Stay at Home – or Face Penal Consequences

Overview

On March 17, 2020, Premier Ford, under the authority of the Emergency Management and Civil Protection Act (“EMCPA”), declared an emergency in Ontario resulting from the danger associated with the COVID-19 outbreak.

Following the declaration of an emergency, subsection 7.0.2(2) of the EMCPA provides the Lieutenant Governor in Council with the authority to make orders that are necessary and essential in the circumstances to prevent, reduce, or mitigate serious harm to persons or substantial damage to property.

Since the declaration of an emergency in Ontario, several orders have been made under section 7.0.2 of theEMCPA. These orders provide for the implementation of such measures as:

  • The closure of establishments and businesses identified as non-essential;
  • Limitations on the manner in which establishments and businesses deemed essential are permitted to interact with the public;
  • The closure of public and private indoor and outdoor recreational amenities, including portions of parks;
  • Restrictions on the number of people permitted to attend public and private events and gatherings;
  • A prohibition against selling prescribed goods at inflated prices; and
  • A prohibition on recreational camping on public lands.

Offences

It is an offence to fail to comply with an order made under the EMPCA.

Examples of activities which would constitute an offence and may result in charges include:

  • Taking part in a gathering with more than five people who are not from the same household, such as hosting or attending a house party with more than five people;
  • Operating a non-essential business in a manner that is not consistent with the order, such as a restaurant permitting patrons to dine in;
  • Selling goods such as masks, gloves, and cleaning agents at inflated prices; and
  • Using a public sports facility, such as a basketball court, soccer field, baseball diamond, or skate park.

Provincial offences officers, including police officers, First Nations constables, special constables, and municipal by-law enforcement officers have the authority to lay charges for failing to comply with an order made under the EMCPA.

Procedure

The Ontario Court of Justice has jurisdiction over charges laid under the EMPCA. The proceedings are governed by the Provincial Offences Act (“POA”).

The POA provides that charges under the EMPCA may be laid either through a certificate of offence, known as a “Part I” proceeding, or through an information, known as a “Part III” proceeding.

Where a charge is laid through a certificate of offence under Part I of the POA, the individual named in the certificate of offence has three options for proceeding:

  1. The individual may pay the set fine as indicated on the certificate of offence, thereby acknowledging that he or she is guilty of the alleged offence;
  2. The individual may request a meeting with a prosecutor to discuss the offence and explore opportunities for resolution; or 
  3. The individual may request a trial.

Where a charge is laid through an information under Part III of the POA, the individual named in the information will be summonsed to appear before the Ontario Court of Justice on a date indicated in the summons. Following the individual’s first appearance before the Ontario Court of Justice, the individual will have the opportunity to plead guilty, discuss resolutions with the prosecutor, or proceed to a trial.

Penalties

While the EMPCA provides that the set fine for failing to comply with an order under the EMPCA is $750.00, subsection 7.0.11 of the EMPCA indicates that, on conviction, penalties could be significantly higher than the set fine, as follows:

  • An individual may be fined up to $100,000.00 and imprisoned for up to one year;
  • An individual who is a director or officer of a corporation may be fined up to $500,000.00 and imprisoned for up to one year; and
  • A corporation may be fined up to $10,000,000.00.

Further, on conviction, the court may increase a fine imposed on a person by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence.

Conclusion

The intent of the orders made under the EMPCA is to mandate physical distancing in order to reduce and mitigate the effect of COVID-19 within Ontario. The importance of complying with such orders is evident and the penalties for failing to comply with an order, with fines starting at $750.00, are proportionate to the potential harm that may be inflicted on others through disregarding these physical distancing measures.


Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website.  Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.