Page - 290 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE290 laws governing physical distancing will disproportionately impact homeless people and shows why these laws raise serious constitu- tional concerns. Building on existing case law, I demonstrate why financial penalties for breaching physical distancing laws can consti- tute a cruel and unusual punishment for indigent and homeless per- sons. I then situate the regulation of homelessness within its historical context, explaining how laws that govern homeless people emerged following the Black Plague—a pandemic that occurred in the 1300s. After discussing how the notion of public health continues to play a role in justifying laws that regulate homeless people, I conclude by setting out why people experiencing homelessness are particularly vulnerable to coercion from laws that are enforced to prevent the transmission of COVID-19. Punitive Responses to COVID-19: An Overview The COVID-19 pandemic has led to unprecedented governmental responses that aim to curb its spread. State-sanctioned coercion and punishment are playing a fundamental role in ensuring that individu- als obey physical distancing guidelines to prevent COVID-19 infec- tions, complications, and deaths. Alexander McClelland and Alex Luscombe explain that in response to COVID-19, governments and the police enforce three types of punitive laws: the Criminal Code, provincial health laws, and munic- ipal ordinances.11 First, with respect to the Criminal Code, defendants charged with COVID-19-related crimes are often accused of assault for coughing on others, especially police officers.12 Second, many indi- viduals are issued harsh fines for violating public health legislation that mandates physical distancing—financial penalties that can cost upwards of roughly $1,500 in Quebec and a minimum fine of $750 in Ontario. Third, some municipalities, such as Brampton, Ontario, have adopted their own municipal by-laws that result in a minimum fine of $500 and a maximum fine of $100,000: twice the maximum fine that 11. Alex Luscombe & Alexander McClelland, “Enforcement Report April 14 2020- May 1 2020” (2020) at 1-6, online (pdf): Policing  the  Pandemic <static1.squarespace. com/static/5e8396f40824381145ff603a/t/5eae43d69d70876a67c26421/ 1588478934909/Police_the_Pandemic_Report_1May2020.pdf>. 12. Ibid at 4-5. See also Alex Luscombe & Alexander McClelland, “Searchable Database” (2020), online: Policing  the  Pandemic <policingthepandemic.github.io/ table/>.