$750 for doing chin ups in a park. Sitting on benches banned. Do emergency measures go too far?

Thestar.com
April 20, 2020
Francine Kopun

A Toronto lawyer gets a $750 ticket for doing chin-ups on a bar in Centennial Park. An Oakville father gets one for bringing his three sons rollerblading in an empty parking lot. Lingering on park benches has been outlawed and could also result in a fine.

Civil liberties are being compromised by emergency measures at all levels of government in a way that would have seemed outrageous just a few weeks ago, but which most people now seem to agree is necessary to fight the spread of COVID-19.

It’s how those measures are being enforced that matters, and could give rise to legal challenges, say rights watchdogs.

The Canadian Civil Liberties Association has received numerous complaints so far over how the new rules are being enforced in jurisdictions across the country, says CCLA executive director Michael Bryant, a former Ontario attorney general.

A common complaint is that bylaw officers are ticketing first and asking questions later.

Dylan Finlay was complying with the city’s social distancing bylaw when he was ticketed on Tuesday.

He was jogging alone in Centennial Park when he decided to throw in a few chin-ups on a chin-up bar. Finlay admits he should have known that outdoor recreational amenities, including outdoor exercise equipment like the chin-up bar, are closed under a provincial order. A nearby playground in the park had signs warning people not to use the equipment. The chin-up bar did not.

A bylaw officer ticketed him without warning, he says.

The set fine for failing to comply with an order under the provincial Emergency Management and Civil Protection Act (EMPCA) is $750. With the 20 per cent provincial victim fine surcharge, which is deposited into a special fund to help victims of crime, the ticket totalled $880.

Finlay isn’t looking for sympathy. He’s a criminal lawyer. He knows that ignorance of the law is not a defence. And he’s in a position to fight or pay the fine.

But he points out that not everyone who will be ticketed for violating the emergency measures will be so fortunate and for those who have been rendered unemployed by business closures, the fine is hefty, and may not be proportionate, especially considering that the minimum penalty for driving while impaired is $1,000.

Even higher is the set fine for failing to keep two metres away from strangers in Toronto parks and plazas -- a municipal bylaw passed by Mayor John Tory without council under an emergency declaration. The set fine for that offence is $1,000.

Finlay worries that a zero tolerance approach on the part of bylaw enforcement officers will erode the public goodwill that has made social isolation a success so far, helping to flatten the rising curve of infections so that hospitals are not overwhelmed.

As a general rule, people should be concerned any time a government enacts laws that restrict things like freedom of movement or association, says Peter Loewen, a professor in the department of political science and the Munk School of Global Affairs and Public Policy at the University of Toronto.

He points to Germany, where families have been encouraged to go to parks.

“They’re encouraging people to make use of public space, because they are realizing we are in this for the long haul.”

He thinks the fines are high.

“We have to ask about how calibrated this is.”

Emergency measures have a bit of a checkered past, points out Jack Rozdilsky, an associate professor at York University’s School of Administrative Studies and an expert in disaster and emergency management.

Canada’s federal War Measures Act, for example, was infamously used to intern Japanese Canadians during the Second World War.

The late Pierre Elliott Trudeau invoked the War Measures Act in 1970 to tackle the FLQ crisis in Quebec and the actions taken then remain controversial to this day, says Rozdilsky.

The War Measures Act was retired after the Charter of Human Rights and Freedoms was passed. It was replaced by the Emergencies Act, which sets a high bar in terms of the consideration that must be given to rights of the individual, says Rozdilsky.

That’s probably one reason Prime Minister Justin Trudeau has shown such reluctance to invoke the measure, which would grant the federal government sweeping powers, including the power to confine people in their homes on a broad scale.

There may also be personal reasons for his reluctance -- he probably doesn’t want to follow in his father’s footsteps by invoking the controversial legislation unless he truly has no other choice, says Rozdilsky.

“It’s not a legacy, really, that any leader or politician would want to have.”

Some of the emergency measures that have been invoked also infringe upon our democratic institutions -- critics question, for example, whether it’s really necessary for Tory to be acting without having to consult council.

“The crowd-sourcing of opinion that happens through a city council or legislature, as politicians bring their different perspectives and expertise to an issue -- it usually results in better decisions overall,” says Duff Conacher, co-founder of Democracy Watch.

“Yes, that all has to be sped up in a crisis situation, but that is the solution, just speed it up, don’t throw the process out.”

The CCLA’s Bryant wants to know how the information gathered in the enforcement of the new provincial measures and byaws will be gathered and where it will be stored.

He wants to see statistics on who is being stopped, especially since under provincial emergency measures, police officers are once again allowed to stop people and ask for their identification -- seen by some as a return to carding.

Bylaw officers have also been granted the power to enforce provincial offences.

Toronto Police Service spokesperson Meaghan Gray, however, says that the information can only be requested for the purpose of issuing a ticket or a summons --officers cannot ask for the information and then form grounds for a ticket, summons or arrest.

Bryant says that before COVID-19 “I think our heads would have exploded,” at the kind of curtailment of personal freedoms taking place today.

“But based on what we’re hearing, we can infer the necessity of it.”

Still, the CCLA is reaching out to people, asking them to get in touch if they feel they have been wrongly treated or fined or issued a summons.

“My experience in my decades at Queen’s Park is that in moments of high anxiety the hubris of power takes over in a way that is insatiable,” says Bryant.

“The desire to do something and be seen to be doing something is so powerful that people stray from their Constitutional anchor and that is when they start doing things that are not prescribed by law.”

Tory said Friday he stands by the legislation and the hefty fines and he believes residents of Toronto do too.

“It sends a message to people that this is really important.”