Offences for Violating Orders Under COVID 19

Under the Emergency Management and Civil Protection Act, the Provincial Government has the power to make temporary Orders.  These Orders are not criminal law, but they are enforced by police officers, By-Law Officers and Special Constables.  Violations of the Orders can result in fines or even jail. Some people may have already received a ticket for violating an Order (e.g. gathering in a park). The current Orders are in force until April 23, 2020.  They may be extended further beyond that date.

As the COVID-19 crisis wears on, more people may be charged with violating Orders.  In here you will find the answers to the following:

  1. What authority is there for making Orders during this emergency?
  2. Some of the most relevant Orders currently in force.
  3. What Offences are there are for violating Orders?
  4. Police enforcement powers?
  5. Prosecution for violating Orders?

If you have been given a ticket for violating an Order, feel free to contact me for a consultation on what possible defences and options you have for fighting the charges.

Authority under the Emergency Management and Civil Protection Act (EMACPA)

This is the Provincial law that allows the Government to make orders closing businesses, limiting social gatherings and other orders in order to

“…reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.”
S. 7.0.1(3)(1) EMACPA   

The EMACPA specifically states that all orders made under the EMACPA are subject to the Canadian Charter of Rights and Freedoms.

How does the Provincial Government make Orders?

  1. To Make an Order you Need to Declare A State of Emergency

Premier Ford made the initial Declaration on March 17, 2020 and it was limited to two 14-day periods.  The Legislature has now authorized a further Declaration which has extended the State of Emergency to May 12, 2020.  Unless the Legislature extends Declaration, the State of Emergency will end on May 12th. 

Any State of Emergency beyond May 12th can be for a maximum period of 28 days and must be authorized by the Legislature. If a vote to extend a State of Emergency is tabled, the State of Emergency continues until the vote takes place.  The Legislature may also vote to terminate a State of Emergency.

2. Orders

During a State of Emergency, the Government has the power to make Orders. As mentioned before, these Orders are not criminal offences, but breach of an Order may result in fines or imprisonment. The Orders can be in force for a maximum of 14 days.  Orders may be extended for successive 14-day periods.  The Orders do not have to be approved by the Legislature. The Government may extend an Order for a maximum of 14 days after the end of the State of Emergency.

Current Orders under the EMACPA have been extended through April 23rd.

Some of the ORDERS most likely to affect you are (for the complete list of Orders please see https://www.ontario.ca/laws/statute/90e09):

Closure of Outdoor Recreational Amenities Reg. 104/20

This Order affects all outdoor amenities throughout Ontario including:

  • Outdoor playgrounds
  • Sports fields
  • Off leash dog parks
  • Outdoor fitness equipment
  • Community Gardens
  • Any picnic benches and shelters in park and recreational areas
  • Outdoor recreational amenities that are intended for use by more than one family are closed, regardless of whether they are publicly or privately owned and regardless of whether they are attached to a park system.

Price Gouging Reg. 98/20

This Order prohibits sales of the following items at prices that grossly exceed what is being charged for similar goods:

  • Masks and gloves used as personal protective equipment in relation to infections;
  • Non-prescription medications for the treatment of the symptoms of the coronavirus (COVID-19), as those symptoms are described by Public Health Ontario;
  • Disinfecting agents intended for cleaning and disinfecting objects or humans;
  • Personal hygiene products, including soap products and paper products.

Limits on Gatherings Reg. 52/20

This Order prohibits public gatherings, as well as social gatherings, of more than five people, even in private dwellings.  There is an exception made for gatherings of members that live in the same single household. Funeral services are another exception, for which a maximum of ten people may gather.

Closure of Businesses Reg. 51/20 and 82/20

Reg 51/20 closes the following businesses:

  • All facilities providing indoor recreational programs;
  • All public libraries;
  • All private schools as defined in the Education Act;
  • All child-care centres within the meaning of the Child Care and Early Years Act, 2014, with certain exceptions;
  • All bars and restaurants, except to the extent that such facilities provide takeout food and delivery;
  • All theatres, including those offering live performances of music, dance, and other art forms, as well as cinemas that show movies, and
  • Concert venues.

Reg 82/20 orders all non-essential businesses closed.  

(Essential businesses that can remain open are set out Schedule 2 of the Regulation. Persons in charge of those businesses may have additional requirements to restrict public access as much as possible)

The following activities can take place on the business premises of a closed business:

  • performing work at the place of business in order to comply with any applicable law;
  • allowing for inspections, maintenance and repairs to be carried out at the place of business;
  • allowing for security services to be provided at the place of business; and
  • attending at the place of business temporarily,to deal with other critical matters relating to the closure of the place of business, if the critical matters cannot be attended to remotely; orto access materials, goods or supplies that may be necessary for the business to be operated remotely.
  • Nothing in this Order precludes any business from operating remotely, without attending at the place of business, for the purpose of,
    • providing goods by mail or other forms of delivery or making goods available for pick-up; and
    • providing services online, by telephone or other remote means.
  • The exceptions do not apply to businesses closed by ORDER Reg 51/20.

What happens if an Order is violated?

Court Injunction

If someone is violating an Order, the Government can seek an injunction before a Superior Court Judge and that Judge can order compliance.  This is unlikely to the take place given the current situation.

Offences

Police officers, By Law Officers and Special Constables can issue Offence Notices commonly known as “tickets” for violating Orders.  The Offences are outlined in section 7.0.11 of the EMACPA (See Appendix A)

The types of Offences

  1. It is an offence to violate an Order;
  2. It would be an offence to interfere or obstruct anyone in the performance of their duties conferred by Order (e.g. interfering with a by-law officer trying to enforce an Order).
  3. Each day or part of a day during which the offence takes place can be a separate charge.

Penalties for Offences

  1. In cases of individuals, there is a maximum fine of $100,000 and/or a term of imprisonment for a maximum of 1 year.
  2. In the case of a director of a corporation, there is a maximum fine of $500,000 and/or a term of imprisonment for a maximum of 1 year.
  3. In the case of a corporation, there is a maximum fine of $10,000,000.

If I am stopped by a Police Officer, By Law Enforcement Officer or Special Constable, do I have to identify myself?

Powers under the Highway Traffic Act (HTA)

Police Officers have always had broad powers under the HTA to stop vehicles and demand:

  • Drivers produce their drivers license, registration and insurance.
  • Require the driver to pull the vehicle over to allow for the vehicle fitness to be determined.
  • Ensure driver sobriety.

ORDER 114/20 made under the EMACPA gives Police Officers, By Law Enforcement Officers or Special Constables additional powers to require people to identify themselves:

Requirement to identify

(1) A police officer or any other provincial offences officer within the meaning of subsection 1 (1) of the Provincial Offences Act who has reasonable and probable grounds to believe that an individual has committed an offence under section 7.0.11 of the Emergency Management and Civil Protection Act may require the individual to provide the officer with the individual’s correct name, date of birth and address.

(2) Every individual who is required under subsection (1) to provide a provincial offences officer with their correct name, date of birth and address shall promptly comply.

When the HTA power to stop is combined with ORDER 114/20 this authorizes the police to require the passenger(s) in the vehicle to identify themselves if they feel people are violating an Order or Orders.

The punishment for failing to correctly identify yourself is a $750 fine and a $1,000 fine for obstructing anyone involved in issuing a ticket.

Prosecution for Offences

Prosecution for Offences under the EMACPA is governed by the Provincial Offences Act (the POA).  Prosecutions take place in Ontario Court of Justice Provincial Offences Court (POA COURT).  This is the same court that hears Highway Traffic Act matters, failure to remit Provincial Taxes, violations of Provincial Environmental Legislation, etc. 

There are two main procedures for prosecuting offences under the POA:

Part I

Part I offences are initiated by issuing a certificate of offence, commonly known as a “ticket.”  In order to fight this offence, you must follow the rules on the ticket for disputing the offence.  Under Part I, the maximum fine is $1,000 and there is no possibility of jail.  

Part III

The other way to commence a prosecution is under Part III of the POA. (Part II only applies to parking tickets).  Once again, you will likely receive a notice which looks like a “ticket”, except that this notice will give you a date to appear in Court.  Currently, the POA COURTS are closed.  If you are given a ticket it will likely have a date after June 1, 2020. 

Conclusion

It is safe to assume that the current Orders will be extended beyond April 23, 2020.  Furthermore, additional Orders may be passed by the Provincial Government. 

Appendix A

Offences under the EMACPA

7.0.11  (1)  Every person who fails to comply with an order under subsection 7.0.2 (4) or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by an order under that subsection is guilty of an offence and is liable on conviction,

(a)     in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b)     in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and

(c)     in the case of a corporation, to a fine of not more than $10,000,000.  2006, c. 13, s. 1 (4).

Separate offence

(2)  A person is guilty of a separate offence on each day that an offence under subsection (1) occurs or continues.  2006, c. 13, s. 1 (4).

Increased penalty

(3)  Despite the maximum fines set out in subsection (1), the court that convicts a person of an offence may increase a fine imposed on the person by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence.  2006, c. 13, s. 1 (4).

Exception

(4)  No person shall be charged with an offence under subsection (1) for failing to comply with or interference or obstruction in respect of an order that is retroactive to a date that is specified in the order, if the failure to comply, interference or obstruction is in respect of conduct that occurred before the order was made but is after the retroactive date specified in the order.  2006, c. 13, s. 1 (4).

[1] Essential businesses that can remain open are set out Schedule 2 of the Regulation. Persons in charge of those businesses may have additional requirements to restrict public access as much as possible.

[2] “provincial offences officer” means,

(a) a police officer,

(b) a constable appointed pursuant to any Act,

(c) a municipal law enforcement officer referred to in subsection 101 (4) of the Municipal Act, 2001 or in subsection 79 (1) of the City of Toronto Act, 2006, while in the discharge of his or her duties,

(d) a by-law enforcement officer of any municipality or of any local board of any municipality, while in the discharge of his or her duties,

(e) an officer, employee or agent of any municipality or of any local board of any municipality whose responsibilities include the enforcement of a by-law, an Act or a regulation under an Act, while in the discharge of his or her duties