Public parks are essential public spaces. In ordinary times, they are places where people gather, play with kids, walk and play with dogs, play games with friends and strangers in the community, run, bike and express themselves. They are crucial spaces for community cohesion. But these are not ordinary times. People cannot gather in groups of more than five, and cannot come closer than two metres to each other. Some people are not allowed out at all due to self-isolation or quarantine orders.
Controlling COVID-19 requires strong measures to ensure public health and to flatten the curve on the spread of the virus. No reasonable person is denying that. In Nova Scotia, any orders made by Chief Medical Officer Dr. Robert Strang, arising out of medical evidence, to limit the activities of individuals, businesses and other entities to prevent the virus from spreading should be followed and should be justifiable under the Canadian Charter of Rights and Freedoms (Charter).
BUT
We all need to keep a watchful eye on the over-reach of state power during times of emergency. The public health emergency does not give the province justification to enact laws or make orders that go beyond what is legitimately required to control the spread of COVID-19, resulting in harsh impacts. The order under the Health Protection Act (HPA), by Dr. Strang is what is legitimately required and any complementary orders by the province have to be consistent with it. Oversteps by the state lead to violations of our civil liberties.
On March 22nd, the province made just such an overstep, issuing an order under the Emergency Management Act to prevent people from being in provincial and municipal parks, and examples of enforcement have shown the impacts have been harsh. On the province’s webpage informing the public about government action on COVID-19, they state, “Provincial parks, beaches, and tourist attractions are closed. Provincial trails will remain open for exercise. Gathering limits and social distancing guidelines must be followed.” On March 30, the province issued a Minister’s Directive under the Police Act, which stated, “police shall escalate their efforts from public education to enforcement, in accordance with officer discretion.” Specifically regarding the ban on public parks, the Order stated:
Police focus should be on the issuance of SOTs (summary offence tickets) for failing to comply with the Minister’s direction issued under Section 14 of the Emergency Management Act prohibiting all travel into provincial and municipal parks and beaches while closed during a state of emergency.
The ban on being in provincial or municipal parks in Nova Scotia goes beyond the requirements of Dr. Strang’s order, and is not otherwise justified by the federal Quarantine Act, any federal Order in Council or other emergency federal law or regulation put in place due to COVID-19. The park ban is an unjustifiable infringement of liberty rights under section 7 of the Charter because it is overly broad. Enforcement powers include the power to arrest and fine a person $697.50, as well as tow vehicles found parked at provincial or municipal parks.
In order to understand the disconnect between public health measures to control the spread of COVID-19 and the authority to arrest anyone, even if alone in a park, it is important to start with the order by Dr. Robert Strang.
Dr. Strang’s order is dated March 26, 2020, and amended on April 2, 2020. It was made under section 32 of the HPA, which provides the authority to the Chief Medical Officer (CMO) to make orders to regulate conduct of people and entities if the CMO has, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.” The order requires self-isolation or quarantine for 14 days for people who enter Nova Scotia, have been in contact with someone who has been diagnosed with COVID-19, are diagnosed with COVID-19 or have been tested for COVID-19. All persons who travelled outside Canada must do the same (which also arises from an order under the federal Quarantine Act). All persons in Nova Scotia, with exceptions for hospital workers and other specific workers, are required to stay two metres apart from others and to keep gatherings to less than 5 people. Schools, day care facilities and many businesses were also ordered closed in order to avoid the risks of spreading COVID-19. There was nothing about parks in Dr. Strang’s order.
Based on Dr. Strang’s order, if social distancing is maintained by at least 2 metres; any group is less than 5 people; and, there is no one in a provincial or municipal park that is under a quarantine or self-isolation order, then there is no reasonable and probable risk of spreading COVD-19 by simply being in a provincial or municipal park. That is a logical deduction. But the law requires more than just a logical deduction. It is necessary to examine what courts have said about liberty or other applicable rights as they relate to entering or being in public parks.
What does the law say about the right to be in a park?
The right to be in a public park is protected by the right of all persons to liberty. Liberty is a fundamental right, protected under section 7 of the Charter, which articulates the right to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” State action cannot be overly broad, so as to catch people who are actually following Dr. Strang’s order or other government orders made to reduce the risk of spreading COVID-19.
The Supreme Court of Canada explained the analysis for an overbroad law in R v Bedford:
[112] Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part. At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …
[113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.
Section 1 of the Charter only allows the state to impose reasonable limits on any rights and freedoms. The limit must only be what is minimally required for the state action, as held by the Supreme Court of Canada: R v Oakes.
The right to liberty has been an important issue for access to public parks. The law protects even the rights of people convicted of serious offences to be in public parks, allowing only reasonable limits. In R v Heywood, the Supreme Court of Canada (SCC) ruled on whether a total ban on entering any park at any time violated the liberty of a man convicted of sexual assault of children. They ruled that the all-out ban was overly broad because it prevented the person from going into any park, regardless of whether there were children present, therefore went beyond control of the offending behaviour (See Heywood pp. 794 – 795 in PDF). Regarding access to public parks, the SCC majority commented, “Parks are places which are specifically designed to foster relaxation, indolent contemplation and strolling; in fact it may be assumed that “hanging around” and “idling” is encouraged in parks.” (See Heywood, p. 795).
So, even someone convicted of sexual assault of children was allowed in some public parks as long as they were not areas that were frequented by children. Should Nova Scotians without such convictions, who venture alone into Nova Scotia parks and are following all other conditions of Dr. Strang’s order, be more restricted than those convicted of sexually assaulting children?
The right to be in public parks came up again at the British Columbia Court of Appeal (BCCA) in a case involving homeless people tenting overnight in parks. In Victoria (City) v Adams, the BCCA ruled that a city bylaw that prevented homeless people from sleeping in tents in a public park overnight was overly broad, therefore unjustifiably breaching the liberty of homeless people. They described the liberty issue as follows:
[104] … The trial judge summarized her conclusion on the deprivation of liberty (at para. 148):
The majority of homeless people in Victoria have no choice but to sleep on public property. There is no other place for them to go. I agree with the submission of the [respondents] that creating shelter to protect oneself from the elements is a matter critical to an individual’s dignity and independence. The state’s intrusion in this process interferes with the individuals’ choice to protect themselves and is a deprivation of liberty within the scope of s. 7.
They concluded why the bylaw was overly broad:
[116] … The prohibition on shelter contained in the Bylaws is overbroad because it is in effect at all times, in all public places in the City. There are a number of less restrictive alternatives that would further the City’s concerns regarding the preservation of urban parks. The City could require the overhead protection to be taken down every morning, as well as prohibit sleeping in sensitive park regions.
Victoria (City) is an important ruling on the range of liberty in public parks. It emphasizes the importance of protecting the right to access and use of these public spaces for activities that are fundamental to our well-being. In this case, it was the right of homeless people with nowhere else to stay to cover themselves with overhead protection while sleeping overnight. Perhaps even more important is the larger meaning of such a ruling. That is, there can only be minimal restrictions on liberty in public parks, and these restrictions must be targeted only to serve other, legitimate public interest functions.
In another BC case, City of Surrey v Lewis, the provincial court of BC decided that a person did not have the liberty to simply be in a park overnight, after the park was closed, because this was a reasonable limit, to avoid the need for the city to have to service the park overnight. This limit was not considered overly broad. The court was still required to consider the issue because the right to liberty was raised, and it applies to public parks.
The noted cases provide guidance on how liberty rights apply to public parks, as well as how to measure whether a law is overly broad, which is addressed in Bedford. The SCC cases of Bedford and Heywood are binding on all of Canada. Overall, the cases noted above make a few points clear.
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People do have the right to enjoy public parks, as they are places where people engage in activities that support their well-being;
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Governments cannot limit access to parks unless the limit is justified under a precise, lawful authority that is not overbroad;
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It is okay for governments to limit the use of parks to only those times that they can be serviced, which excludes overnight use for non-campground parks
It should also be remembered that in Bedford, enforcement practicality is a possible basis for justifying an otherwise overly broad law. Enforcement practicality was never actually analyzed in Bedford, but it can easily be surmised as what is reasonably necessary for enforcement to even be functional.
Why the ban on entering parks in NS likely violates the Charter
Recounting the analysis of overbreadth in Bedford quoted above:
… the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual.
Even though the ban arose out of a Minister’s Directive rather than Dr, Strang’s order under the HPA, the whole point of the Directive is to support Dr. Strang’s order. Again, Dr. Strang’s order is based on, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.” Dr. Strang did not see it as necessary to add a ban on entry to public parks to his order. Under the current NS ban on entering provincial and municipal parks, people are being denied entry to all areas except certain approved walking trails in provincial parks or trails through other parks that are used for crossing them on the way to work or other destinations. No playing. No staying. The ban applies during the day. It applies to individuals and groups of 5 or less people, even if they are physically distancing by at least 6 feet. As an example of how the park ban has gone well beyond the limitations set by Dr. Strang or any other measures rationally connected to limiting the spread of COVID-19, on March 29th, a woman was arrested at Point Pleasant Park in Halifax for a violation of the park ban. She was alone with her dog. Her car was also seized. There are likely many more examples. On April 6, it was reported that 39 tickets had been issued on the weekend of Saturday, April 4th and that most were due to being in prohibited areas under the Emergency Act, which likely refers to being in public parks. Police tape has also been placed outside of a number of public parks, with tape going up in areas of the Halifax Commons as of April 6th.
Banning entry to provincial and municipal parks is not necessary as a means of enforcement practicality. There is nothing stopping police from simply enforcing the same limitations set out by Dr. Strang that apply to other non-residential locations to provincial and municipal parks. There is no way to know if an individual simply entering a park is going there to meet five or more people and stand within 6 feet of them. If police see people entering parks in groups of five or more, they can be stopped. If police see people refusing to physically distance themselves on their way into a park or in a park, they can be stopped. Additionally, police in Nova Scotia were only pressed to take stronger enforcement action since March 27th. The province initially allowed for a more voluntary approach to compliance with Dr, Strang’s order and the park ban. There is no clear evidence that there was ever an issue with enforcement practicality before the park ban.
The already over-extended powers are being abused, giving indication that the police have been given too much leeway through the park ban. The Nova Scotia Advocate reported that on April 2nd a woman was stopped by police at Clayton Park on a walking trail and questioned about whether she lived in the neighbourhood. There is no order in effect that requires a person to stay in their own neighbourhood. This was unquestionably a street check, which is a police stop where there are no reasonable grounds for the stop, and where police are merely fishing for information. No one has to provide any identification, submit to any search or answer questions during these stops and police have no authority to detain a person under these circumstances. In 2019, an extensive report was prepared for the NS Human Rights Commission by Dr. Scot Wortley of the University of Toronto’s Centre for Criminology & Socio-legal Studies, making a number of recommendations, including for police to respect a person’s rights by informing them that they do not need to co-operate with police information-gathering in a street check. As the Nova Scotia Advocate article warned, people have reason to be concerned that police have been given too much latitude and that it will predominantly affect racialized people who live in poor neighbourhoods.
And what about mental health?
It is important to also keep in mind how crucial it is that people have the means to take care of mental health. The federal government has acknowledged the stress people are under due to COVID-19 containment measures. On their webpage on Mental Health and Coping during COVID-19, they note the importance of regular exercise and walks, as well as to, “make opportunities for children to play and relax.” Not everyone has a backyard, making access to parks for them even more important for them, as a place to get outside and further away from urban noise. There have been reported concerns about a mental health crisis as a result of the anxieties and isolation due to COVID-19.
In conclusion
Denying people the right to enter parks, even if they are physically distancing and following the other conditions of Dr. Strang’s orders tightens the vice grip on many who are already feeling squeezed. Even in times of emergency, we should not assume that every measure taken by governments is necessarily in our best interest and for our safety. We should educate ourselves and be vigilant about the possibility of emergency circumstances giving the state the opportunity to overcompensate and thereby limit the rights of people, further restricting access to spaces that are necessary for our well-being. The ones who will predominantly suffer under the enforcement regime are poor and working class people, and among them, predominantly Black and other racialized people who have historically been targeted to a disproportionate level.
Furthermore, we should consider how important access to public spaces will be when the pandemic is over. People will need to gather in order to assert the interests of working class and marginalized people who were the most severely impacted by the pandemic. If we give the state more leeway to restrict our rights now, that power advantage can be used in the face of opposition the state may face down the road.
Asaf Rashid is currently on leave from practice and living in Halifax.
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