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We can’t police our way out of pandemic | Kyla Lee

Friday, April 24, 2020 @ 11:53 AM | By Kyla Lee

Kyla Lee %>
Kyla Lee
In British Columbia, measures have been put in place, as they have across the country, to flatten the curve in the COVID-19 pandemic.

Despite the fact that B.C. was the second province in Canada to report a positive test for COVID-19, the measures taken in British Columbia have been effective at controlling the spread of the disease. As of April 21, B.C. had a total of 1,724 positive cases of COVID-19.

Some have argued this is due to restrictions on testing. That is not, in fact, the case. As the South China Morning Post reported, B.C. is testing at a higher rate than South Korea. Although there were, until April 18, restrictions on who could be tested, all swabs for respiratory disease were being tested as a surveillance measure.

By contrast, Ontario — the first province to report a positive COVID-19 test — has a total of 12,249 cases as of April 21. New cases are still increasing at an alarming rate. Ontario has had significantly more deaths from COVID-19 than British Columbia.

The differences in new cases and deaths do not appear to be affected by restrictive measures put in place to control the spread of COVID-19.

In fact, the differences in the provinces appear to show that the more you do to restrict people, the more people will defy the orders and the danger will spread.

British Columbia has issued very few public health orders. The majority of them are expected: orders requiring certain types of businesses to close, orders related to where health care staff may work and the services they can perform, orders related to quarantine for travellers and orders related to large gatherings of people.

Beyond this, the B.C. government and Chief Health Officer, Dr. Bonnie Henry, have been appealing to people’s sense of decency and responsibility to others. Henry and Health Minister Adrian Dix have appeared in almost-daily briefings to implore people to follow social distancing guidelines, to stay away from grouping in beaches and parks and to stay home as much as possible.

Ontario appears to be taking a different approach.

In Ottawa, a 17-year-old child was issued a $700 fine for playing a solo game of basketball in a park. This would not be unlawful in British Columbia. While B.C. parks have been closed, municipal parks remain open. The Ottawa case is not an anomaly. Fines have been issued for a variety of regular, solo, outdoor activities in Ontario. In British Columbia, we are encouraged to participate in outdoor, solo, activities, provided we can maintain social distancing.

Does fining children, lawyers and people who dare to have the audacity to sit on a park bench solve the increasing number of cases?

The numbers in British Columbia and Ontario appear to demonstrate that the best way to encourage compliance with public health measures is not to demand, order or prohibit. Rather, it is to follow the approach taken by Henry and Dix; to appeal to the humanity and empathy that people have. Henry and Dix have become almost like surrogate parents — especially for those of us who are separated from our parents by social distancing — gently encouraging us to follow the rules and be respectful to one another.

Ontario’s heavy-handed approach of ticketing first and asking questions later appears to be sowing seeds of dissent among those who should be encouraged to practise social distancing.

After all, who feels the need to comply with these obligations, if even solo and harmless activities lead to fines and punishment?

The differences in approach taken between Ontario and British Columbia, and the different results stemming from those approaches give us some information for how we might approach legal issues going forward. Just as the data suggests policing our way out of the pandemic is not effective, so too is policing our way out of social issues unlikely to be effective in the future.

Ontario should take some cues from British Columbia’s approach, if it wants to stem the tide of infection and illness. And when this is all over, provincial and federal governments should take some cues from how this approach has worked in assessing whether it is really necessary to use the long arm of the law to encourage people to behave in a socially responsible manner.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

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