1. As Caleb Foote labels them in his classic study, “Vagrancy-Type Law and Its Administration” (1956) 104 University of Pennsylvania Law Review 603CrossRefGoogle Scholar.

2. So called “quality of life” violations have been most notoriously enforced under the New York City administration of Rudolph Giuliani, where a 24-hour toll free number (677-LIFE) takes complaints against panhandling, loitering, “squeegee people,” loud radios and poop'n scoop violations. The “LIFE” line was opened as city council passed a bill to ban panhandling. Kocieniewski, David, “City Police Open a Hot Line For Quality-of-Life Violations" The New York Times (14 September 1996) L23Google Scholar.

3. See, e.g., Laforte, M., “The Constitutional Implications of Anti-Drug Loitering Ordinances in Ohio” (1993) 18: 2University of Dayton Law Review 423Google Scholar; Trosch, William, “The Third Generation of Loitering Laws Goes to Court: Do Laws that Criminalize ‘Loitering With The Intent to Sell Drugs’ Pass Constitutional Muster?” (1993) 71 North Carolina Law Review 513Google Scholar; Poulos, Peter W., “Chicago's Ban On Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws” (1995) 83 California Law Review 379CrossRefGoogle Scholar; Bright, David, “Loafers Are Not Going to Subsist Upon Public Credulence: Vagrancy and The Law in Calgary, 1900–1914” (1995) 36 Labour 55Google Scholar.

4. Document 17, City of Oshawa, By-Law No. 72–94, A By-Law of The Corporation of the City of Oshawa being a by-law for the prohibition and abatement of certain public nuisances in the City of Oshawa (25 July 1994) [hereinafter Public Nuisance By-Law 72–94], ROR in whole.

5. For a thoughtful discussion of the social meanings of “hanging out,” see Childress, Herb, “No Loitering: Some Ideas About Small Town Teenage Hangouts” (1993) 5 Small Town 20Google Scholar.

6. Document 40, Minutes of a Meeting of The Downtown Board of Management (23 November 1992), ROR in whole.

7. The “problem areas” identified in the strategy included St. Vincent's Kitchen, a drop-in centre which serves meals, Spanky's Amusement Centre and a Coffee Time Donut Store. Ibid.

8. The committee also suggested that the police provide “monthly updates to merchants” and have pagers so “merchants can call officerf[s] directly”. Interestingly, the merchants complained that the police seemed to be loitering and “hanging around” while on duty: the committee suggested that the police “have to have an objective for being downtown (not downtown to stroll)”, that police should follow a “consistent schedule” and “should be visible to pedestrians and merchants”. Ibid.

9. Document 77, Memo from Councillor Spring to Executive Committee (18 February 1993), ROR in whole.

10. Document 75, Executive Committee Minutes (1 March 1993), ROR in whole.

11. Document 73, Directive from Executive Committee (4 March 1993), ROR in whole; Document 74, Executive Committee Agenda (1 March 1993), ROR in whole; Document 75, ibid.

12. Document 16, Blank Copy of the Questionnaire Distributed Together with a Distribution List, ROR in whole.

13. Document 4, Responses to the City of Oshawa Questionnaire [respecting by-law to regulate ordering on municipal streets] (29 May 1993), ROR in whole. After reviewing Document 14, Copies of Responses to The Questionnaire Distributed by City Clerk's Office, ROR in whole, I am satisfied that the synopsis summaries are accurate.

14. St. Stephen's City By-Law No. 50, A By-Law Respecting Loitering and Begging (15 May 1978), s. 1, was voided by Honourable Mr. Justice John Turnball for being too vague and uncertain. The voided section reads: “No person shall loiter unless such person, when required to do so, justifies his reason for doing so.” Cited in Document 10, Letter from Wayne W. Tallon, manager for the town of St. Stephen, New Brunswick [to the Oshawa city clerk] (3 June 1993), ROR in whole, including its enclosures.

15. Document 12, A Memorandum from Constable David Morton of the Durham Regional Police Services to the City Clerk (6 July 1993), ROR in whole. One can only wonder to what extent the Brantford police appreciated the irony of using police to “stand in very close proximity to the group of loiterers” in order to curtail loitering. One can only presume that this form of “standing around” was considered more productive than how the merchants saw the police “hanging around” downtown Oshawa.

16. “Every council may pass such by-laws and make such regulations for the health, safety, morality and welfare of the inhabitants of the municipality in matters not specifically provided for by this Act as may be deemed expedient and are not contrary to law.” [Emphasis added]. Document 30, Photocopy of Three Pages of the Municipal Act Distributed by Councillor Spring at the Executive Committee Meeting (25 April 1994), ROR in whole.

17. “Every one who … loiters in a public place and in any way obstructs persons who are there … is guilty of an offense punishable on summary conviction.” Criminal Code, R.S.C. 1970, c. C–34, ss. 171(l)(c), 195.1. There are significant and important issues surrounding the concept of ultra vires as it relates to local forms of legislation in Canada. However, for the purposes of this paper, I will restrict myself to how this opinion relates to the career of the by-law draft.

18. Much of the legal opinion provided to the city by solicitors has been shielded from access by the principle of solicitor-client privilege. However, a trajectory of the ultra vires opinion can be constructed from documents that have been released in part (Documents 19, 20, 21, 22, 27), as well as from a key legal opinion, Document 54, Confidential Memo from Assistant Solicitor to Executive Committee (15 June 1994), ROR in whole.

19. Interview with Councillor Judy Spring at Oshawa City Hall (19 July 1996) [hereinafter Spring].

20. Document 12, supra note 15.

21. Spring, supra note 19.

22. Ibid.

23. Document 27, Memo from the Assistant City Solicitor to the City Manager (2 May 1994), ROR in whole.

24. Document 33, Three Handwritten Notes (28 March 1994), ROR in whole. (1) Note from the Assistant City Solicitor to a staff member in the Legal Services Branch requesting the File; (2) Copy of a memo from the city clerk to the Councillor Spring indicating that the Assistant Solicitor would respond to the Councillor's concerns in the absence of the City Solicitor; (3) Handwritten note of the Assistant City Solicitor describing a voice mail message left for Councillor Spring.

25. Document 57, Executive Committee Minutes (25 April 1994), ROR in whole.

26. Ibid.

27. Document 29, Handwritten notes of the Assistant City Solicitor (3 pages in length) taken at the Executive Committee meeting (25 April 1994), ROR in whole.

28. Ibid.

29. Supra note 18.

30. Document 56, Memo from Executive Committee to City Manager (2 May 1994), ROR in whole.

31. Document 54, supra note 18.

32. Ibid. According to the assistant solicitor, “[w]e could not impose a stricter limit or a more lenient limit. We cannot create a situation where compliance with one law constitutes breach of the other. In addition, we could not charge a person with an offence under our by-law if the province was already prosecuting him/her for the identical offence (for the identical act) under the Provincial statute.”

33. Remarkably, the assistant solicitor does not explain how an example involving concurrent provincial legislation can be analogous to a situation involving the division of powers between municipal and federal legislation where the principle of paramountcy could be evoked.

34. Document 54, supra note 18 [emphasis added.]

35. Document 53, Confidential Memo from City Manager to Executive Committee (16 June 1994), ROR in whole. The city manager provided two options to the Executive Committee, either to “pass a by-law and enforce it while appreciating that it may be subject to challenge in the Courts,” or to “explore with other municipalities how they deal with similar problems, without a No loitering Bylaw.”

36. Document 21, Memo to Assistant City Solicitor from Deputy City Solicitor Re Instructions from Executive Committee (20 July 1994), ROR in whole.

37. Public Nuisance By-Law 72–94, supra note 4.

38. Corporation of the City of Oshawa, Department of Development and Planning Services, Vision 2000 City Centre Plan (May 1996) at 12 [hereinafter Vision 2000]Google Scholar.

39. Ibid. at 6.

40. Ibid. at 15.

41. Ibid. at 14.

42. Oshawa's Downtown Murals: Step Back Into History, pamphlet.

43. Ibid. Artist credit Dan and Peter Sawatzky.

44. Ibid. Artist credit Gus Froese. One councilor was reported to have stated that the change was “an insult to all the people who worked hard to unionize this city.” Indeed, the official description of the mural makes no mention of the strike, and instead is described as representing “the growth and prosperity which General Motors brought to Oshawa.” Legree, Brian, “Mural Headline Sparks Controversy” Oshawa This Week (11 August 1995) 1Google Scholar.

45. Supra note 4.

46. Hunt, Alan, Explorations in Law and Society (New York: Routledge, 1993) at 305Google Scholar. See also Hunt, Alan & Wickham, Gary, Foucault and Law: Towards a Sociology of Law as Governance (London: Pluto, 1994)Google Scholar.

47. Foucault, Michel, “Governmentality” in Burchell, G., Gordon, C. & Miller, P., eds., The Foucault Effect: Studies in Governmentality (Hemel Hempstead: Harvester Wheatsheaf, 1991) 87Google Scholar.

48. See Rojek, Chris, “‘The Eye of Power’: Moral Regulation and the Professionalization of Leisure Management From the 1830s to the 1950s” (1993) 15:1 Society and Leisure 357Google Scholar.

49. Valverde, Mariana, Studies In Moral Regulation (Toronto: Centre of Criminology, University of Toronto, 1994)Google Scholar.

50. Rojek supra note 48 at 356.

51. Mitchell, W.J.Thomas, Picture Theory: Essays on Verbal and Visual Representation (Chicago; University of Chicago Press, 1994) at 16Google Scholar.

52. Law, John & Whittaker, John, “On The Art of Representation: Notes on the Politics of Visualisation” in Fyfe, Gordon & Law, John, eds., Picturing Power: Visual Depiction and Social Relations (London: Routledge, 1988) 161Google Scholar.

53. See Thévenot's discussion of Taylor's much analyzed handbook which contains “a large repertoire of form-giving instruments” allowing the habituated movement of each worker's hands to be the “articulated parts of a single structure.” Thévenot, Laurent, “Rules and Implements: Investment in Forms” (1984) 23:1 Social Science Information 8Google Scholar.

54. Ibid. at 10.

55. Ivins, W. M., On The Rationalization of Sight (New York: Plenum, 1973)Google Scholar.

56. Latour, Bruno, “Visualization and Cognition: Thinking with Eyes and Hands” (1986) 6 Knowledge and Society: Studies in the Sociology of Culture Past and Present 1Google Scholar.

57. Ibid. at 7.

58. Ibid. at 8.

59. Latour, Bruno, Science in Action: How to Follow Scientists and Engineers through Society (Milton Keynes: Open University Press, 1987) at 223Google Scholar.

60. Callon, Michel & Law, John, “On the Construction of Sociotechnical Networks: Content and Context Revisited” (1989) 8 Knowledge and Society: Studies in the Sociology of Science Past and Present 64Google Scholar.

61. For a discussion of the dynamics of regulatory configurations, see Hermer, Joe & Hunt, Alan, “Official Graffiti of The Everyday” (1996) 3:30 Law and Society Review 501Google Scholar.

62. For example, the legal form of “officer” has been stabilized through legislation conferring specific police powers, through various “Police Services” acts, and through an immense dossier of case law establishing the legitimacy and authority of different forms of public officers.

63. Public Nuisance By-Law 72–94, supra note 4, s. 2.6.

64. Note the similarity between this section and the section voided for being too vague in the city of St. Stephen by-law, supra note 14.

65. “It shall constitute an offense for each of three or more PERSONS to stand in a group or near to each other on any HIGHWAY, or on pedestrian walkways, or i n any other public place, in such a manner as to obstruct a free passageway for PEDESTRIANS or vehicular traffic, after having been requested by an OFFICER to move on.” Public Nuisance By-Law 72–94, supra note 4, s. 2.3.

66. Ibid. at s. 2.4.

67. Ibid. at s. 2.2.

68. Ibid. at s. 1.2(a).

69. Document 45, Executive Committee Minutes (18 July 1994), ROR in whole.

70. The offense section reads: “It shall constitute an offense for a person to deface or damage any real or personal property which is owned by the city. Prosecution under this by-law with respect to this offense shall not preclude any other legal actions required to recover damages required to repair, replace or restore damaged real or personal property, as the case may be.” Public Nuisance By-Law 72–94, supra note 4 at s. 2.7. It does not seem unreasonable to suggest that this section is part of a strategy designed to gain civil restitution for damage to city property.

71. Hermer & Hunt, supra note 61.

72. Document 72, Durham Regional Police Services notice to Downtown Oshawa Merchants (6 April 1993), ROA in whole [emphasis added].

73. Douglas, William O., “Vagrancy and Arrest on Suspicion” (1960) 1: 3Yale Law Journal 70 [emphasis added]Google Scholar.

74. Phone Interview with Mayor Nancy Diamond (18 September 1996).

75. Abel, Richard L., “The Contradictions of Informal Justice” in Abel, Richard L., The Politics of Informal Justice, vol. 1 (New York: Academic, 1982) 267Google Scholar.

76. Ibid. at 270, 277.

77. Ibid. at 300.

78. For example, Councillor Spring argued that the by-law was desirable because it would save teenagers from having a criminal record, when in fact it was obvious that the police were not able to secure prosecutions from Crown prosecutors who were “sympathetic but not helpful.” Spring, supra note 19.

79. “A person is not guilty of the offense [of loitering] merely because he or she is ‘hanging around’,”as held in R. v. Munroe (1983), 41 O.R. (2d) 754. Councillor Spring had been provided with a copy of this decision by City Solicitor Couch five weeks before the 25 April 1994 Executive Committee meeting, as included in Document 34, Memo from the City Solicitor to Councillor Spring (18 March 1994), ROR in whole.

80. Lefebvre, H., Everyday Life In The Modern World, trans. Rabinovitch, S., (London: Penguin, 1971) 53Google Scholar.

81. Downtown Action Committee, The Motion Monitor (Summer 1996).