How does a golf course open for three days and counting in defiance of provincial lockdown rules with impunity? And what message does that send those who are following the rules Queen's Park says will tame COVID-19?
It's complicated, experts say. While the lack of enforcement — no tickets, no charges, no consequences as of Monday afternoon — against the Bridges at Tillsonburg might undermine public faith in the rules, it’s not as simple as police slapping down a fine and calling it a day, they say.
“In any public health crisis, whenever we’ve used enforcement, it hasn’t worked,” said Western University sociology professor Laura Huey, who studies criminology and policing. “Policymakers have to come up with a different approach to this. There are some businesses and some people, you give them a fine, it’s going to have zero deterrent effect.”
She said most police forces in Ontario are opting for an educational and engagement approach to lockdown restrictions, rather than jumping straight to enforcement that she said should “always be the last resort.”
Though that could be one reason the golf course wasn’t shut down, there’s also the issue of limited police resources and the potential for backlash that could make the situation worse, Huey said.
As for why no tickets or charges have been issued, Huey said turnaround time between the time of an offence and a charge being laid is common.
“It takes time to actually make a case stick, especially if you want to proceed through the courts,” Huey said. “You have to do your due diligence.”
That stance was echoed by Oxford OPP that serves Tillsonburg.
“When police enter into any investigation, background information and further legwork are often required for it to be thorough,” Const. Patti Cote said in an email. “Legislation offers police time periods so that any potential charges can be laid after the investigation is initiated.”
Cote said she was unavailable for an interview about the golf course opening.
“It is important for the public to understand there are consequences for individuals who choose to defy the (rules) while emergency orders are in force,” she said in the email.
Police made no clear public statement about possible enforcement against the Bridges at Tillsonburg, whose course was fully booked Saturday and Sunday amid stay-at-home orders designed to slow COVID-19’s spread.
Huey’s suggestion to increase compliance among businesses is simple: pull the licences of offending businesses.
“We react really well to rewards and punishments, but a fine is not, in and of itself, likely to be a deterrent,” she said. “If you want businesses to comply, start looking at things in terms of licensing. If you want individual people to comply, look at what actually matters to them and then target that.”
Enforcement discrepancies among jurisdictions also shouldn’t be unexpected, with more than 50 different police forces in Ontario all taking different approaches to crack down on emergency law scofflaws.
“Law enforcement has a lot of discretion about how they approach a range of behaviours that might contravene a law,” said Abby Deshman, criminal justice program director with the Canadian Civil Liberties Association. “We do hope that law enforcement will keep some room for constitutionally protected activities, like protests, that are done in a way that do not significantly prejudice public health.”
She said jumping to punishments shouldn’t be the first approach, and in many instances, such as protests or business opening in defiance of lockdowns, likely wouldn’t have much impact.
“A lot of these people are doing this knowing what the potential punishment is and knowing they’re engaging in civil disobedience, and in many cases, I would imagine that’s the point,” Deshman said. “It's better treated as an opportunity for education, engagement and risk mitigation.”
Earlier this month, the Ontario government banned organized outdoor recreation, including golf and tennis, in an effort to stop the spread of COVID-19.
Outdoor recreation is set to remain closed until at least May 20.
Although the province has the authority to order different closings and enact restrictions, that doesn’t necessarily mean the laws will stand up in court, said Western University law professor Sam Trosow.
“It might be that they (police) are hesitant to actually issue sanctions against the golf course because they’ve been advised by a cooler head or someone who is looking at this more critically that they might lose it, a court might not enforce it,” he said.
“Just because we’re in an emergency and in a pandemic doesn’t mean that the government can issue arbitrary and unreasonable regulations.”
If an individual golfer who played on the weekend were to be charged, Trosow said, they could likely argue they weren’t causing the kind of harm the provincial laws were designed to guard against.
“I just don’t think a lower-level judge is going to be all that excited about upholding the charges against golfers,” he said.
Still, a lack of enforcement of provincial rules does cause concern for the public, undermining people's confidence in both the government and legal system, Trosow said.
But calls for greater police enforcement of certain lockdown rules could create murky waters, Huey said, with a double standard for what types of protests and activities ought to be allowed amid lockdowns.
“It might be golf today, but it might be climate change (protests) tomorrow," she said.
Max Martin, Local Journalism Initiative Reporter, London Free Press