Following major pushback from local police forces, Ontario Premier Doug Ford has walked back his plan to give cops in the province sweeping new powers to determine if people outside their homes are compliant with the stay-at-home order.
On Friday, as Ontario’s third wave of COVID-19 overwhelms intensive care units, the province said cops would be able to randomly stop anyone outside of their home, including in cars, and ask for their names and addresses.
The next day, Solicitor General Sylvia Jones said the province amended the rules, allowing cops to stop only those they believe are violating the restrictions against gathering.
"If a police officer or other provincial offences officer has reason to suspect that you are participating in an organized public event or social gathering, they may require you to provide information to ensure you are complying with restrictions," Jones said in a statement.
On Monday, British Columbia announced new travel restrictions within the province, limiting people to their own public health authorities. Cops will set up roadside checks to enforce the measures and fine people travelling for non-essential reasons. Premier John Horgan said the province will "be consulting with the (Black, Indigenous, people of colour) community to make sure that we bring forward these restrictions in a way that does not give anyone fear that there will be additional repercussions.”
But experts told VICE World News the rules still may result in people’s rights being violated, particularly BIPOC people, low-income people, and those living in over-policed communities.
Toronto-based lawyer Caryma Sa’d said although police in Ontario are now required to have reasonable suspicion before questioning someone, that’s not a difficult hurdle for them to overcome.
“Being outside in theory could trigger a reasonable suspicion,” she said. “It’s very easy for an officer to create a narrative and say, ‘Well this wasn’t random.’”
Sa’d said she’s worried speaking with police could result in a wider investigation against someone if they say something cops deem suspicious.
“It’s a much broader compulsion to answer (police’s) questions and that raises concerns from a self-incriminating point of view,” she said.
During the first wave of the pandemic, there were also reports of police and bylaw officers mixing up rules, penalizing people for activities like walking through a park.
Canadians generally have the right to refuse to speak to police, but in this case, refusing would mean non-compliance with the provincial order, potentially leading to a $750 fine.
Keep answers brief
Her advice for people who get stopped is to answer an officer’s questions in the briefest way possible that still satisfies the provincial order. For example, a person could simply say they’re on their way to work.
“You don’t necessarily have to provide additional details,” she said, adding a person can then ask if they’re being detained or if they’re free to go.
If someone is being detained, they could then ask to speak to a lawyer, Sa’d said.
Know your rights
Lawyer Abby Deshman, who is director of the criminal justice program at the Canadian Civil Liberties Association, said low-income and racialized people are much more likely to face interactions with police officers than white and affluent people. A CCLA report from June found that Black, Indigenous, and people of colour bore the brunt of COVID-related enforcement. Though due to gaps in policing data meant the report didn’t contain numbers of BIPOC people stopped, it said the encounters that escalated the most involved Black people.
Deshman said during the first wave of the pandemic, the CCLA heard from racialized people who felt they were unfairly targeted over COVID rules, including interracial and gay couples who said they weren’t perceived as being a single family.
Deshman said it’s important to first know your rights, which is difficult when the rules are constantly changing. In this case, it’s important to remember that answering an officer’s questions is required, which differs from the norm.
“You can clearly say that you don’t want to but ultimately if a police officer insists that they have the right to search you or that they can demand identification, usually the best time to complain about a rights violation is after it has happened,” she said. “When people start to physically resist, sometimes that can lead to charges or a use-of-force incident.”
Document what you can
Deshman said people should take notes and collect all the information they have about a negative interaction, including getting the officers’ names and badge numbers. In a previous interview, Deshman told VICE World News some complaints don’t go anywhere if the complainant didn’t get the names or badge numbers. During Black Lives Matter protests following the killing of George Floyd, cops in New York City and Seattle were seen with black bands hiding their badge numbers.
The CCLA has a form for people to report their experiences with COVID-19-related enforcement. Black Ontarians can contact the Black Legal Action Centre, a legal aid provider, if they have issues with police encounters and need help.
Sa’d said people are entitled to film police encounters as long as they aren’t getting too close and potentially obstructing an investigation, which could result in a charge. But she said the priority should be to get out of the police encounter safely, so whether or not to start filming is a judgement call.
“Don’t record if you think it’s going to put you in an unsafe situation,” she saId.
Bystanders can also record encounters from a distance.
Request a trial
Deshman said people ticketed can dispute the fines and request a trial within the given time limit. She said it’s typical for people contesting provincial offences to represent themselves in court, but “it’s not going to be something everybody has the energy or the time for.” People can also request a meeting with the prosecutor to try to resolve the issue by having the charge withdrawn. In Ontario, a guilty verdict could result in a fine, probation, jail, or other orders. In B.C. you can dispute the fine within 30 days or dispute the fine amount if you can’t afford to pay it.
Considering carrying proof of employment
Although it’s not legally required, Sa’d said having some documentation showing where a person works, or a receipt from an errand, could be helpful when encountering police. Some employers are writing letters stating their employees are essential workers.
People who aren’t fluent in English could also consider memorizing certain phrases, so they can respond to questions about where they’re going and where they live.
Sa’d said even if the police encounter amounts to nothing, it can be traumatizing, particularly to people who’ve already been over-policed.
“We’re not going to police our way out of a pandemic.”
Ford has repeatedly rejected doctors calls to give essential paid sick leave, which they believe will curb the spread.
“What I understand from the available data and science suggests there are other methods that would be more effective,” said Sa’d.
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