Police's ability to enforce order 'very circumscribed,' says Joseph Neuberger
While the declaration of a state of emergency allows the province to make health directives, it does not change how police can interact with the public, says criminal defence lawyer Joseph Neuberger.
On Thursday Jan. 14 at 12:01 am, Ontario’s new stay-at-home order came into effect. The directive will last a minimum of 28 days and Ontarians are required not to leave their homes, except for essential purposes, including accessing healthcare, grocery shopping and outdoor exercise.
But the police’s ability to enforce the restrictions contained in the order will be “very circumscribed and extremely difficult,” says Neuberger, who is certified by the Law Society of Ontario as a specialist in criminal law.
“The Charter hasn't disappeared because of this pandemic,” he says. “Police are not allowed just to randomly stop people and ask them questions. There has to be some lawful basis to stop people.”
Police cannot make a traffic stop, or stop a person walking down the street, and compel the driver or pedestrian to answer questions related to the stay-at-home order, says Neuberger. Because of s. 7 of the Charter, which guarantees the right to life, liberty and security of the person, Canadians have the right to remain silent. Section 9 – the right not to be arbitrarily detained or imprisoned – gives them the right to walk away.
If the traffic stop is made pursuant to the Highway Traffic Act or to check on the driver’s sobriety, police can ask for identification and question the driver. But the driver can limit their answers to name and address, he says.
“They don't have to say anything beyond that because it's an investigation into a Highway Traffic Act offense,” says Neuberger. “And there's never an obligation, when stopped by police, to cooperate with them. Never. Those are rights we have enshrined in the Charter.”
To stop and question a person walking down the street, the police need reasonable grounds to believe that person has committed an offence, he says. To investigate whether that person is out in breach of the stay-at-home order, that person would have to be making it “blatantly obvious” they were doing something non-essential, says Neuberger.
Sitting and drinking a beer on a park bench would paint a clear enough picture to establish an evidentiary basis for the police to investigate, he says. But walking through a park and sitting for a few minutes would not.
“You're allowed to be out for exercise and that doesn't mean you have to be in constant motion,” says Neuberger.
Ontario’s stay at home order also comes after years of controversy around the police’s use of street checks, also known as carding. In 2017, following the Report of the Independent Police Oversight Review, by Justice Michael Tulloch of the Court of Appeal, amendments to the Police Services Act changed the rules police must follow when interacting with citizens. Police must now have a reason to ask a person for identification, must tell that person why they are asking for identification and they must also let that person know that they may refuse.
When it comes to enforcing the health directives on businesses, police have greater enforcement abilities, says Neuberger. Police can perform random checks to ensure essential businesses are operating at capacity and patrons are wearing masks. They can shut down non-essential businesses remaining open and serving customers.