Increasing criminalization during a pandemic is not the solution

The law is a blunt instrument that determines whether people are good or bad, guilty or not, law-abiding or otherwise. 

We’ve seen this with the pandemic, as cities across the country have passed by-laws to regulate physical distancing in parks and public squares. Meanwhile, Ontario has granted police the power to require individuals to identify themselves if charged with breaching an order under the Emergency Management and Civil Protection Act (EMCPA). And federally, it is still unclear how the police are expected to enforce the Quarantine Act. 

These are extreme measures to tackle the impact of COVID-19, but they also raise a worrying question. Is criminalizing movement in Canada doing more harm than good?

Indeed, vulnerable populations and criminalized communities will suffer greatly as a result of them. Social distancing is a privilege.  Think of those who are without stable housing, or who work in precarious jobs to survive. And what about sexual assault survivors who suffer from post-traumatic stress disorder and anxiety? Some of them may badly need to get outside to ground themselves.

One of the popular hashtags to emerge recently is #PolicingThePandemic. Among those embracing it and discussing the threat of community policing are advocates and even elected politicians rightly concerned about increasing criminalization. There’s an online map that now tracks police charges related to COVID-19. The Canadian Civil Liberties Association has also stepped up, encouraging those who have been charged due to a COVID-19 distancing violation to contact them to monitor how authorities are enforcing these new laws.

What’s more, we cannot ignore the disproportionate impact that city by-laws and legislation have on queer and trans* BIPOC (Black, Indigenous, and People of Colour) folks in particular. On April 2, 2020, the Ontario Human Rights Commission (OHRC) released a human rights-based approach policy statement on managing the COVID-19 pandemic. In its statement, it listed the negative impact that measures were having on the human rights of vulnerable groups – among them the potential discriminatory enforcement of emergency or public health-related measures.  

In Britain, the first person to be arrested and convicted under the Coronavirus Act, which grants emergency powers to deal with the pandemic, was Marie Dinou, a Black woman. In New York City, a woman in Bed–Stuy, a predominately Black neighbourhood, was arrested under the state’s social distancing legislation and then forced to share a dirty cell with two dozen women for 36 hours.  Closer to home, Ottawa School Board Trustee Donna Blackburn threatened to call by-law officers on Styles LePage, a 17-year-old Black boy, for playing basketball outside. The activist and journalist Desmond Cole notes that increasing criminalization during the pandemic will create a feedback loop ensuring that the very act of being in public is made illegal. The danger is that the police and other officers can use social distancing law as a shield when called out on abusing their newfound power.

Municipal, provincial and federal social distancing legislation and those who enforce it fail to look at the trickle effect. Fining vulnerable populations or putting them in to prisons does more harm than good. It pushes them further into poverty and into precarious work.  It also compromises their health and increases the spread of COVID-19.

The OHRC has already issued a call to strengthen human rights accountability and oversight. I would add that harm reduction solutions, such as education, resources, support and protection, are imperative. Criminal defense lawyers like Chris Sewrattan, who have broken down Ontario’s social distancing laws, and legal clinics like the Black Legal Action Centre, are inadvertently proving that legal education is a better solution, and a more effective form of deterrence, in addressing this global health crisis, than the creation of new criminalizing laws.

Instead of policing the pandemic, we should focus on solutions that respect the life and livelihood of vulnerable populations and criminalized communities.