Nova Scotians attempting to challenge tickets handed out in the spring for COVID-19 offences are beginning to get their day in court, including more than 30 who have been successful in having their tickets tossed.
But those who analyze constitutional law say the process could be difficult and expensive, which could lead to many people simply choosing to pay the fine even if they believe they were ticketed unfairly.
“It puts the burden on individuals to go through this,” said Abby Deshman, director of the criminal justice program with the Canadian Civil Liberties Association.
“It does take oftentimes some wherewithal, some connections, some resources, particularly if you want to hire your own lawyer [to fight a ticket],” she said. “That would often be more expensive than just paying the ticket in the first place.”
The bulk of the more than 700 tickets issued in Nova Scotia under the Emergency Management Act and the Health Protection Act — the two laws used to govern COVID-19 offences in the province — were handed out in April, according to data from police agencies.
Infractions ranged from not properly self-isolating to walking in parks closed by emergency order. In many cases, fines were between roughly $700 and $1,000, although both acts stipulate they can be significantly higher.
Deshman said the civil liberties group has been tracking situations across the country and believes there were some circumstances where COVID-19-related laws were unconstitutional, because they weren’t clear or were too zealously enforced.
“It’s a difficult time for people to just go about their daily lives, much less think about how to mount a legal challenge to a ticket,” she said.
More people likely ‘to challenge’ rules
As of Sept. 24, Nova Scotia’s Justice Department said police agencies in the province had issued at least 715 tickets. New Brunswick had issued 180 and 50 had been handed out on Prince Edward Island.
“I think especially during the peak of the pandemic, most everybody was pretty well willing to accept that as necessary and important to protect everyone’s safety. And that may be what they’ll decide at the courts at the end of the day,” said Wayne MacKay, a professor emeritus of constitutional law at Dalhousie University.
“But I think as time wears on, and people get more tired, there’s likely to be more people willing to challenge some of those rules.”
As of late September, 163 people had chosen to take their Health Protection Act tickets to court instead of paying the fine, although 119 of those cases were still pending, according to numbers from the Nova Scotia Judiciary.
However, in 31 of the 44 cases that had been heard, the ticket was dismissed. The rest were sentenced to fines.
Justice Minister Mark Furey declined an interview but sent a statement saying police are responsible for the policies around enforcing public health directives, and “individual officers use their discretion when it comes to issuing tickets.”
Joshua Nodelman, a lawyer with Nova Scotia Legal Aid, said the organization is providing free advice appointments to those who wish to fight tickets, although it generally doesn’t represent people in court on summary offence tickets. Nodelman said legal aid had done more than 20 advice appointments by late September.
Nodelman said in most cases where people contacted legal aid about tickets issued in the spring, they had been given court dates in October and November.
“It may yet be early days for a number of these tickets in terms of [them] actually coming to court,” he said.
Thousands of tickets issued in Quebec
That is still quick in comparison to what’s happening in some other parts of the country.
In late August, Radio-Canada received data showing 3,570 tickets had been issued in Quebec and that 1,354 of those were being contested.
Thierry Rassam, a lawyer and the president of SOS Ticket, a Quebec firm that usually helps people deal with traffic violations, said early in the pandemic his company started to get many calls for help with COVID tickets. He has agreed to represent a couple dozen where he feels the case is strong.
However, Rassam said due to backlogs, those people might not be going to court for at least a year.
“We’re still very far from that,” he said.
He also thinks it’s likely a new wave of tickets will be issued soon in Quebec, which is dealing with a huge spike in COVID cases that has prompted the province to introduce new health directives on things like gatherings in private residences.
The two largest police agencies in Nova Scotia laid the majority of their COVID-19 charges in April and saw steep declines after that.
RCMP in Nova Scotia said by late September they had laid 274 charges under the Emergency Management Act and the Health Protection Act, including 185 in April. Halifax Regional Police said its officers had laid 221 charges, including 172 in April.
In some cases, people chose not to contest their tickets. By late last month, 63 tickets issued under the Health Protection Act had been paid in full, and six were partially paid, for $62,129.46 in fines collected, according to the Nova Scotia Judiciary.
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