Nova Scotia

Order or advice? Law expert says enforcement of COVID-19 rules is complicated

As police in Nova Scotia ramp up enforcement of public health orders, a legal expert is cautioning that these cases aren’t all open and shut, and could result in legal challenges if they end up in court.

'There's no real book for how they should operate in this situation,' says Wayne MacKay

Wayne MacKay, a law professor at Dalhousie University, says people could argue that some public health orders are ambiguous and challenge them in court. (CBC)

As police in Nova Scotia ramp up enforcement of public health orders, a legal expert is cautioning that not all cases are open and shut, which could mean people end up challenging orders in court.

On Sunday, Premier Stephen McNeil said "a reckless few" have been ignoring orders under the Nova Scotia Emergency Management Act, which came into effect March 22 in an effort to limit the spread of COVID-19. 

As a result, the premier asked Justice Minister Mark Furey to direct police to begin towing vehicles and ticketing people who don't follow the rules, which include staying out of all provincial parks and beaches, as well as municipal beaches, parks and many trails.

A 44-year-old woman walking in Point Pleasant Park in Halifax on Sunday was ordered to pay $697.50, the first ticket issued under the Emergency Management Act, while a 65-year-old Truro, N.S., man was fined $1,000 under the Health Protection Act for failing to self-isolate.

On Monday, Millbrook RCMP charged a business for remaining open when it was not allowed to. The business was fined $7,500 under the Health Protection Act.

Still, Wayne MacKay, professor emeritus at Dalhousie University Schulich School of Law, said some rules are less clear.

"Part of the confusion I think is that there's no real book for how they should operate in this situation," MacKay told CBC's Information Morning.

For example, can a police officer who discovers you're walking outside your neighbourhood order you to return home?

The premier has repeatedly asked everyone to remain in their own neighbourhoods during the state of emergency. But MacKay said that advice doesn't appear to be an order under the Health Protection Act for which people can be fined.

"What is advised by the premier or Dr. [Robert] Strang is one thing. What's an order under the Health Protection Act is another thing."

The gate to the lower parking lot of Point Pleasant Park shown closed and locked on March 23, the first full day Nova Scotia was under a state of emergency due to COVID-19. (Paul Palmeter/CBC)

Under normal circumstances, MacKay said trails, parks and beaches that are off limits should be well marked with signs so there's no ambiguity about whether the public is allowed to be there.

"But one can understand with all the things going on that perhaps they haven't got around to that yet," he said.

If someone refuses to pay a fine, the dispute could end up in a lower-level court, said MacKay. 

"There will certainly be some challenges, and a lot of people saying, 'Well that's not how I interpreted or understood the rule. I thought I was obeying the law,'" he said. 

In New Brunswick, two men are facing assault charges after they allegedly coughed on a housemate who confronted them about not properly self-isolating.

Even though it's unclear whether the two accused have COVID-19, MacKay said the assault charges have a good shot of holding up in court. He pointed to similar cases that were upheld where people spat on police officers. 

"And it doesn't really seem to matter if they in the end did not have COVID-19 … because their intent was to intimidate by applying this force," he said.

Dr. Robert Strang, Nova Scotia's chief public health officer, has said people should first have a conversation with someone they see who appears to be ignoring public health orders before they call a non-emergency police number.

Nova Scotia announced its first case of community spread on Monday as the total number of confirmed cases of COVID-19 topped 127. 

With files from CBC's Information Morning