Page - 293 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

293The Punitive Impact of Physical Distancing Laws on Homeless People penalties can still be cruel and unusual even where judges have dis- cretion to modify them. If judicial discretion were sufficient to ensure that financial pen- alties respect s 12 of the Charter, it would lead to the absurd conse- quence that a $100,000 fine imposed on a homeless person is not a cruel and unusual punishment, even where personal and systemic circumstances prevent them from accessing the justice system to chal- lenge the fine. Homeless people experience serious stress and anxiety from these fines, and there is no guarantee that judges will exercise their discretion in homeless people’s favour. Furthermore, as the Supreme Court of Canada noted in Boudreault, homeless people are subject to threats of imprisonment for their criminal justice debts.25 Unpaid fines also carry significant collateral consequences, such as a destroyed credit rating, which entrenches them in poverty. For these reasons, notwithstanding judicial discretion, harsh financial penalties may constitute cruel and unusual punishments for society’s most economically disadvantaged members of society who lack access to justice. Homeless people already face significant stigma, social exclusion, and marginalization—realities that the pandemic has worsened considerably. Situating Punitive Responses to COVID in Their Historical Context The historical context surrounding the criminalization of homeless- ness shows why homeless people risk being over-policed and dispro- portionately punished during the pandemic. Historically, homeless people were regulated by vagrancy laws that originated in England after the Black Plague.26 The pandemic arrived as feudalism was breaking down and workers were gaining greater economic autono- my.27 The Black Plague killed a significant portion of the country’s working population. The resulting labour shortages allowed workers 25. Boudreault, supra note 6 at paras 69-73. 26. For a historical overview of vagrancy statutes and their connection to quality-of- life laws, see Marie-Eve Sylvestre & Céline Bellot, “Challenging Discriminatory and Punitive Responses to Homelessness in Canada” in Martha Jackman & Bruce Porter, eds, Advancing  Social  Rights  in  Canada  (Toronto: Irwin Law, 2014) at 162-67. 27. Bertha Haven Putnam, The  Enforcement  of  the  Statutes  Labourers  During  the  First  Decade  after  the  Black  Death,  1349-1359 (New York: Columbia University, 1908) at 1-5.