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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.
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