Page - 287 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

CHAPTER C-4 The Punitive Impact of Physical Distancing Laws on Homeless People* Terry Skolnik** Abstract One of the hallmarks of COVID-19 is that it disproportionately impacts vulnerable individuals and groups. The State’s punitive legal responses to the pandemic are no different. This chapter shows why coercive physical distancing laws disparately impact homeless peo- ple. It argues that harsh financial penalties for violating these laws can constitute cruel and unusual punishments that contravene s. 12 of the Canadian  Charter  of  Rights  and  Freedoms. It challenges prevail- ing s. 12 Charter jurisprudence and demonstrates why expensive fines amount to cruel and unusual punishments even when judges have discretion to modify their severity. After situating the regulation of homelessness within its historical context, it concludes by setting out why homeless people are uniquely vulnerable to over-policing. Ultimately, this chapter elucidates why a public health approach to both COVID-19 and homelessness are necessary and why neither can be punished out of existence. * I thank Anna Maria Konewka, Michelle Biddulph, Nayla El Zir, Mary Roberts, Vanessa MacDonnell, and the anonymous reviewers for comments on prior drafts. All mistakes are my own. ** Assistant Professor, University of Ottawa, Faculty of Law, Civil Law Section.