Legal experts say COVID-19 orders under N.S. state of emergency lack detail

Tim Cleveland has walked the same route to work through the Halifax Common for the last four years, but not anymore.

Last Thursday, the Halifax resident said he was handed a $697 ticket after Halifax Regional Police stopped him for walking alone through the park. He plans to fight the ticket in court, arguing it wasn't clear the pathway he used was off limits.

"The government's doing a terrible job of conveying the information of where we can and can't walk," Cleveland said.

All municipal and provincial parks and beaches, as well as many trails, have been closed for weeks to curb the spread of COVID-19. Three Nova Scotians have died due to complications from the virus, and 517 people have tested positive.

But some Halifax residents and legal experts say that more than three weeks into the provincial state of emergency, the orders are still too vague even as the number of tickets climb. 

Halifax Regional Police have issued 110 tickets since the state of emergency began on March 22, most for people being in areas determined to be off-limits under the Emergency Management Act. Thirty-two of the tickets were handed out since last Thursday.

Nova Scotia RCMP, meanwhile, have charged 116 people under emergency health orders and Cape Breton Regional Police say they've received 500 COVID-19 related calls and issued 66 tickets.

Flags in Halifax Common 'confusing'

Cleveland said he was stopped by an officer on the afternoon of April 9 after he had already travelled across the North Common, and was entering the flagged pathway near the skate park.

The Halifax Regional Municipality put up colourful flags on the paved pathways recently to show that they can be used for essential travel, but a spokesperson said people still can't gather on the paths or travel on the grass.

There was caution tape across the entrance to the South Common, but Cleveland said he ducked under it.

"By the time I got to the caution tape, I just found it confusing because, like, the flags were up, too, and I didn't know what that meant," he said.

He added that he was alone and not walking near anyone else.

"They didn't even give me a warning for what is a ridiculously large fine," he said.

David Fraser, a Halifax lawyer who specializes in privacy law, said it would be difficult to legally challenge a ticket for walking through the Halifax Common since municipal parks are closed.

But he said that doesn't mean it makes sense to ticket a person for doing so.

"It seems pointless to me," Fraser said. "What sort of public health risk is that person introducing?"

He added that if a health-care worker was trying to cross to get to the hospital, it makes more sense for them to walk in the Common and keep away from people, as opposed to a narrow sidewalk where it's not possible to physically distance.

"Some of these rules don't appear to be completely rational and … to enforce irrational rules in ways that are just punitive, I don't think serves any real purpose, and it could have a devastating economic impact on the person who receives that ticket," he said.

Wayne MacKay, professor emeritus at Dalhousie University's Schulich School of Law, agrees that the emergency legislation lacks clarity.

"It's an important principle of law that if you're going to be penalized, you should be able to understand and find the rule that you're violating," MacKay told CBC's Information Morning on Monday. 

He applauds a new project by the Canadian Civil Liberties Association that's collecting information from people who've been stopped or charged for failing to comply with the new COVID-19 rules.

Interaction starts with education, says HRP

Const. John MacLeod of the Halifax Regional Police said officers are supposed to have a conversation with people before they resort to writing a ticket. 

"Our overall approach is that our response starts with a conversation and education, and it's followed by enforcement if necessary," he said in an email.

Halifax Mayor Mike Savage said he continues to get calls from residents who are concerned that not enough enforcement is being done. A few weeks ago, someone broke a lock on a sports field in order to get inside, he said. 

"We [had] people climbing over fences of locked fields ... that's just completely irresponsible," he said. "That's people who are ignorant about the effects of COVID-19 on themselves and uncaring about the impacts of COVID-19 on others." 

Too many grey areas, experts say

Both MacKay and Fraser say the provincial public health orders should be clarified so there's no confusion about what is a recommendation and what is an order.

Currently people who live together — even families — could be ticketed for not physically distancing, which Fraser said could be avoided if an exception was added to the orders.

A spokesperson for the Nova Scotia RCMP said officers will make an exception as long as people can prove they live together by showing the same address on a driver's licence or a piece of mail.

In a statement, the province said the social distancing requirements apply to situations where people from different households may gather.

"While police have been given the authority to interpret and apply the Public Health Order, we know they are also being reasonable and understanding, based upon the unique circumstances of each situation," spokesperson Heather Fairbairn said in an email to CBC News.

She also said the province is encouraging people, even those who live together, to practice physical distancing, if possible, and said it's necessary if there is a suspected or confirmed COVID-19 case. 

Another grey area, in Fraser's mind, is non-essential travel. Although Dr. Robert Strang and Premier Stephen McNeil have advised against it, Fraser said there is nothing in the public health orders to prevent it.

If it's a problem, the province should include that in the orders and define it clearly so people understand how it applies to them, Fraser said.

He also said that police can pull people over for possible Motor Vehicle Act violations, but "don't have the rights to go on a fishing expedition to find out where people are coming from, where they're going, whether they're engaged in any essential travel."

We don't want to set ourselves up into a situation where police are apparently given a blank cheque.- David Fraser, privacy lawyer

Fraser said it's important that people know their rights, but also that police know their boundaries. 

"We don't want to set ourselves up into a situation where police are apparently given a blank cheque, particularly where historically, and not just in Nova Scotia, but in fact in Nova Scotia, where police power has been wielded in a way that's been discriminatory and has a significant negative impact on marginalized and racialized communities," he said.

MacLeod said officers are expected to conduct themselves "in an unbiased and respectful manner" at all times.

'Avoid anything green'

Cleveland is still working as a cook at a downtown restaurant during the pandemic, and said while he can afford to pay the fine, he doesn't believe the punishment is appropriate.

"That's almost an entire paycheque for me," he said.

His advice for Nova Scotians who don't want to get a ticket? "Avoid anything green," he said.

What the province is saying

A spokesperson for the province said what people are and aren't allowed to do during the state of emergency is based "on the best available evidence for preventing the spread of this virus."

Shannon Kerr said in an email to CBC that information about the new rules is shared during daily media briefings, in social media posts and can be found on the government's website.

"Nova Scotians need to follow the public health order, the state of emergency declaration, and the strong public health advice to prevent the spread of COVID-19 in the province," she said.