The Second Lockdown – What does that Mean for You and Your Rights?

Joseph A. Neuberger

Neuberger & Partners LLP, Criminal Defence Lawyers

The Provincial government has again declared a state of emergency under the Emergency Management and Civil Protection Act.  Under that power the government has made a “stay at home” order permitting Ontarians to leave their residence for only defined purposes (approximately 33 essential reasons) including exercise, walking pets, going to and from essential work, health care, shopping for necessities such as food, and household items like detergent, or if in need, underwear from Walmart.  Although this piece is about our rights and enforcement, one cannot help but ponder the unfair approach between big box stores and small business. Leaving this issue aside, what are the implications for Ontarians:

1. The Order is a legal directive that citizens are to follow, and people should only leave their homes for the defined exceptions.
2. Enforcement will be directed at places of business, including mask wearing, capacity and other health protocols. Police will respond and will enforce social gathering violations of the health directives, and people attending, and hosting can be ticketed.
3. The police CANNOT randomly stop a pedestrian, or vehicle for the sole purpose of checking compliance with the “stay at home” order. The police can stop vehicles under the powers granted by the Highway Traffic Act, and if a lawful stop, such as a sobriety check, can ask questions related to the “stay at home” order.  BUT the person stopped has no legal obligation to answer these questions.  If stopped for a legitimate traffic violation, the police must obtain identification and can ticket for a traffic violation, but again there is no obligation to answer questions related to the “stay at home” order.

Keep in mind that by-law officers also have the power to ticket people not in compliance with the provincial health directives.  Again, there is no legal obligation to answer questions.  But as we saw in the first lockdown, by-law officers do have powers to lay charges and potential fines for violations.

Travel Abroad:

Although travel has been a point of contention for transmission of the virus, testing and compliance with quarantine requirements, Canadian citizens have a constitutional right to return to Canada and not be denied entry.

Take Away:

This is going to be a difficult time for all of us, and hopefully the rates of infection decline, vaccinations ramp up, but also that our officials work hard on safely returning students back to school and to open up our economy.

Be safe and sane.