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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 oneâs conduct, and not having a visible
means of employment. Within the past several decades, the rise of
quality-of-life offencesâordinances that regulate low-level incivili-
ties to promote residentsâ quality-of-lifeâhas 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
CanadianÂ
CharterÂ
ofÂ
RightsÂ
andÂ
Freedoms.6 Yet outside of these contexts, the
state continues to have significant power to regulate homeless peopleâs
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 peopleâs rights restrictively and recognize that the stateâs 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 CĂ©line Bellot & Marie-Ăve Sylvestre, âLa judiciarisation de
lâitinĂ©rance Ă MontrĂ©alâ : les dĂ©rives sĂ©curitaires de la gestion pĂ©nale de la
pauvretĂ©â (2017) 47 RGD 11 at 19-22.
5. VictoriaÂ
(City)Â
vÂ
Adams, 2009 BCCA 563; AbbotsfordÂ
(City)Â
vÂ
Shantz, 2015 BCSC 1909
[Shantz].
6. R v Boudreault, 2018 SCC 58 [Boudreault].
7. Terry Skolnik, âRethinking Homeless Peopleâs Punishmentsâ (2019) 22:1 New
Crim L Rev 73 at 81-84.
8. Marie-Ăve Sylvestre, âThe Redistributive Potential of Section 7 of the Canadian
Charter: Incorporating Socio-economic Context in Criminal Law and in the
Adjudication of Rightsâ (2012) 42:3 Ottawa L Rev 389 at 401-08.
9. TanudjajaÂ
vÂ
CanadaÂ
(AttorneyÂ
General), 2013 ONSC 5410 at paras 122-37 [Tanudjaja];
Shantz, supra note 5 at para 231.
10. Tanudjaja, supra note 9.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Title
- VULNERABLE
- Subtitle
- The Law, Policy and Ethics of COVID-19
- Authors
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Publisher
- Ottawa Press
- Date
- 2020
- Language
- English
- License
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Size
- 15.2 x 22.8 cm
- Pages
- 648
- Categories
- Coronavirus
- International