Navigating Ontario’s Stay at Home Order

Jan 28, 2021

We have been notified of another two weeks of enforcement of the stay-at-home order (formally known as O. Reg. 11/21 under the Emergency Measures and Civil Protection Act or “EMCPA”) until February 8, 2021. What the measures cover is a topic of much ambiguity and speculation. The order broadly requires people to stay in their primary residence but allows a person to be away from home for “essential” purposes like:

  • Work, school, childcare
  • Obtaining essential goods and services
  • Assisting others
  • Health, safety, and legal reasons
  • Travel
  • Certain gatherings
  • Health and safety of animals

At the outset, there were promises by police and other enforcements agencies that there would not be random spot checks performed on drivers and that invasive questioning during a detainment into people’s personal lives would not happen. Mere days after the order the was effective, there were reports in the media of these things happening, mostly driven by complaints of neighbours.

But what about those who have been charged under the Act? Is it fair to say that they violated the order and deserve the charge? A reminder that these individuals are innocent until proven guilty and with no clear guidelines on what is or is not allowed, this is open to interpretation. We see some videos circulating on social media and the news with police invoking the Reopening Ontario Act (“ROA”) and EMCPA in their demands for information. So, what are your rights?

Driving

One person in the vehicle

If you are the only person in the vehicle and you see the police signaling you to pull over, does this make the stop unlawful? Not exactly. If you are pulled over in your vehicle, there are supposed to be reasonable and probable grounds of an offence being committed. For one person in a vehicle, these grounds would not exist under the ROA or EMCPA’s regulations. The reasonable and probable grounds may be related to the driving of your vehicle and an alleged offence under the Highway Traffic Act (“HTA”).

If the officer asks you to provide your licence, registration, and insurance, you must comply with this request. Driving is a privilege, and you are required under the law to allow an officer to inspect your licence, registration, and insurance because of the statutory requirement to have those things. And now something interesting happens, they ask you where you are going. What do you do? In law, you have no obligation to answer this question. You may politely tell the officer that you do not wish to discuss your day with them and request why they pulled you over.

It is key to these situations to be as polite as you can and say as little as possible. You have fulfilled your legal obligation to furnish the required information to the officer, anything you say beyond that is done at your own peril. It is true what they say in the caution, it will be used against you in court.

More than one in the vehicle

A vehicle of more people is a different story. It may be more reasonable and probable to assume that all the people in the vehicle are not from the same household, particularly if they all appear to be approximately the same age. The good news is what you do does not change! Pull the vehicle over, provide your licence, registration, and insurance when asked, and have no further conversation about the matter. If the ask any further questions, politely reply that you do not wish to discuss your day with them and request why they pulled you over. The only extra thing you need to do in this case, is ensure all your passengers remain quiet as well. They may be asked a set of questions (see below), which under the law they will have to give responses to, but that is it. This scenario has already occurred and everyone in the vehicle was charged.

Driving summary

The police cannot assume you are contravening the EMCPA regulation just from the fact you are in a vehicle because there are legal exemptions. The only information you must provide if you are pulled over while driving is your licence, vehicle registration, and insurance. You are not legally required to answer any other questions, including “Do you know why I pulled you over?”. If the officer issues an EMCPA ticket and you have not told them anything about your day, that charge is unlikely to proceed on those grounds. The prosecution, without any statement from you about where you were or where you are heading, will lack a reasonable prospect of conviction. If you are with a group, make sure they keep quiet and only answer to the required information requested below.

A different situation:

Suppose you are walking outside and are stopped by an officer or you are a passenger in a vehicle. They ask you for your licence and say you must give it to them under the ROA. This is false. You are only required to provide your correct name, correct address, and correct date of birth. There is no requirement to provide further validation, like a licence. Like the driving situation, you are not required to answer any further questions about where you were or where you are going. Say only what you must and nothing else.

Can I be arrested?

In short, yes, you can be. Under the Provincial Offences Act (“POA”), arrests are a possible outcome, but in these kinds of cases, expected to be rare.

One such case where an arrest is possible would be if you attempt to flee. Whether walking, driving or a passenger, fleeing without providing the requested information is a bad idea and not encouraged. Once detained again, you will have committed another offence by fleeing, leading to more charges. You will have also provided the reasonable and probable grounds for the officer to lay those charges by fleeing. So just remember:

  • If an officer pulls you over while driving, you must provide your licence, registration, and proof of insurance.
  • If an officer stops you while walking or as a passenger in a vehicle, you must provide your correct name, address, and date of birth.
  • In any case, you are not obligated to provide any further information, but always be extremely POLITE!

Have you received a “COVID” ticket? Call or email us at Dean Cservenyi LLP. We can help you through a tough time!