'An extreme last resort': Police reluctant to ticket, arrest COVID-19 rule-breakers

The government warnings to Canadians to keep their distance and stay home — especially if they have recently been abroad — are being delivered in the sternest terms.

"The duration of this crisis will be determined by the choices we make right now. So, if you want this to last shorter, then do your part," Prime Minister Justin Trudeau told the public in his daily briefing in Ottawa on Tuesday.

"If people do not follow these guidelines, we will put in place much more stringent measures."

But so far, the threats of stiff fines and even criminal charges for COVID-19 scofflaws appear to be mostly tough talk, as authorities opt for persuasion over punishment.

A survey of select police forces across the country found little evidence that officers are busting up large gatherings or ticketing business owners who defy government calls to shutter non-essential services while the outbreak runs its course.

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Prime Minister Justin Trudeau addressed the nation Tuesday, touching on legislation to help Canadians during the COVID-19 pandemic, stressing the need for social distancing and touching on his conversation with premiers about the federal Emergency Measures Act.

On Sunday, Nova Scotia Premier Stephen McNeil ordered the closure of parks and gave police the power to enforce the province's Health Protection Act, which bans gatherings of more than five people, with fines of up to $1,000 for individuals and $7,500 for business owners.

As of Tuesday morning, however, Halifax Regional Police had yet to issue a ticket, choosing instead to try and educate violators.

"We have been receiving regular phone calls about people that are still gathering in groups," said Const. John MacLeod. "But our overall approach remains the same.

"We hope with these measures in place that we can encourage people to do the right thing and keep everyone safe."

A tool 'that we never wish to use'

The situation is similar in Quebec, where Premier François Legault has shut all non-essential businesses, extended the closure of schools and daycares until at least the beginning of May and banned public gatherings on pain of a $1,000 fine.

Last week, police in Quebec City arrested a woman infected with COVID-19 who was defying a quarantine order, but that appears to be the only such action taken in the province thus far.

Montreal's police service, which has received more than 200 calls since Saturday about large gatherings in public, has yet to issue a ticket. 

"We're being given that tool. However, it's the type of tool that we never wish to use, that we don't intend to use," said Insp. André Durocher. "The instructions that have been given to our police officers is this is a tool to be used as an extreme last resort."

Durocher said that the public is receptive to the low-key approach. "The response is positive when we speak to people. We're taking the time. Everybody is going through a hard time." 

In Saskatchewan, where Premier Scott Moe has declared a state of emergency and encouraged people to call police if they know of international travellers who are failing to self-isolate, the kid-gloves approach also appears to be the rule.

Police in Saskatoon and Regina have been shutting down house parties, but neither force has levied the threatened $2,000 fine, let alone arrested anyone who is breaking distancing and isolation guidelines.

"We've had reports coming in from social media and phone calls saying, 'You know, my neighbour, I saw him go out, he went to the grocery store.' He hasn't, in their opinion, been exercising proper self-isolation," said Les Parker, a spokesman for the Regina Police Service. "So what happens is we have members who are tracking down and getting ahold of those people."

"We're not as concerned with enforcement so much as the priority being getting that message across, because compliance is really our goal here," said Parker.

Rules 'hypothetical' right now

Police in Peel Region, outside of Toronto, said the idea of enforcing social-distancing or public gathering rules remains "hypothetical" at this point, despite Ontario's declared $750 fine. 

The police services in Winnipeg and Vancouver both indicated that they are leaving any COVID-related enforcement and fines — up to $50,000 for individuals and $500,000 for businesses in Manitoba and from $1,000 to $50,000 in Vancouver —  to public health inspectors.

There is also the question of whether any of these extraordinary anti-COVID measures would actually stand up in court.

Martha Jackman, a law professor at the University of Ottawa, said the fines and restrictions may well end up being challenged on constitutional grounds as undue infringements on the Charter of Rights' guarantees of freedom of mobility and due process. 

Jackman said that might be why police are reluctant to levy the fines, finding the threat more effective than the actual enforcement.

Still, she suspects that the courts would ultimately decide that governments are doing what they have to in the midst of a global pandemic. 

"Restrictions on liberty are permissible as long as they're deemed to be fundamentally just," Jackman explained. "And in this kind of public health crisis, the courts are going to grant governments, I think, a fair bit of latitude, and defer to these really complex choices that governments are making balancing individual and collective interests." 

'It's pretty confusing'

The Canadian Association of Chiefs of Police said it is seeking clarity about what forces across the country can and can't do to support public health authorities.

"At this time, there is very little enforcement ability on self-isolation. Such action involves provincial/territorial legislative authority and may require a court order," says a written statement by the group provided to the CBC. "At this time, police efforts are focused on education; the ability to enforce is viewed as a last resort."

The more immediate problem appears to be public confusion over what is and isn't permissible, as municipal, provincial and national governments scramble to respond to the evolving COVID-19 threat.

Shawn Cleary, a Halifax regional councillor, spent much of Sunday and Monday responding to constituents' queries about the province's order to shut down parks and what it means for those trying to walk a dog or just get a bit of fresh air. 

"When the province declared the state of emergency, they did issue an order closing down all provincial parks and municipal parks. But they're keeping the provincial trails open, and in fact the premier said people need to get some exercise," said Cleary. "The unfortunate part is in our parks bylaw, all of our trails, gardens, playgrounds, et cetera, are defined as a park."

"It's pretty confusing. I've had literally hundreds of social media interactions about the trails," said Cleary. "So the province really needs to close a few loopholes here and get some clarity around where we can go and where we can't."

With files from Laura Clementson and Justin Hayward