COVID Update: Know Your Rights & Police Powers

From the Movement Defence Committee

Updated April 18, 2021

Political Context:

On April 17, 2021, facing the highest COVID-19 case counts and a slow roll out of vaccines especially in the hardest hit neighbourhoods, the Premier of Ontario and Ontario conservatives expanded police powers, choosing to address a public health crisis through individualized enforcement. These expanded police powers accompany an April Stay at Home order.

We know that not everyone can stay at home and that many people remain at risk for the virus because our public health approach has not prioritized essential workers for the vaccine and does not include income supports for people who lost work or paid sick days.

We also know that expanding policing powers will impact those already targeted by the police – especially racialized and poor communities. This legal guide provides more information on the stay at home order, as well as what powers the police do and not have under the new COVID rules.

The April 2021 Stay-at-Home Order

On April 7, 2021, the Ontario Government passed a new Stay-At-Home Order under its emergency powers. On April 17, 2021, the government granted new powers to police and provincial offences officers to enforce this Order.

The Stay-at-Home Order (O. Reg. 265/21) states that people should remain in their current residence at all times. Where necessary, you may only leave for one of 29 reasons laid out in the Order.

Short List of Acceptable Reasons

Some of the acceptable reasons for being outside of your home include (the full list of exceptions can be found in the Order):

(1) Working or volunteering where the nature of the work or volunteering requires the individual to leave their residence,

(2) Attending school or a post-secondary institution.

(3) Attending, obtaining or providing child care.

(4) Receiving or providing training or educational services

(5) Obtaining food, beverages and personal care items

(6)  Obtaining goods or services that are necessary for the health or safety of an individual, including vaccinations, other health care services and medications.

(8) Curbside pick up from a store that is open

(10) Obtaining financial services

(11) Obtaining government services, social services and supports, mental health support services or addictions support services

(12) Delivering goods or providing care or other support or assistance to an individual

(16) Exercising

(18)  Exercising an Aboriginal or treaty right as recognized and affirmed by section 35 of the Constitution Act, 1982.

(26) Obtaining goods or services that are necessary for the health or safety of an animal, including obtaining veterinary services.

New addition: Playgrounds and dog parks will be open and parks and recreation areas are open for walks, but many other outdoor recreational facilities have been closed. See here.

How do these rules affect the right to organize and protest?

The Stay-at-Home Order states that only the following gatherings are allowed: a wedding, a funeral or a religious service, or a rite or ceremony that is permitted by law.

However, the Order does not override constitutional rights to free association and expression, which protect the right to organize and protest. Any restrictions on these rights during COVID-19 can be challenged under the Charter and may be found to be unlawful. It is also worth noting that during the previous stay-at-home order, several organizations in the GTA held physically distanced outdoor meetings and protests and were not charged with violating the order.

Police Enforcement of the Stay-At-Home Order

The expanded police power is set out in O. Reg. 298/21.

If a police or provincial offences officer:

  1. has a reason to suspect
  2. that an individual may be participating in a prohibited outdoor gathering of more than 5 people

Then the officer can “require the individual to provide information for the purpose of determining whether they are in compliance” with the prohibition on outdoor gatherings of more than 5 people, if the officer believes it is in the public interest to do so.

It is unclear what information officers can ask for using this new power. The information must, however, be tied to the purpose of determining whether someone is attending a prohibited outdoor gathering of more than 5 people.

In our view, Officers cannot ask for specific identifying information under this power, such as your date of birth or name or address. They can only demand this information if they have “reasonable and probable grounds” to believe you violated a COVID order under the law (see O. Reg. 8/21 and O. Reg. 114/20).

In addition, there is nothing in the law that allows Officers to demand proof of any identifying information you share or any reason you give for being outside.

If You Are Attending a Gathering

An Officer may order people to disperse. This power has not been used to disperse any protests that MDC has supported to date.

The law says an individual who is stopped under this law:

  • “shall promptly comply” with police requests for the above information.
  • must only give their name, date of birth and address if the officer reasonably believes they are violating a COVID rule.
  • refusing to identify yourself carries a fine of $750 for failure to comply with an order or $1000 for obstructing a person in exercising their powers. See here.
  • If an individual does not comply with an emergency order, they can be found guilty of an offence and liable to up to a $100,000 fine and 1 year in jail. See S. 7.0.11 of the Act here.

Rights that Continue to Apply

All laws must comply with the Charter of Rights and Freedoms.

  • In general, If you are stopped by the police or arrested, you do not have to answer any other questions outside of those outlined above. You do not have to give a statement to police without first consulting a lawyer.
  • The right to protest and organize continues to apply and must be balanced with these rules.

Organizations to Contact

For more information on your legal rights, contact the following for information or referrals:

  • If you are Black and are ticketed, contact BLAC at 1 877 736 9406

If You Are Without Full Migrant Status

IF YOU ARE WITHOUT FULL MIGRANT STATUS IN CANADA (I.E. YOU HAVE NO STATUS, OR YOU ARE A WORKER OR STUDENT OR VISITOR)

A charge or conviction under the new laws will not impact your immigration status as they are not criminal charges. However, the demand for an address or other identification may lead to the provincial offenses officer or police officer contacting Canada Border Services Agency (CBSA) and could lead to deportation proceedings being put into place.

Typically this will not lead to immigration detention but could. It is always best to have an emergency plan in place, i.e.

  • Have a letter from your employer speaking to your address and to the need for you to be at work.
  • Have an immigration lawyer or consultant you can call (they have to let you do this if they start immigration proceedings).
  • Have someone you trust who can come to the police station and confirm your address and your need to be outside.

Be aware that these new police powers, while not being enforced in many jurisdictions, will be largely used against Migrants, Black people and Indigenous people.

If You Are a Sex Worker

Right now most body rub, massage parlors and other sex worker businesses are closed due to public health concerns. However, like many other workers, sex workers still need to work. Try to constrain your travel. Be aware that disclosure that you work in sex work may lead to further investigation and possible charges.

Also be aware of the immigration consequences as per the above section. As per the above section, have a safety plan.

Abuse against a worker is always wrong, but be aware that contacting the police may lead to consequences. Consider instead contacting a sex worker advocacy organization such as Butterfly or Maggies.

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