Continued monitoring required to ensure racialized and marginalized are not targeted: lawyer
While the Ontario Government has rolled back its grant of extraordinary police powers to enforce the stay-at-home order, the Province has still extended the police’s power to stop and question people, say lawyers.
On Friday, April 16, Premier of Ontario Doug Ford announced that in response to the steep rise in COVID infections, the province would be intensifying the police’s power to enforce the stay-at-home order through a new Order in Council, which amended regulations under the Emergency Management and Civil Protection Act.
The changes, which were to go into force immediately Saturday morning, would have allowed police to stop and question anyone not in their residence about their address and reason for being outside. Police would also be entitled to pull over motorists for questioning. Those subject to these new powers would be required to “promptly comply,” said the Order.
But on Saturday, after a number of Ontario police forces announced they would not be using these enhanced powers, the Province moderated. Police would only be permitted to stop and question someone if they have reason to suspect they are “participating in an organized public event or social gathering,” said a statement from the office of the Solicitor General Sylvia Jones.
“They still have extended police powers by a significant amount,” says Abby Deshman, a lawyer and the director of the criminal justice program at the Canadian Civil Liberties Association. “Much less than originally proposed, but the new regulation that was filed on Saturday still allows police to demand a range of information from people, beyond just their name and address, simply on grounds of suspecting that the person is in violation of the COVID orders.”
Though “nowhere near as dire” as with the police powers proposed Friday, there remains “real concerns” with the constitutionality of police power to enforce the stay-at-home order, she says.
“I think there's definitely potential Charter considerations,” says Jacob Roth, associate counsel and litigator at Robichaud's Barristers and Solicitors. “The police now, under the new standard, if they suspect that you are violating the order, they can stop you. And one thing that's concerning is during that stop, they might develop in their minds reasonable grounds to search or arrest you for something else.”
“Reason to suspect” is also a lower standard than which would normally be required to stop and question someone on the street, he says.
Another concern is whether police will exercise this power randomly, or “consciously or unconsciously” target people from racialized groups, says Roth.
The CCLA will continue to monitor how the new police powers are being used, says Deshman.
“Since the beginning of COVID, we've had a form on our website that people have been filling out, documenting their interactions with law enforcement and COVID related enforcement efforts,” she says. “And we raised a number of concerns in the first wave of COVID, about how enforcement was playing out in Ontario, and the punitive approach that many law enforcement agencies were taking, ticketing people who were just doing their best to live within extraordinary circumstances.”
“We will be continuing to collect people's experiences and continuing to monitor, in particular, how policing through the third-wave of COVID is impacting those racialized and marginalized communities that are facing the brunt of COVID as well.”
After the news on Friday, the CCLA announced it would be challenging the new police powers before the Ontario Superior Court, arguing they violated ss. 7, 8, 9 and 15 of the Charter. Following the province’s revision, the CCLA said it shelved the lawsuit.
“It was the very definition of arbitrary detention,” says Deshman. “And so we were immediately extremely concerned. And in particular, concerned about how this authority would be used and would impact the communities that are already disproportionately impacted by policing, police stops, detentions and searches.”
“So that’s Black Ontarians, Indigenous persons, people who are living on the streets or in precarious housing, all of the communities that are disproportionately stopped, questioned and charged by police already.”
The law would also disproportionately impact the essential workers who would need to be out, travelling to and from work, says Deshman.