Page - 296 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE296 have no refuge from these laws. This makes it extremely difficult—if not impossible—for homeless people to comply with certain laws that govern public property.37 The second reason why COVID-19-related laws disproportion- ately affect homeless people is rooted in the fact that police officers enjoy particularly broad discretion when enforcing these laws. Before the pandemic, homeless people were issued significant fines for con- duct such as sleeping on a picnic table and sitting on the edge of a water fountain. These financial penalties were imposed for the ambig- uous offence of “us[ing] street furniture for a purpose other than the one for which it is intended” (whatever that means).38 COVID-19 laws generate similar concerns about the scope of police officers’ discre- tion. In response to the pandemic, the Government of Quebec issued an Order in Council that prohibits “outdoor assemblies,” even though the decree does not define that term, leaving individual officers to determine its meaning.39 Police have also encouraged individuals to denounce others who disobey physical distancing guidelines.40 This creates an added risk of discriminatory enforcement, especially given how subconscious biases and prejudice can influence both individu- als’ decisions to denounce others and officers’ discretion to enforce fines. Furthermore, it adds to the harassment that many homeless people already experience.41 Finally, the cumulative effect of quality-of-life offences and COVID-19-related laws place many homeless people in the untenable position of having to sleep in a shelter and expose themselves to the virus, or risk receiving a fine for occupying public space. It is impor- tant to note that even prior to the pandemic, many homeless shel- ters had unsanitary conditions. There are many documented cases of tuberculosis and other communicable disease outbreaks in shelters 37. Terry Skolnik, “Homelessness and the Impossibility to Obey the Law” (2016) 43:3 Fordham Urb LJ 741 at 750-76. 38. Ibid at 771; City of Montréal, by-law 99-102,  By-Law  Concerning  Cleanliness  and  Protection  of  Public  Property  and  Street  Furniture  (17 May 1999), s 20; Sylvestre & Bellot, supra note 26 at 173. 39. OIC 222-2020, (2020) GOQ II, 771A (concerning  renewal  of  the  public  health  emergency  under  section 119  of  Public Health Act and certain measures to protect the health of the population). 40. Luscombe & McClelland, supra note 11 at 4. 41. See for example Bill O’Grady, Stephen Gaetz & Kristy Buccieri, “Can I See Your ID? The Policing of Youth Homelessness in Toronto” (2011) at 11, online (pdf): Homelessness Hub <www.homelesshub.ca/sites/default/files/attachments/ CanISeeYourID_nov9.pdf>.