This post originally appeared in The Lawyer's Daily.
On March 31, the Ontario government issued an order via theEmergency Management and Civil Protection Act (EMCPA). The Act was developed by Emergency Management Ontario’s predecessor, Emergency Measures Ontario after a comparison study was completed which examined emergency programs in Ontario, similar jurisdictions in Canada and the United States.
The report came out prior to Sept. 11, 2001. The report was amended to account for the events that day. The Act was developed as a result and contains the premier’s powers to make orders under this Act including the one on March 31.
The criteria to make orders under the Act are twofold:
The harm or damage will be alleviated by an order; and
Making an order is a reasonable alternative to other measures that might be taken to address the emergency.
The order published on March 31 permits a police officer or any other provincial offences officer (defined in theProvincial Offences Act) who has reasonable and probable grounds to believe that an individual has committed an offence under s. 7.0.11 of the Act may require that same individual to provide the officer their correct name, date of birth and address. Every individual must comply promptly with such requests.
As general information only, it would never be OK to incorrectly identify yourself to an officer; however, it is not clear what promptly means in this circumstance and how that will affect interactions with officers.
Failure to comply with any order under the Act could result in a fine of not more than $100,000 and imprisonment for a term of not more than one year. Failing to correctly identify oneself could result in a fine of $750 or $1,000 for obstructing any person in exercising a power if a provincial offences officer issues a ticket.
The provisions relied on in the Act in this order, from my perspective, are not correctly used. Mostly, s. 7.0.2 (4)(13) states that “the Lieutenant Governor in Council may make orders in respect of the following: “Subject to subsection (7), requiring that any person collect, use or disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.”
The other provision relied on states: “taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.”
This kind of order represents an unreasonable use of these extraordinary powers. Particularly, I do not believe that the collection of identification is an emergency requiring collection under the Act.
Further, I believe this provision relied on implies collection of information to keep others safe, and I do not believe that collecting correct identification and collecting it promptly from individuals prevents, responds to or alleviates the effects of an emergency. The Act, and elsewhere, grants police officers and other provincial offences officers to use their powers.
In these circumstances, and as general information only, respect the orders issued to date and continue to practise physical distancing (i.e. social distancing) when and if you must leave your place of residence. It is not clear how this order will be enforced for those more marginalized and vulnerable who do not have a stable place of residence or who are impacted by other intersecting systems of oppression (i.e. race, class, disability, etc.). These are the ones I am most concerned about because, let’s be real here, it is not individuals who have inaccessibility issues that are likely the ones gathering in parks or violating other similar EMCPA orders.
The line between the province and policing powers has consistently been questioned and this is just another example. Let’s also not forget that the Ford government repealed provisions that would have hopefully permitted police independence from ministerial direction.
It now appears Ford enjoys his extraordinary powers to the extent that he is willing to create uncertainty in the lives of those individuals most impacted by over-policing and under-protection.
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