A teenager shooting hoops nets a fine. A man walking his dog gets dinged for where he’s standing. And a father rollerblading alone with his three sons has a run-in with a bylaw officer.
“Who are we hurting?” Oakville, Ont., father Todd Nelson remembers asking the bylaw officer who told him he couldn’t rollerblade with his sons in an empty parking lot on April 10.
“He said, ‘Oh, you’re not going to be like that, are you?’ And I said, ‘I’m just asking a question,’” Nelson told Global News. “And that was it. He said, ‘Give me your ID,’ and next thing you know, we got a ticket.”
There is the man who lied about having COVID-19, the disease caused by the virus, after being caught allegedly stealing a yacht, the woman who supposedly coughed on a grocery store clerk after she refused to let her buy extra tissues and the person who licked their hands before touching items in a pharmacy.
But those are the outliers.
For the most part, the offences are mundane and the alleged perpetrators report being confused by the rules or feeling targeted by police and bylaw officers. Sometimes, they just feel trapped without any legally safe means to escape tiny, overcrowded apartments so they can stretch their legs in the sun — with six feet of space between them and others.
The financial hit for Nelson? $880.
Or, as Michael Bryant, executive director of the Canadian Civil Liberties Association (CCLA), puts it: “A month of groceries for a family of four.”
These are fines that some people “literally cannot afford,” Bryant says.
“Sometimes, honest mistakes are made,” he says. “Normally, ignorance of the law is no defence, but in this case, we’re better off having police and bylaw officers educating the public, warning them and only getting (fines) as a last resort.”
An Ipsos poll, released on behalf of Global News, shows 85 per cent of Canadians support stricter physical-distancing laws and high fines. Yet, the rate at which Canadians are racking up fines and charges has experts worried that COVID-19 enforcement will divide communities, result in fewer people abiding by rules that reduce the rate of infection and further disenfranchise people already living on the margins of our society.
“It’s a public health crisis, it’s not a public order crisis,” Bryant says.
“Stop wielding power in order to crack down on people’s behaviour.”
The CCLA recently published an open letter with more than 150 other organizations calling for oversight of governments handling of the pandemic. At issue, Bryant says, is finding a way to balance public health needs with individuals’ rights and freedoms.
“Too often, in times of crisis, human rights are dismissed by governments as being irrelevant and unnecessary at best, or unhelpful barriers to an effective response at worst,” reads the open letter.
“It is, therefore, a vital time to ensure robust human rights oversight: to encourage strong human rights measures are adopted by governments, and to guard against intentional or unintended human rights violations.”
Staying home is a luxury not everyone can afford, says Alex Luscombe, a PhD student in criminology at the University of Toronto and co-creator of Policing the Pandemic, a mapping project launched in early April to track the ways in which COVID-19 orders are being enforced across the country.
First, not everyone has a home. Second, isolating in a spacious house with multiple bedrooms — multiple floors, even — and a big, fenced-in backyard is quite different than isolating in a one-bedroom apartment crowded with family members in a city where public parks have been declared off limits.
If you’re fortunate enough to belong to the first camp, you can get fresh air and sun without risking being a little too close to another person. In the second scenario, you can’t — and doing something as innocuous-seeming as walking through the park with your daughter or standing in the wrong spot with your dog could land you a hefty fine.
“Ticketing and charging people to try to deter people from breaking physical-distancing rules (isn’t) going to work,” says Luscombe.
“Once you start charging people and once you start giving out tickets, the reality is that it’s not going to impact everyone equally.”
Luscombe’s Policing the Pandemic co-creator, a fellow Alex, notes that there is at least one First Nation in Quebec where they’ve tracked people receiving repeat tickets for gatherings of more than five people.
Three or more tickets can mean a stint behind bars, says Alex McClelland, a postdoctoral fellow at the University of Ottawa’s criminology department.
“That these tickets could lead to jail is completely shocking,” says McClelland, especially at a time when people across North America are trying to release people from prison to minimize COVID-19 risks.
“The outcome of policing COVID-19 using a public health approach to put people in jail is counter to what everyone’s trying to do.”
In the same way that not everyone is on a level playing field when it comes to practising physical distancing, Michael Spratt says not all public health order violations are created equally.
Spratt, a criminal lawyer and partner at Abergel Goldstein & Partners in Ottawa, divvies the offences up into a few categories.
The first is the “honest mistake,” which he says would include the immigrant father who doesn’t speak English well enough to understand the signs banning use of the playground.
“That is someone who should be warned and educated,” Spratt says, but instead, he got fined.
Then there is the “inadvertent” category, he says, which includes two friends sitting six feet apart on a park bench, consoling each other from a distance after losing their jobs.
“They were charged despite the fact that they were trying to socially distance,” Spratt says.
The third category is the basketball-playing kids, he says, the kind who get caught playing basketball in groups bigger than five, get warned and disperse, only to come back and keep playing.
“This is more flagrant… they clearly understand that they’re not supposed to be doing what they’re doing, but their intent isn’t one of malice,” Spratt says.
So while technically it’s an offence, he’d encourage caution before hitting them with a fine, as police in Peterborough, Ont., did at the end of March and bylaw officers in Kitchener, Ont., did earlier this month.
“Charges aren’t going to deter others in this case, and it risks disenfranchising the public buy-in when they see this type of enforcement,” Spratt says.
Still, he notes, “all of those cases stand in contrast to cases where individuals are taking these actions with malice, with full recognition of the danger.” Think the person who licked their hands before touching items in a pharmacy.
It’s a tricky situation, says Akwasi Owusu-Bempah, an assistant professor in the University of Toronto’s sociology department.
“The difficult thing is how do we have people do what we want them to do without criminalizing them?”
Owusu-Bempah thinks we’d have more success if we focus on community-building and positivity.
“Emulating and reinforcing positive behaviours may have a greater effect than the potential deterrence of a punishment,” he says. Think signs telling people “we’re all in this together” or telling you to “stay safe and stay distant,” or public officials leading by example.
But a sense that we’re all in this together is undermined by so-called “snitch lines” that cities across Canada have set up for people to report failures to physically distance, says Spratt.
“The only way that we can maintain adherence and public buy-in to rules that are very oppressive and go against an open democracy’s instincts with respect to the scope and application of civil liberties is to make sure that we are united as a nation, as a province and, more importantly, as neighbourhood communities,” he says.
“The lines risk doing more damage than they do good and they risk destroying the goodwill and the community cohesion that we really need to not only help us comply with the rules but to help us survive as communities so that we can make it through a very tough and destructive time.”
Under normal circumstances, being ignorant of the law is not a defence.
But these are extraordinary circumstances, Bryant says, in which we are creating new rules that differ from province to province and even between cities within the same province.
“We’re better off having police and bylaw officers educating the public, warning them and only fining them as a last-resort measure,” he says. “Instead, it’s the other way around.”
So far, there have been hundreds of fines doled out in Quebec and Ontario, with fewer fines and charges reported in other provinces like Saskatchewan, Alberta, Newfoundland and Labrador and Nova Scotia.
As those numbers go up, accountability is incredibly important, Luscombe and McClelland agree. It is, after all, a driving force behind the launch of Policing the Pandemic.
“We hope that we can bring to light patterns of police intervention, to help understand who is being targeted, what justifications are being used by police and how marginalized people are being impacted,” the duo wrote in the white paper accompanying the launch of their database.
That’s important, Bryant says, because the CCLA has received reports of people being stopped and carded in Ontario, where the emergency order has made it an offence to not provide identification if asked for it.
“It’s always the case that if a police officer charges you, they can ask for your ID, but this is pre-arrest,” he says. “That’s carding.”
The degree to which city bylaw officers and police organizations are willing to divulge specifics about how they’re enforcing the pandemic varies greatly.
While Toronto police differentiate between tickets, summons, cautions and COVID-19-related parking tickets, other forces like the Quebec provincial police simply post a number on Twitter once a week.
That leaves it to the two Alexs to flip through media articles published after some Quebec ticket receivers — often frustrated and confused — decide to share their experience publicly.
It’s only in the cases where the ticket receiver divulges their race or gender or specifics of their living situation to reporters or organizations like the CCLA that we learn who’s receiving tickets.
That’s a problem, Bryant says.
“All the worst harms that come with abuse of power always disproportionately impact racialized minorities, disabled people and homeless people.”
As of Thursday, April 23, Lethbridge Police Service in Alberta had handed out exactly zero fines for violating public health orders. They hope to keep it that way, says Insp. Jason Walper.
“The whole point is to try to alleviate the pressures on our medical facilities and public health,” Walper says. “If we can do that through education and by gaining voluntary compliance when we do come across violations, we’re more than happy to do that.”
While in select cases a ticket might serve as a deterrent, he says, the force believes it’ll have the most success through conversations, be it reminders of the importance and value of physical distancing or clarifications of the rules.
Living through a pandemic is hard, Walper acknowledges. Alberta’s jobless rate is one of the highest in Canada, and people are increasingly facing a financial crunch.
“We live in our community,” he says, so the cops are familiar with the struggles. “We’re not here to make this worse for people.”
That’s Lethbridge Police Service: one force in one city in one province.
With so many variables at play, it’s worth taking a breath before you call the cops on your neighbour for doing something that might not seem 100 per cent compliant with physical distancing, says Owusu-Bempah.
“One of the things to consider is, what are the potential consequences for the individual you’re calling the police on,” he says. “The intention may simply be to have (the cops) disperse people, but of course, the consequences could be much more great.”
— With files from the Canadian Press
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