Legal Aid wants to help Nova Scotians facing steep COVID-19 fines

Nova Scotia Legal Aid wants to help the hundreds of people in the province who've been ticketed for walking in a park or failing to physically distance during COVID-19.

It's encouraging people to call for free legal advice if they've received a summary offence ticket under the province's health protection and emergency management acts.

Not every case has a shot in court, but lawyers will be able to explain what people's options are, said Halifax lawyer Josh Nodelman. He's already heard from several people facing fines and said "there are genuine issues at hand."

"There needs to be some sense of the boundaries of this extraordinary power that's been granted to enforcement agencies," Nodelman said. 

People caught walking in a park or other prohibited areas were fined $697 before May 1 when many parks and trails in the province reopened. Individuals can still get a $1,000 fine for failing to physically distance or self-isolate.

Legal experts have called the province's public health orders vague and confusing, and worry they open the door for police to disproportionately target marginalized and racialized communities.

Nodelman said the ambiguity of the orders could be used as a legal defence, although he cautioned that each case will need to be tested on its own merit. 

"There could be a defence of due diligence if you were actively trying to follow the law and for some reason became confused or misled as to the state of the law at a particular time," he said. 

There could also be grounds to argue that public health orders violate the Charter of Rights and Freedoms, he said. 

Lawyers would need to prove the orders were "worded in a way that was over-broad and captured too much in the way of behaviour much of which was not in any way dangerous to anyone."

Nova Scotia is one of the few provinces in Canada that's issued hefty fines to rule-breakers during the pandemic.

Halifax Regional Police have issued 184 tickets since the state of emergency was declared on March 22, most to people who've been in prohibited areas. Cape Breton Regional Police have issued 98 tickets and Nova Scotia RCMP 220.

Newcomer family ticketed in park

Nodelman said his office is fielding about three to five calls a week and he's already noticed a troubling trend. 

"Frankly, I am deeply concerned about the first few people to whom I've spoken," he said. "There was always a concern among several of the lawyers at Legal Aid that this enforcement was going to come down disproportionately heavily on people in marginalized situations."

Some of the people seeking his help are newcomers to Nova Scotia who have language barriers, he said. One newcomer family with three kids was ticketed for being in a park when no one else was around, he said. 

Frankly, I am deeply concerned about the first few people to whom I've spoken.​​​​​- Josh Nodelman, legal aid lawyer

"I can't say whether that represents all of the tickets being given out or just to people who sort of have been finding us at Legal Aid so far, but I will say there's an awareness of a number of lawyers across Legal Aid that this is an issue we're keeping an eye on."

The Immigrant Services Association of Nova Scotia said it's not heard similar concerns from the people it serves at this time and that it's working hard to educate newcomers about COVID-19 restrictions. 

Justice Minister Mark Furey said "there's been no evidence presented" that enforcement is targeting certain groups of people.

"If they feel they've been treated with a lack of respect or a lack of professionalism, there are options for them to pursue," Furey said, adding people can file a complaint with the Nova Scotia Human Rights Commission and the Office of the Police Complaints Commissioner.

Furey said police were initially focusing on educating people about the public health rules, but the second weekend of the state of emergency changed that approach. He said police received several reports of a high number of people at Crystal Crescent Beach outside Halifax.

"The police were doing what Nova Scotians expected them to do, and their efforts were dismissed by those who were breaching the state of emergency ... and putting you and I at risk," he said. "We felt it was necessary to now elevate this."

What to do if you have a ticket

Nodelman said it's important people don't ignore the tickets they've received. He advises them to call their local legal aid office then their local courthouse.

If people want to challenge a ticket in court, they have to first fill out paperwork and request a docket appearance.

Usually, if someone ignores a summary offence ticket they're automatically convicted after 60 days. Automatic convictions were suspended in mid-March due to COVID-19, but could resume as early as next week if another extension isn't granted.

Nodelman said Legal Aid will assess the cases that come in and may take on clients who fit the criteria for accessing support from Legal Aid, which offers services based partly on someone's finances.

Even if there aren't grounds to challenge a ticket, Nodelman said people can still ask a judge for leniency on paying the fine.

Furey also pointed to the fine option program, which lets people satisfy a fine through volunteer work. 

Given the backlog in courts, Nodelman said the cases that do proceed likely won't end up on dockets until the end of this year or next year.