Police can and should enforce COVID-19 health orders in Saskatchewan

This is an opinion piece by Brian Pfefferle, a Saskatoon criminal lawyer and sessional instructor at the College of Law at the University of Saskatchewan.

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Public health orders during the COVID-19 pandemic have changed our lives in countless ways, leading some to question if they are necessary.

Should the orders be followed? What are the consequences for not following them? What can the state even do if we chose civil disobedience?

As a lawyer, I'm here to speak to those questioning whether the police have the power to enforce these public health orders.

Yes, they do.

Yes, they should.

Leaders forced to make unpopular decisions

COVID-19 has been a very challenging time for everyone.

We've gone from our communities caring for one another and being "in this together," to having to set up a system for reporting violations of public health orders. We have also turned on our leaders and those tasked with enforcing public health orders.

Our chief medical health officer Dr. Shahab has recently urged citizens to use these 'snitch lines,' remarking that "the time for education is now mostly over." Law enforcement will now be asked to issue more fines and summonses for court to those alleged to be violating the orders.

Political leaders and municipalities have been forced to make some very unpopular choices. Yes, the police may be called to interrupt your 30+ person shinny game. They may even charge you.

Enforcement is Not About Making Friends

Premier Scott Moe, Dr. Saqib Shahab and law enforcement agencies are knee-deep in a public tug-o-war with Saskatchewan citizens. Although they have signed up for their various roles, they nonetheless occupy unenviable positions as they are compelled to curtail our dearly valued rights and freedoms to fight the spread of COVID-19.

Speaking of dearly valued things, we also value our family, our friends and our neighbours. Or at least we should.

Simply enacting public health orders without sensible enforcement makes them nothing more than suggestions. Without enforcement, many citizens will ignore orders that have been carefully crafted attempting to balance the various competing interests at stake.

If citizens disagree, our legal system is equipped to resolve these types of disputes between citizens and the state. To be effective, laws need to be enacted, sensibly enforced and tried with due process

Constitutional challenges don't get resolved on the ice.- Brian Pfefferle

As a disclaimer, I believe a peaceful and just society depends not only on measured and reasonable laws, but also measured and reasonable people.

As this pandemic has demonstrated, even in this great province people will disagree. Sometimes strongly.

Our laws, as supported by our legal system, will play a fundamental role in ensuring we recoverfrom COVID-19 and continue to progress as a nation.

I do not condone "thumbing one's nose" at public health orders. But many have asked, what if I do?

Some citizens have suggested that police have no real power to even enforce these orders. Although challenges exist, the police certainly do have such power.

Saskatchewan Police Powers in The Pandemic

What good would child protection laws, labour laws, conservation laws, animal cruelty laws, or any other laws be without enforcement?

So in March of this year when Premier Moe signed an Order in Council amending The Summary Offences Procedure Regulations, he appropriately empowered police and bylaw officers with the ability to enforce public health orders in the same way they would enforce any other provincial law.

As in normal circumstances, police can still enter a private home if they obtain a warrant. A justice or judge can grant police a warrant to enforce the public health orders, or to investigate a crime.

Police are also allowed to arrest people who are breaching the peace or are expected to do so, although it would be extremely unlikely in the case of COVID violations.

Public Health Orders Must Consider the Charter

Canadians who wish to challenge whether the state has the authority to enact these orders have a civilized mechanism to do so: the judicial system.

It is important to emphasize that the law does not say that rights can never be restricted. The very first section of the Canadian Charter states that rights and freedoms are subject to (emphasis mine) "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

The rule of law

With freedoms and rights, come responsibilities.

We have a free health care system that we all depend upon in Canada. Health experts are sounding alarms about COVID-19's potential to overwhelm the system in our province.

The rule of law in society requires rules to be followed. Where they are not, sensible decisions to charge alleged offenders should occur. These decisions will be unpopular and divisive, like many made during the COVID-19 response.

It is admittedly hard to reconcile snitch lines, heavy fines and police enforcement with "togetherness," but this is the rule of law.

Like all of us, police and law enforcement are caught in the middle of a very difficult and emotional rights debate. They do not make the laws they are asked to enforce. So if they come to break up your game of shinny, be respectful. Constitutional challenges don't get resolved on the ice.

This column is part of CBC'sOpinionsection. For more information about this section, please read thiseditor's blogand ourFAQ.

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