Page - 289 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

289The Punitive Impact of Physical Distancing Laws on Homeless People acts such as sleeping on public property, wandering without giv- ing an adequate account of one’s conduct, and not having a visible means of employment. Within the past several decades, the rise of quality-of-life offences—ordinances that regulate low-level incivili- ties to promote residents’ quality-of-life—has led to an explosion in the number of fines that are issued to homeless people in many Canadian cities.4 There have been few positive legal developments for homeless people in the courts. Some judges have struck down municipal by-laws that prohibited homeless people from erecting temporary shelters on public property when there were insufficient shelter spaces available to them.5 Courts have ruled that certain mandatory financial penalties constitute cruel and unusual punishments in violation of s 12 of the Canadian  Charter  of  Rights  and  Freedoms.6 Yet outside of these contexts, the state continues to have significant power to regulate homeless people’s most rudimentary acts and further entrench them in homelessness.7 The Charter has failed to bring about changes that would require the state to alleviate homelessness and address its root causes.8 Courts have rejected poverty and homelessness as analogous grounds of discrimination, such that groups experiencing these conditions lack constitutionally protected status under s 15 of the Charter.9 Courts have also concluded that there is no constitutional right to housing encompassed within s 7.10 Since judges interpret the scope of home- less people’s rights restrictively and recognize that the state’s power to regulate homelessness is broad, homeless people continue to be subject to unique legal and social vulnerabilities. In this chapter, I show why punitive legal responses to the COVID-19 pandemic will exacerbate these vulnerabilities. I argue that 4. See for example Céline Bellot & Marie-Ève Sylvestre, “La judiciarisation de l’itinérance à Montréal  : les dérives sécuritaires de la gestion pénale de la pauvreté” (2017) 47 RGD 11 at 19-22. 5. Victoria  (City)  v  Adams, 2009 BCCA 563; Abbotsford  (City)  v  Shantz, 2015 BCSC 1909 [Shantz]. 6. R v Boudreault, 2018 SCC 58 [Boudreault]. 7. Terry Skolnik, “Rethinking Homeless People’s Punishments” (2019) 22:1 New Crim L Rev 73 at 81-84. 8. Marie-Ève Sylvestre, “The Redistributive Potential of Section 7 of the Canadian Charter: Incorporating Socio-economic Context in Criminal Law and in the Adjudication of Rights” (2012) 42:3 Ottawa L Rev 389 at 401-08. 9. Tanudjaja  v  Canada  (Attorney  General), 2013 ONSC 5410 at paras 122-37 [Tanudjaja]; Shantz, supra note 5 at para 231. 10. Tanudjaja, supra note 9.