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Ontario curbs COVID-19 police powers; OBA raises concern about law office inspections

Monday, April 19, 2021 @ 3:14 PM | By John Schofield

Last Updated: Tuesday, April 20, 2021 @ 10:14 AM


Ontario has taken steps to limit increased pandemic policing powers amid a chorus of public concern, a potential lawsuit and statements by several police forces saying they will not randomly stop individuals to enforce compliance with COVID-19 public health restrictions.

Pushback against increased enforcement and workplace inspections also came from the Ontario Bar Association (OBA) following an April 16 government news release announcing a two-week extension of its stay-at-home order and beefed up policing measures.

In response to rapidly increasing COVID-19 case numbers and overwhelmed hospital ICUs, the government said in the same release that, effective April 17, it was prohibiting all outdoor social gatherings and organized public events (except with members of the same household), closing non-essential construction sites, closing outdoor recreational amenities such as golf courses, basketball courts and playgrounds, and reducing in-person shopping limits at essential retail stores to 25 per cent of capacity. The government subsequently retreated on children’s playgrounds and will not be closing them.

Under an amendment to emergency order O.Reg 8/21, the government also said it was giving police officers and other provincial offences officers the authority to stop individuals and require them to provide their home address and purpose for not being at their residence. Police officers, special constables and First Nation constables were also granted the power during the stay-at-home order to stop vehicles to inquire about an individual’s reasons for leaving their home.

But through an order-in-council dated April 17, the government revised the regulation again to stipulate that police or provincial offences officers may only stop and require individuals to provide information if they have reason to suspect the individual is participating in a gathering prohibited by Ontario regulation 82/20 (Rules for Areas in Stage 1) under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020.

 Michael Bryant, executive director and general counsel with the Canadian Civil Liberties Association

Michael Bryant, executive director and general counsel with the CCLA

The move to more carefully circumscribe the regulation, while still allowing for police stops, was welcomed by Michael Bryant, executive director and general counsel with the Canadian Civil Liberties Association (CCLA), who had announced a possible legal challenge to the expanded police powers hours after they were announced. He announced in an April 17 statement that the CCLA would pause its legal challenge in response.

“This new order (released late this afternoon) restores an investigative detention standard for police stops,” he said. “The new order rationalizes and narrows the unconstitutional Friday standard. The new standard is also tied to a public health objective and avoids arbitrary detention.

“It means people should return to being as free as they were before this happened,” he added. “That may be a freedom wrongly curbed by racial profiling, police bias and discrimination, against which we will continue to fight.”

Several police services, including those in Toronto, London and Waterloo Region, announced following the government’s announcement regarding increased enforcement powers that they would not make random stops.

“We will not be conducting random vehicle or individual stops,” the Waterloo Regional Police said in an April 16 news release. “As before, our initiatives will be both complaint driven or proactive, with the goal of gaining compliance. Those that refuse to comply will receive the appropriate penalty.”

But Dr. Ritika Goel, a Toronto family physician and the faculty lead in social accountability at the University of Toronto’s Department of Family and Community Medicine, told Global News that the attempt to expand police powers further undermined badly eroded trust in police among marginalized and racialized communities. In a April 19 Tweet, she urged Ontario health workers to call on Premier Doug Ford and his government to implement a paid sick day program, speed up the vaccination of essential workers and marginalized people and prioritize public health over policing.

In an April 19 news release, the government said it is extending eligibility for the AstraZeneca COVID-19 vaccine at pharmacies and primary care settings to individuals aged 40 and over, down from age 55.

Minister of Labour, Training and Skills Development Monte McNaughton announced April 15 that an inspection blitz targeting workplaces and construction sites would also include law offices and accounting firms to make sure COVID-19 safety requirements are being followed.

In an e-mailed statement, however, the OBA said it will be reaching out to government “in an effort to ensure that there is an understanding of, and respect for, the important rights and protections that are engaged any time there is the potential for a law office search or investigation.”

It also sent out the Law Society of Ontario’s Guidelines for Law Office Searches and advised lawyers to call the law society at (416) 947-3963 for assistance when faced with a law office search.

On April 19, Ontario reported the sixth consecutive day of more than 4,000 new COVID-19 cases — registering 4,447 and 19 more virus-related deaths. The number of COVID-19 patients in a hospital ICU reached 755, with 516 of those requiring a ventilator to breathe.

Of the new cases, 1,229 were in Toronto, 926 in Peel Region, 577 in York Region and 233 in Ottawa and 227 in Hamilton.

Editor’s note: This article has been updated to indicate that playgrounds will remain open.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact John Schofield at john.schofield@lexisnexis.ca or call 905-415-5891.