. Always check the
authorship to ensure that the information is coming from a reliable source:
an academic institution or a law firm for example.
Notes: What about Google or other search engines?
Generally, it is not a good idea to base your research on Google; you will get too many
false hits of questionable authority.
There are two instances when you might want to use Google.
1) for preliminary searching (when you know absolutely nothing) – a quick search
may provide you with background information or vocabulary, or
2) for very specific searching – when you know exactly what you are looking for, a
particular website or document for example.
In the area between these two extremes you will need to be very careful if you are
using Google for your research.
(Taken from Fitzgerald and Barker, The Ultimate Guide to Canadian Legal Research,
LexisNexis 2010)
•
Secondary Sources: Legal Encyclopedias
o Build on your knowledge by checking an encyclopedia. These are written by
subject experts, and provide a more specific overview most of the legal
topics relevant to Canadian Law. Each paragraph describes a particular
point of law and provides references and links to relevant cases and
legislation. Encylopedias have multiple points of access, including indexes,
tables of cases and tables of legislation
Examples:
- Canadian Encyclopedic Digest on WestlawNext Canada
-
Halsbury’s Laws of Canada on Quicklaw/LexisNexis
8
Both are available in print and online and are updated regularly. On the
online version the updates are consolidated into the text but in the print
version you will have to check the hard copy supplements.
Notes: Don’t take it for granted that this information will be up to date. Always check
the currency date to ensure that your information is as up-to-date as possible.
If using a print version of a digest, take advantage of the indexes and finding tools
available. If using an online version, you can do a keyword search (now that you know
what terms to look for) or browse the tables of contents to locate the appropriate
information.
•
Secondary Sources: Legal Dictionaries and Words and Phrases
o Legal terminology is very specific and so you should not take it for granted
that you know the meaning of a term or expression. Further, you will need
to know if a term or expression has been defined by the court in a particular
way. These resources also point to primary sources of law when
appropriate.
-
Dictionary of Canadian Law. 3rded.
-
Words and Phrases Judicially defined (in print or on WestlawNext
Canada)
•
Canadian Legal Words and Phrases on Quicklaw/LexisNexis
Secondary Sources: Journals and Periodicals
o It is always a good idea to see if there are any journal articles on your topic.
These are generally written by legal scholars and usually cover current or
developing or controversial issues. They usually provide references to
primary and other useful secondary resources and they may have
persuasive influence in court.
•
Secondary Sources: Journals and Periodicals – Finding Tools –Journal Indexes
o Start your research using a journal index.
-
Indexes speed up the research process by providing references to the
articles author, title, and citation as well as to abstracts and subject
headings, the latter of which you can use to locate other articles on the
same issue.
9
-
Indexes are more comprehensive than full text databases.
-
Examples:
 Index to Canadian Legal Literature
 Index to Foreign Legal Periodicals
 Index to Legal Periodicals and Books
 Index to Legal Periodicals Related to Law
 LegalTrac
 Criminal Justice Abstracts
 Hein Online Law Journal Library Search
 Social Science Index
 Social Science Research Network ( for very current legal and
social science research)
Notes: Researchers are often reluctant to search indexes as they think everything is
available in the full text journal databases. But, in reality, they are likely to miss
something if they limit their search to these databases only. As an example, the Index
to Canadian Legal Literature indexes approximately 200 legal resources, while the
Law Reports Articles and Journals database on WestlawNext Canada only includes the
contexts of approximately 50 law reports and journals and the All Canadian Legal
Journals database on Quicklaw/LexisNexis includes only the contents of
approximately 30 law journals. Using a journal index, however, might be a two step
process as once you have located the index entry you will then need to locate the full
text of the article.
•
Secondary Sources: Journals and Periodicals - Using Full-Text Journal
Databases
o Full Text Databases are convenient when you know what article you are
looking for or if you are searching for specific situations rather than broad
legal concepts.
- Sources:
 Hein Online
 Articles and Newsletters on WestlawNext Canada
 WORLD-JLR on Westlaw Canada
 All Canadian Legal Journals on QuickLaw/LexisNexis
•
Secondary Sources: Newspapers
o Are great for factual information and for examining the social and political
context of current issues. Your library will subscribe to a number of
newspaper databases. Check with your librarian for assistance.
10
•
Secondary Resources: Finding Tools -Case Law Digests
o Digests are summaries of cases organized by subject. These summaries
enable researchers to quickly read about the cases. Each case is also
assigned one or more subject headings which allow researchers to locate
additional material on their topic very easily.
-
•
Examples:
 The Canadian Abridgment (in print and on WestlawNext Canada)
The Canada Digest on QuickLaw/LexisNexis
Secondary Resources: Parliamentary Material
o When researching parliamentary material, remember; ask for help, the
librarian is your best friend. Parliamentary debates are an excellent source
for locating the context or intent behind a particular piece of legislation.
Current debates and government committee reports are available from the
government websites. You may need to go to the law or government
documents library for assistance in locating older material.
Step 3) Primary Resources - Case Law and Legislation
o Primary sources of law in the common law system are case law and
legislation.
o If you have done your research properly, at this point you will probably have
a list of citations to the primary sources of law that govern the issue that
you are researching and you should be able to go directly to those sources.
o Primary Resources: Case Law
o Case law consists of the written record of a judge’s reasons for judgment.
Cases can be reported, i.e. published in a commercially printed reporter or
unreported.
o Most recent cases are available electronically and easy to locate if you have
the citation or name of the case. For older cases you may need to locate the
print reporters which are available in most law libraries.
o Search the full text databases when you are looking to match broad
concepts and/or specific fact situations.
o Sources for Case Law
- WestlawNext Canada
- Quicklaw/LexisNexis
- CanLII ( a free source)
11
Notes: Cases will have either authoritative or persuasive value depending on the court
level and jurisdiction. Cases from the Supreme Court are binding for all jurisdictions in
Canada; cases from lower courts are only binding in their originating jurisdiction
although they may have persuasive value in other jurisdictions. Older cases that are still
good law should be included in your findings.
Most cases are identified by abbreviated citations – to find out what an abbreviation
means check out the Cardiff Index to Legal Abbreviations,
http://www.legalabbrevs.cardiff.ac.uk/.
•
Primary Sources: Legislation
o Legislation research is complex. You will need to locate legislation as it
was on the date of the matter being researched. Don’t forget, you can ask
your librarian for help.
o
For current matters you will need to locate statutes that are still in force. It
is relatively easy to locate current consolidated legislation, and their related
regulations, on the various government websites. The Bora Laskin Law
Library has compiled links to all these websites on their Internet Sources of
Current Canadian Legislation and Parliamentary Material webpage.
http://library.law.utoronto.ca/how-to/current-canadian-legislation
-
Other Sources of Current Consolidated Legislation
 WestlawNext Canada
 Quicklaw/LexisNexis
 CanLII
Notes: Legislation located in commercial databases or on CanLII is not considered to
be official and cannot be presented to court. Legislation located from the websites of
the various jurisdictions is generally (with the exception of those from the Ontario,
Quebec and the Federal Governments) not considered to be official either. So it is
likely that you will have to refer to the print versions if going to court.
Step 4) Note up Case Law, Statutes and Regulations
•
Note up Case Law
o To see if a case has been appealed to a higher court and how it was treated
by that court
o To check how other cases have considered that case. A step which will, in
essence, help you locate other cases on the same subject matter
12
o To tell if a case is a leading case is by the number of times it has been cited
o Sources for noting up case law
- KeyCite Canada on WestlawNext Canada
- QuickCITE Case Citations on Quicklaw/LexisNexis
- On CanLII – with limited coverage
- Canadian Case Citations in print
•
Note up Statutes and Regulations
o To see how the courts have treated or considered a particular statute or
regulation
o Sources for noting up Legislation
- KeyCite Canada on WestlawNext Canada
- QuickCITE Statute Citations on Quicklaw/LexisNexis (does not note
up regulations)
- On CanLII – with limited coverage
- Canadian Statute Citation in print
- Canadian Regulations Judicially Considered in print
Step 5) Additional Authorities
•
Secondary Sources
o Librarians – check again
o Government Departments
o Associations
o Google
As a double check, consult additional secondary sources – to make sure you haven’t
missed anything. Also don’t forget to check again with your law librarians, just in
case, and also Google, from which a legal memo written by a City of Toronto lawyer
on the prohibition of panhandling laws was found!
13
Research Map Overview
STEP 1
Secondary Sources
Types
Access
Textbooks & Loose-leaf Services
Encylopaedias and Reference Materials
Annotations
Conferences
Journal articles
Law firm newsletters, authoritative legal blogs and wikis
Electronic indices, e.g. Hein Online, Legaltrac and ICLL
Online databases: WLC, QL/Lexis
Forms
Statutes and
Regs
SEPT 2
Primary Sources
Cases
Access
Finding
Access
SEPT 3
Updating
STEP 4
Noting Up
STEP 5
Additional
Authorities
Citators
KeyCite (WLC)
Quicksite (QL)
Bills
Statutes
Consolidations
e-Laws (Ontario)
Department of Justice website
(federal)
CanLii (Federal and Provincial)
Government websites for bills
Canadian Gazette Part II, annual vlms.
Ontario Regulations, annual vlms.
Canadian Abridgment
By Citation
By party name
By subject
Online Databases: WLC,Ql/Lexis,
Bestcase, Justis
Print reporter: indices and tables
CED
Canadian Abridgment
Shepard’s (lexis- US)
JustCite (Justis- UK)
Caselaw
Statutes and
Regs
Secondary
Primary
Librarians
Government Departments
Associations
Google; Blogs
Other persuasive law
Law from other jurisdictions
14
Part B - 2014/2015 Research Scenario
PBSC Hypothetical Scenario - Prohibition on Panhandling in
Urban Centres
In recent years, Canada's urban centres have witnessed a steady decrease in sales
revenue per square foot and a gradual decline in tourist activity. Taking steps to
reverse the trend, a group of downtown business owners and others with vital business
interests in many cities across Canada have united to form the Downtown Cities
Partnership ("DCP"). DCP is committed to creating exciting, economically vibrant and
aesthetically pleasing downtown environments across Canada which enhances the
quality of life of those who live and work in cities.
One specific issue that DCP would like the Big City Mayors Caucus ("BCMC"), which
comprises a regionally representative group of member cities, to address is the rise in
the number of panhandlers. For the past quarter-century, panhandling in urban
communities has been an everyday part of a city's streetscape, visible to any visitor or
resident, an inescapable element of a city's appearance, reputation, and daily life.
However, in recent years, the numbers of visible panhandlers in the downtown cores of
cities across Canada have increased. DCP believes that the increased presence of
panhandling in urban centres is "bad" for business and mars the tourist experience:
panhandlers make tourists and residents alike feel uncomfortable and unsafe.
Even though DCP recognizes that panhandling is a consistently, pressing and
politically charged issue, as part of its efforts to increase the desirability of downtown
cores, DCP has lobbied BCMC to consider passing public behaviour law, which, among
other things, "prohibits panhandling, sleeping on benches or sidewalks, [and]
huddling on public property in the downtown core." It is believed that the proposed
bylaw carries a fine of up to $300, alternatively, up to 3 months in jail. The proposal
has gone to a Special Committee of the BCMC, made up of six mayors.
Meanwhile, the National Anti-Poverty Organization ("NAPO"), having become aware
of the proposed public behaviour law, has approached Pro Bono Students Canada
("PBSC") with a request for a legal memo on what limits cities can place on
panhandling, and if it is possible to ban begging for money altogether in the
downtown cores of Canadian cities under the Constitution.
Research Process
Step 1: Plan Before You Start
a) Understand the assignment
When receiving instructions for a new assignment, take a few minutes
immediately after the meeting to write-down the instructions, your plan of
action and any initial thoughts. Like anything else, every time you begin
15
working on an assignment, re-read the instructions. This goes a long way to
avoiding submitting a work product that completely misses the point.
It is important to know and understand the facts that give rise to an issue that
is to be researched, if the issue is to be correctly framed and effectively
researched.
Sample Research Question:
You have been asked to provide a general research memo on
whether the Constitution allows Canadian municipalities to
place any limits on panhandling or can ban panhandling
altogether in a geographic area.
b) Chart a plan of action & write-down initial thoughts
The keys to effective legal research are knowledge of the sources available and
how to use them and, perhaps most importantly but more difficult to acquire,
knowledge of which sources are most effective in relation to a particular
problem so that the available time for researching a problem can be best used.
If possible, it also helps to start the research right away to get a general idea of
how difficult or time-consuming the assignment will be.
Areas of law:
Search terms:
Legislation:
Case Law:
Textbooks:
Charter rights, freedom of expression,
constitutional law, municipal law
Panhandle, panhandling,
homelessness, begging, beggar,
economic rights
Charter sections
case about squeegeeing
Hogg on Constitutional Law
Monahan on Constitution Law
16
c) Ask your librarian to assist with your planning
Librarians can save you a tremendous amount of time at the beginning of your
research by directing you to important and key resources, providing keywords
and effective search strategies.
d) Keep track of every step
Keep track of every step taken in your research, including the chapters read in
any texts or any annotated statutes, as well as the search methods used.
Indicate whether the source was really read or just skimmed.
For electronic searches, write the database and the search terms in order to
avoid repetition. The easiest way to do this is by writing your search strings in a
Word document and pasting them in from WestLawNext Canada.
For updating cases or statutes, indicate the sources used and the results. This
will makes the "Sources Consulted" or "Research Undertaken" section of the
memo easy to write and allow you to answer any questions about your
research. This is particularly important where you have been unable to locate
any relevant authorities, or any authorities beyond those of which the assigning
lawyer or organization is already aware.
The summary, as well, will serve to assure the client or the lawyer that negative
research results are not the consequence of lack of effort on your part.
17
Step 2: Secondary Sources
Secondary sources provide citations to primary sources. Perhaps, more importantly,
they explain the law.
a) Start by looking in Textbooks and Loose-leaf Services:
o Patrick J. Monahan, Constitutional Law
o Peter Hogg, Constitutional Law of Canada
o Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms
When using a text you may not find something exactly on point – you will however
have a broad overview of the law and may have located some key terms and
concepts that would be useful in your further research.
b) Move to Encyclopedias (search terms – broad to narrow):
o Canadian Encyclopedic Digest
o Halsbury’s Laws of Canada
18
All law students have complimentary access to WestlawNext Canada and
also to Lexis Nexis’s Quicklaw.
Step 2B –Search a Legal Encyclopedia (WestlawNext Canada)
•
Start by searching the CED (Canadian Encyclopedic Digest)
o When searching you may use the Browse function, expanding titles until you
select a title of interest or use the Search full text of the CED as shown here.
o Enter search term: “charter and streets and (squeegee or panhandl!)”
•
Results – 1 Entry, with reference to relevant legislation and Caselaw
19
Step 2B –Search a Legal Encyclopedia (Quicklaw)
•
You may do a similar search using Quicklaw’s Halsbury’s Laws of Canada.
Enter search term: “charter and streets and (panhandl! or squeegee)”

Results - 1 Entry, with reference to relevant legislation and Caselaw
20
Rather than commentary, Encyclopedias provide a concise “black letter”
statement of the law. These entries are useful as they provide footnoted
references to the most important primary sources of law on that topic (cases
and legislation) as well as links to those sources when available.
c) Then move to Journals (search terms – broad to narrow)
Indexes should be consulted as they are more comprehensive than full text
databases:
o
o
o
o
Index to Canadian Legal Literature on WestlawNext Canada & Quicklaw
Law Reports, Articles & Journals (WestlawNext Canada)
Journals & Commentary (Quicklaw)
Legaltrac, HeinOnline
21
Step 2C –Search for Journal Articles (WestlawNext Canada)
•
Start by searching the Index To Canadian Legal Literature, which covers the contents of
Canadian Journals, Reviews, as well as treatises.
o Enter “panhandling” as a keyword search
•
Results – 3 documents, including
In some cases, the results you receive will provide a link to the full text of the article,
because they are part of the Westlaw Canada resources, in others, you will need to
note the reference citation and check in your library catalogue or confirm access by
asking the librarian.
22
One really good search strategy is, when you find an article that is on point, to check
out the subject headings, copy any that seem useful and then return to the search box
– paste in that subject heading – deleting any dashes or punctuation and redo the
search – you will likely locate additional material on the same topic
Step 2C –Search for Journal Articles (Quicklaw)
•
You may do a similar search on Quicklaw’s database of Journals the “All Canadian Legal
Literature Indexes”, which has the same content as the ICLL Legal but also provides access
to the “Canadian Law Symposia Index”
o Enter “panhandling” as a search term
•
Results- 2 documents
23
You can also search full text journal databases by keyword using terms and connectors.
Full Text Journal databases while not as comprehensive as journal indexes, have the
advantage of being easier to search by keyword. This is useful if you are looking for a
narrow topic or specific situation rather than a broad general topic.
The search template for the WestlawNext Canada and QuickLaw/LexisNexis full-text
databases are similar to that of the Indexes. Just key in your terms and or concepts
and view the results.
We will take a look at the search interface for Hein Online because that is somewhat
different than the other two.
Step 2D – Look for Journal Articles (HeinOnline)
•
Search HeinOnline Law Journal Library.
o Enter search terms “panhandling” & “charter” in text and “Canada” in country
•
Results – 25 results
24
HeinOnline includes both US and Canadian Journals and provides electronic access to
many journals going back to their inception and so is very useful for historical research.
It also provides PDF versions of each article thus replicating the exact look of the print
version. ScholarCheck shows at a glance how often each article has been cited
enabling you to tell immediately if you are looking at an important or influential piece
of research.
Because you are searching full text you may locate more resources than you would if
you were searching an index but the results may be less relevant to your research so
you will need to take care.
25
Step 3: Primary Resources - Case Law and Legislation
Having begun our research with Secondary Sources, we now have an excellent start at
understanding the issues and the law, as well as a good chance we have uncovered
direct links to the applicable primary sources of legislation or case law:
•
Cases: they interpret and apply Statutes/ Regulations.
•
Statutes: they state the law and delegate authority to enact regulations.
•
Regulations: they enact regulations to enforce statutes.
a) Locating Case Law
(i) Case Law Digests
The value of a digest is in its subject classification. Each case is assigned one or
more subject headings so you can easily and efficiently locate all cases that touch
on like or similar points of law. Each digest provides a brief synopsis of the case
and its disposition as well as a link to the full text of the case if available. You can
read through the digest quickly to see if it appropriate to include in your research.
Step 3A(i) – Locating Case Law Digests
(WestlawNext Canada)
•
Start by searching the Canadian Abridgment (CA)
o When searching you may use the Browse function, expanding titles
until you select a title of interest or use the search full text of the CA as
shown here.
o Enter search terms: “panhandl! and constitution”:
26
•
Results – 4 subject areas
In this instance – there is only one digest per subject but in other subject areas
you might find many more digests.
(ii) Full Text Case Law Searching
To start searching for cases, you will likely have located the leading cases through
your secondary research and either linked to them or searched for them by citation.
But if you need to look further, for analogous fact situations or general concepts
you can search the full text databases. Primary Case Law can be searched on
WestlawNext Canada, LexisNexis Quicklaw or CanLII .
27
Step 3A(ii)– Locating Full Text Case Law (WestlawNext
Canada)
•
Start by selecting ‘Cases and Decisions’ under primary sources
o Enter search terms: “panhandl! /p homeless”:
•
This search of the case database yields 21 results, so narrow the search with
“charter” by using the ‘search within results’ option
28
•
This filtered search yields 9 documents.
•
You may scroll down to review the 9 hits to identify
relevant
29
Step 3A(ii)– Locating Full Text Case Law
(Quicklaw)
•
You may do a similar search with LexisNexis Quicklaw.
o Click on ‘Court Cases’ tab
o Search for “pandhandl! /p homeless” AND “charter”
•
Results: This search located 7 cases
A third option is CanLII, a free website that provides access to Case Law and
Legislation. While lacking some of the value added features of the commercial
databases, it is still a great starting place for research especially if you do not have
access to a commercial database.
30
Step 3A(ii) – Locating Full Text Case Law (CanLII)
•
You may do a similar search on CanLII
o Select ‘Document text” federated search box and enter “pandhandl! /p
homeless and charter”
•
Results – 9 cases
31
(iii) Administrative Tribunal case law
While cases from Administrative Tribunals do not have precedential value in the courts,
they may however, still be useful to pro bono researchers preparing for a hearing
before a tribunal to see how issues have been previously decided.
In CanLII, select the Jurisdiction and then link to Tribunal:
In WestlawNext Canada, Tribunal Cases are included in case law searching unless the
decision type is limited to Tribunal Decisions only
32
In Quicklaw, click on the Tribunal Cases Tab:
b) Locating Legislation
As noted previously, if your secondary source research has been successful you should
have a citation to the relevant section of the legislation and can locate it directly.
Statutes state broad principles while regulations provide the practical details that make
those statutes work. The easiest place to locate legislation for all jurisdictions is CanLII
(www.canlii.org) or on the relevant government websites.
(i) Statutes
You will find the most recent current consolidations of the statutes on these sites
however you must be aware that they are only considered official in a few jurisdictions
and you may need to refer to the print versions.
33
Step 3B(i)– Locating Statutes (CanLII)
•
Search for ‘Safe Streets Act” in Ontario
•
Results – Current Consolidated Version of the Statute
(ii) Regulations
Don’t forget you may need to look at regulations as well. Like statutes, regulations are
a form of legislation (subsidiary or delegated) and have the force of law. Regulations
are enacted by the executive bodies that the Parliament or Legislature has authorized,
and cannot be made outside the purview of the enabling legislation.
As with statutes, the easiest place to locate regulations for all jurisdictions is CanLII
(www.canlii.org) or on the relevant government websites under the name of the
enabling statute.
34
Step 3B(ii)– Locating Regulations (CanLII)
•
Under databases, select ‘Ontario’ and view Regulations beginning with ‘S”
•
Result – Safe Street Act has no attendant regulation
35
Step 4: Noting-up Case Law, Statutes and Regulations
The purpose of “noting-up” both primary & secondary sources is to validate
primary authorities. It also helps you find additional authority. Finally, “noting-up”
helps you track the history in the courts.
The term “note-up” originally referred to the practice of literally writing in the
updated information regarding the case in the margins of the printed casebook.
Later on, publishing companies actually issued “sticky notes” that were added in
the margins. If you visit your law library’s older collection you will see these quaint
notes. Noting up of both Cases and Legislation is done electronically today.
(i) Cases
We note up to follow a cases history and make sure it is still good law and also to
see how other cases have considered the case. There are three sources available
for noting up cases:
•
Key Cite (WestlawNext Canada) uses colourful flags to denote treatment as
follows:
•
QuickCITE (Quicklaw) uses colourful signals to denote treatment as follows:
•
CanLII has recently added the ReFLex database of case and legal citations
36
Case Note-Up – An Example with R. v. Banks
Step 4C– Noting-Up in CanLII
•
From the home screen, expand the federated search box to display tripartite
search boxes, which include the note up search box
Note: jurisdiction can be limited by selecting specific databases from left panel
•
Enter into “R. v. Banks” into the note up search box, and accept correct reference
•
Results – 22 Documents
37
Step 4C– Noting-Up Using KeyCite (Westlawnext
Canada)
•
Method 1: From the home screen, enter into the federated search box the
following search “KC: 84 OR (3d) 1”. Hover over the Citing References tab and
select Cases and Decisions.
•
Method 2: Hover over the Citing References tab and select Cases and
Decisions
•
Results – 51 Citing References are listed
38
•
Results cont.- Follow up by looking at R. v. B(T) and note the Reference to R.v.
Banks under cases considered…
39
Step 4C– Noting-Up Using QuickCITE
(Quicklaw)
•
Enter Citation “(2007) O.J. No. 99” in the search box
•
View the QuickCITE entry
40
(ii) Statutes and Regulations
We note up legislation to find cases that have considered a particular section of a
statute. There are three sources available for noting up legislation:
•
•
•
Key Cite (WestlawNext Canada)
QuickCITE Statute Citator(Quicklaw)
ReFLex database of legal citations (CanLII)
Step 5: Additional Authorities
•
Secondary Sources
o Librarians – check again
o Government Departments
o Associations
o Google
As a double check, consult additional secondary sources – to make sure you haven’t
missed anything. Also don’t forget to check again with your law librarians, just in case,
and also Google, from which a legal memo written by a City of Toronto lawyer on the
prohibition of panhandling laws was found!
41
•
Primary Sources
o Laws from other jurisdictions (e.g. U.S.)
CONCLUSION
Key Takeaways: 5 Research Tips
1. It’s okay (and important) to ask questions
2. Always update and note-up
3. Remember the 10 to 15 minute rule
•
When you have searched for more than 10 to 15 minutes with no success,
consult your librarian who will be able to help you reformulate your search
strategy and terms, or who will be able to assist you by confirming that
indeed there is nothing there.
4. Keep track of your research
•
Review the History functionality in WestlawNext Canada
5. Efficiency is essential
•
Because virtually all legal writing is subject to time constraints of greater or
lesser severity, it will never be perfect.
Writing the Legal Memorandum
Unfortunately, writing is not instinctive to most people. Most people do not write in a
simple or elegant style.
It is essential, however, to strive for a legal analysis that is not only thorough, accurate
and correct, but also that it be sufficiently clear to convey advice intelligibly to its
target audience. Clarity will not be achieved by trying to imitate Lord Denning’s style.
Instead, it requires going through the mental exercise of approaching what been
written from a layman’s perspective and trying to translate it into terms which can be
understood.
There are a couple of elements that are important:
•
Objectivity & Certainty Writing for academic purposes is usually directed at
supporting a particular thesis. In contrast, research memos should generally be
objective; where there are arguments or authorities in favour of different views
42
or interpretations, these should all be analyzed in the memo before a
conclusion is reached and expressed as to the preferable answer.
•
Organization & Presentation There are no rules that the memo must follow.
The use of headings, however, are helpful to organize the argument into logical
sections. Summarizing the facts, issues and conclusions at the beginning of the
memo are usually helpful in providing the reader with a map of where the
memo is going and in clarifying, even for the author, precisely what the memo
is saying. The longer the memo, the more important is such a summary in
order to assist the reader in following the analysis. If possible, it is helpful to
organize a plan of the memo prior to commencing to draft it.
43
Memorandum
To
From
Date
Subject
National Anti-Poverty Organization ("NAPO")
Jane Doe, Pro Bono Students Canada ("PBSC")
March 15, 2014
Feasibility of Enacting a Bylaw on Panhandling
Introduction
You have asked me to provide you with a general research memo on whether the Constitution
allows Canadian municipalities to place any limits on panhandling or can ban panhandling
altogether in a geographic area.
To determine if a municipality can enact by-laws relating to panhandling, a first issue to consider
is whether the municipality has the delegated authority to enact the by-law. Provided a
municipality has the requisite authority to enact an anti-panhandling by-law, it will then need to
be determined if there any Charter limits on this authority. To generate this memo, I have
considered and reviewed: statutory language, jurisprudence and commentary on Canada's
panhandling by-laws.
This memo is divided into four parts. In Part 1, I consider the authority of a municipality to
enact a by-law relating to panhandling. In Part 2, I examine the Charter limits on a
municipality's authority to enact a by-law relating to panhandling. In Part 3, I look at whether a
municipality can prohibit all panhandling throughout certain geographic areas such as a
downtown core. Finally, in Part 4, I consider Canada's international commitments and their
relation to panhandling laws.
Summary of Recommendations
A municipality does not have express statutory authority to enact by-laws related
specifically to panhandling. Nevertheless, it is likely that certain express powers given to a
municipality are broad enough to capture panhandling and related conduct.
Should a municipality decide to enact a by-law to limit panhandling, it will have to ensure
that any limits are related to the powers under which it enacts the by-law and that the bylaw does not infringe rights guaranteed under the Charter. Based on the existing case law, it
would appear that limits aimed at the message conveyed by panhandlers would not be
upheld in the event of a Charter challenge, although limits on the manner or location of
conveyance may be upheld, particularly if the limits address threatening, violent or
obstructive forms of expression.
44
The Courts would likely set the standard very high for banning panhandling altogether in
city streets in a geographic area, because it is a form of expression. In order to justify a total
ban under Section 1 of the Charter, a municipality would need significant evidence on what
the problem is, what the alternatives to banning are, and what has been done to test the
potential success of those alternatives. The success of a municipality in defending a
challenge to a by-law limiting panhandling will depend on the strength of the evidence
connecting the limits set out in the by-law to the sphere of jurisdiction on which a
municipality relies to enact the by-law. Until a draft by-law is circulated, it is not possible at
this time to conclude on its constitutionality.
PART 1: Authority of a Municipality to Enact a By-Law Relating to Panhandling
Municipalities are creatures of statutes. They are given the right to pass by-laws through
various provincial acts. Municipalities can therefore only exercise powers which are
expressly conferred by statute or which, though not expressly set out, are necessary or
implied for the exercise of an express power.
There are no statutory provisions which expressly give a municipality authority to enact bylaws for the purpose of limiting or prohibiting panhandling. Generally speaking, however,
cities do have express powers on which they may be able to rely, in order to address
panhandling in various contexts. The following general spheres of jurisdiction, although
they will be differnt for each city, may provide authority to enact by-laws relating to
panhandling:
a) economic, social and environmental well-being of a municipality;
b) health, safety and well-being of persons; and
c) protection of persons and property, including consumer protection.
In order to rely on one of the preceding spheres of jurisdiction as authority to regulate or
prohibit panhandling, a municipality must demonstrate that there is a connection
between the activity sought to be regulated or prohibited, and the sphere of jurisdiction.
Accordingly, if, for example, a municipality wished to regulate or prohibit panhandling by
relying on the "economic, social, and environmental well-being of a municipality", it will
have to adduce evidence that panhandling is related to the municipality's prosperity.
A municipality may have difficulty in proving a connection between panhandling and the
"protection of persons and property, including consumer protection".
It must carefully consider which activities associated with panhandling could be
covered by a by-law. This may require differentiating between aggressive
panhandling versus peaceful panhandling; the location of panhandling; and the
times at which people are allowed to panhandle.
Furthermore, panhandling is also partially regulated by provincial and federal law.
Panhandling that is done in a way that is threatening or violent or obstructive may be
contrary to laws such as the Safe Streets Act and/or the Criminal Code. In Ontario, for
example, aggressive panhandling is illegal under that province’s Safe Streets Act. The
Criminal Code sets out a comprehensive range of offences which protect the public
45
against harmful conduct, including laws against harassment, intimidating, mischief,
assault, uttering threats, theft, etc.
PART 2: Limits on a Municipality's Authority to Enact a By-Law Relating to
Panhandling
In addition to proving that a municipality has the statutory authority to enact a by-law
relating to panhandling, a municipality must also comply with the Canadian Charter of
Rights and Freedoms (the "Charter").
Charter challenges to by-laws or legislation pertaining to panhandling and associated
behaviour have most commonly alleged infringements of the freedom of expression
(s.2(b)). It may, however, also be possible to launch a challenge under the right to equal
treatment (s.15) or the right the right to life, liberty and security of the person (s.7).
[A] Freedom of Speech
Peaceful panhandling it involves both a communication of a personal plight and a
reminder to the public of the existence of poverty. Therefore, as a first Charter
consideration, peaceful panhandling is protected expression within the meaning of
Section 2(b) of the Charter.
There are two main cases on panhandling and the Charter. They are:
•
•
Federated Anti-Poverty Groups of British Colombia v. Vancouver (City) (2002), 28
M.P.L.R. (3d) 165 (B.C.S.C.); and
R. v. Banks (2007), 275 D.L.R. (4Ih) 640 (Ont. C.A.) (Leave to Appeal to S.C.C.
denied).
Both cases find that panhandling, at least in its passive form, is protected by Section 2(b)
of the Charter,which is the Section that protects freedom of expression.
In Federated Anti-Poverty Groups of British Colombia, the Court said: "Panhandling is a
tool used by those in poverty to engage in dialogue with the rest of society about their
plight. As such, it is form of expression"(at para. 151).
In R. v. Banks, a case that challenged the Safe Streets Act, 1999 (the "SSA"), the Ontario
Court of Appeal acknowledged that peaceful panhandling for some low income people is
the only accessible means by which they can readily communicate their daily reality: "The
act of begging is communication and is evidently expression. [...] The message "I am in
need and I am requesting your help" is primary communication that seeks and invites
participation in the community" (at para. 121).
Accordingly, it may be argued that, by restricting the content of, location where, manner in
which and persons with whom panhandlers may engage in the peaceful solicitation of
donations for themselves or for others in many public spaces, regulating panhandling
infringes freedom of speech. This is best said by Herkshoff and Cohen in a Harvard Law
Review article:
When a beggar begs, one member of a stigmatized group steps forward and, on a
human level, engages a member of the mainstream in her problems her life. It is at
best a rough form of communication that can produce a rough sense of engagement.
But it is capable of producing understanding and awareness among people who might
46
otherwise never think about the poor or who might never think about them in a
positive way. 1
[B] The Deprivation of Liberty and Security of the Person
Section 7 of the Charter provides: "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." Life, liberty and security of the person are interests protected by
section 7, but the section is only violated if the infringement of those interests is not in
accordance with the principles of fundamental justice.
It can be argued the impugned sections infringe the right to liberty and security of the
person and contravene the principles of fundamental justice in that they are overbroad
and vague. Although the exact wording of the definition of "panhandling" is unknown at
this time, if the offence of panhandling is described so broadly as to encompass conduct
incapable of causing any blameworthy harm, the law may be void for vagueness. For
example, if panhandling is described to encompass all people requesting money, would a
person looking to use two quarters to make a pay phone call be engaging in panhandling?
Drawing on this example, depending on its definition of panhandling, a by-law may
provide an unintelligible standard for both for the citizens it governs and the officials who
must enforce it. If this is the case, such deprivations of liberty and security of the person
would not be in accordance with the principles of fundamental justice.
Secondly, it can also be argued that a panhandler’s right to security of the person is
infringed because the prohibition of the activity of panhandling causes him or her serious
psychological stress and denies the necessities of life. Those who engage in panhandling
are among the most disadvantaged individuals in society, who often experience health
and security issues that prevent them from maintaining employment. While section 7 of
the Charter does not protect economic rights generally, it can be argued that it does
protect those economic rights that are fundamental to human life and survival. This
argument would, however, not likely succeed in the courts. The Ontario Court of Appeal
rejected a similar argument advanced by individual landlords affected by the retroactive
voiding of approved rent increases in A & L Investments Ltd. v. Ontario 2:
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.
[C] Discrimination
It may be argued that the proposed by-law has a disproportionate adverse effect upon
panhandlers by restricting their ability to peacefully use and enjoy public spaces, to
express themselves and to meet their basic needs. It exacerbates the pre-existing
stigmatization of panhandlers by penalizing behaviours that are peaceful, benign and
1Hershkoff, Helen & Adam S. Cohen, "Begging to Differ: The First Amendment and the Right to Beg" (1991)
104(4) Harvard Law Review 896.
2
(1997), 36 O.R. (3d) 127.Goudge J.A. wrote at 136.
47
lacking in moral blameworthiness. The by-law may be argued to send a message that
panhandlers are less worthy of dignity and respect than other citizens within the
municipality. It could potentially deny panhandlers the equal protection and benefit of the
law and equality before and under the law based on personal characteristics which are
prohibited grounds of discrimination including: poverty, homelessness, disability, race
and/or addiction to drugs or alcohol.
It is worth noting that while the "poor" would more likely be more disadvantaged by a
regulation of panhandling by-law, without further categorization the term signifies an
amorphous group, which is currently not analogous to the grounds enumerated in section
15. 3 The "poor" are thus not a discrete and insular group defined by a common personal
characteristic. At this time, it is unlikely that a section 15 challenge would succeed.
PART 3: Can a Municipality Prohibit all Panhandling Throughout Certain
Geographic Areas such as a Downtown Core?
As demonstrated in Part 2, courts have found that panhandlingis a form of expression
protected by Section 2(b) of the Charter. The Courts have also upheld the right to regulate
such panhandling. The question now is whether a municipality can move beyond
regulation to a complete ban on all panhandling within a geographic area.
The courts will have to determine if the objective of improving the economic vibrancy of
the downtown core is important enough to warrant overriding the right guaranteed by s.
2(b). The onus will be on the given City to justify a move from regulation to a total ban.
That justification must be made under Section 1 of the Charter. The test for a Section 1
justification is setout in a Supreme Court of Canada case called R. v. Oakes, [1986] 1
S.C.R. 103. A municipality must show that:
(a) the limitation on the right (to panhandle) is directed at a pressing and substantial
objective (mere inconvenience is insufficient); and that
(b) the limitation is proportionate (meaning, not overbroad).
"Proportionate" means that the bylaw must be drafted with sufficient precision to address
the problem, but do so with as little interference with the protected right as possible. A fair
balance must be struck between the rights of the panhandlers and the rights of others
using the street.
The municipality's objective in regulating panhandling, which is, say, to improve business
and enhance the experience of tourists, might be justified as a "pressing and substantial
objective". However, a bylaw banning all panhandling, including passive panhandling, in
the entire city may not meet the proportionality test. It would depend on the quality of the
evidence adduced. Prohibiting persons from panhandling will have to be rationally
connected to the legislative objective. That is, reducing the presence of panhandlers
would have to be shown to be rationally expected to increase tourist and business activity.
3
R v. Banksatpara. 104-05.
48
In order to meet the proportionality test, the City would need to show that:
(a) a ban on panhandling is necessary in wide geographic areas such as a downtown
core;
(b) a general ban is necessary on passive panhandling within those areas; and that
(c) other regulatory methods of dealing with the problem of panhandling, will not
address the issue.
It is instructive to turn to examples of Canadian municipalities that have enacted
panhandling regulations, to see how they have dealt with anti-panhandling laws. It would
appear that, in recognition that panhandling is a permitted activity, no existing by-laws in
any Canadian jurisdiction currently contain an absolute prohibition on panhandling. There
are by-laws that contain provisions designed to control such issues as obstructive,
repetitive soliciting, loitering and some of the by-laws including restrictions on
panhandling at certain times and locations (see appendix 1). Many cities, including both
Calgary and Winnipeg, have enforcement programs on aggressive panhandling which are
coupled with strong outreach programs. Before any municipality institutes a ban, a court
would likely consider to what extent a municipality has tested an outreach program.
Based on City of Montreal v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141 (at para. 81), the
presumption is that forms of expression will be allowed in some way on a public street.
The facts of this case involved a by-law concerning noise pollution. An important factor in
the majority’s ruling (which upheld the by-law as justified under Section 1 of the Charter),
was the fact that the by-law did not represent an absolute ban. Thus, the bar would be set
very high under Section 1 to justify the use of a complete ban on an activity such as
panhandling.
PART 4: International Law
If the above legal analysis is not conclusive, you may wish to raise Canada's international
commitments. It can be argued that introducing panhandling laws would not comply with
international human rights law regarding economic security.
Article 11 of the United Nations International Covenant on Economic, Social and Cultural
Rights, which Canada ratified in 1976, recognizes the “right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement of living conditions.” 4
In 1993, the United Nations Committee, in reviewing compliance with the ICESCR, focused
on Canada’s non-compliance with article 11, including Canada’s failure to apply the
“maximum of available resources” to the progressive realization of this right. The
Committee strongly condemned the level of poverty among vulnerable groups, the gap
between social assistance rates, and the minimal allocation of resources to address
homelessness. The Committee also expressed concern about the failure of lower courts to
enforce the right to an adequate standard of living as a component of sections 7 and 15 of
the Charter. Although section 7 and 15 challenges have yet to succeed with respect to
panhandling, the Committee's concern may suggest further Charter challenges to
panhandling laws down the road.
4
(1976), 993 U.N.T.S. 3 [ICESCR].
49
Appendix 1 5
By-law
Types of Restrictions
Calgary
No. 3M99 – Regulating -Time (between hours of 8 p.m. - 8 a.m.) Panhandling
Location (within 10 metres of a bank,
credit union, ATM, transit stop) Obstructing traffic -Repetitive solicitation Soliciting people in a vehicle
Vancouver
No. 8309 s.70A – The
Street and Traffic Bylaw
(aka the panhandling bylaw)
Halifax
City of Halifax Ordinances -Obstructing a person -Loitering or
Number 180 - Respecting congregating in a manner that disturbs
others
Streets
Montreal
RBCM,
c.
P-12.2
- -Obstructing traffic -loitering -prowling Concerning
Cleanliness lying drunk
and Protection of Public
Property
and
Street
Furniture
New York
Section 240.35 of the New -Loitering, remaining or wandering in a
York State Penal Law
public place for the purposes of begging*
New York City
Section 10-136 of the New -Aggressive solicitation in public places York Administrative Code
solicitation at certain locations such as a
bank, atm, cheque cashing business soliciting people in vehicles
5
-Obstructing traffic -Soliciting in a group
of three or more persons -Location (within
10 meters of a bank, atm) -Soliciting from
persons in a vehicle
City of Toronto legaldocs.
50