Nunavut’s ban on gatherings goes too far, says civil liberties watchdog
“We have grave concerns that the order is unconstitutional”
Peace officers, like these in Kugluktuk, should obtain warrants before they enter a residence in Nunavut to break up card parties, says the Canadian Civil Liberties Association. (Photo courtesy of the Kugluktuk Peace Officers)
The Canadian Civil Liberties Association says that Nunavut’s government has gone too far with its public health order that bans gatherings and allows for entries into homes without warrants under certain circumstances to help prevent the spread of COVID-19.
The public health order has led communities like Kugluktuk to send in peace officers to break up parties where residents had gathered to play cards.
The CCLA wrote a letter on April 8 to Nunavut Justice Minister Jeannie Ehaloak, citing its concerns about Nunavut’s order on mass gatherings.
“We have grave concerns that the order is unconstitutional,” said the letter signed by Michael Bryant, the CCLA’s executive director and general counsel.
“The constitution sets a higher standard for necessity, clarity and proportionality for orders than is found in this one signed by Dr. Patterson,” Bryant said in the letter, to which he has not yet received a response.
The Government of Nunavut’s Justice Department didn’t immediately respond to a request for comment.
The order, which was first issued on March 20, is still in effect for the extent of the health emergency in Nunavut.
Bryant told Nunatsiaq News the order is “overbroad and unnecessarily vague” compared to other similar public health orders in Canada because it doesn’t define what a public gathering is.
The order states only that “all public gatherings are prohibited.”
“If family goes outside, is that a public gathering? This provision would prohibit arguably a household from opening up their front door to someone,” he said.
Such an order also puts people’s freedom at risk, because he said they think twice before they exercise their freedom and liberty, which he called one of the cornerstones of Canada.
Nunavut’s order also says that peace officers may enter a dwelling without a warrant if the occupant or person in charge of the dwelling consents or if the dwelling, or something in or only accessible through the dwelling, is “a serious and immediate risk to public health.”
Bryant said the legal test of permitting warrantless entry is “exigent circumstances”—such as an officer seeing a gun to the head of someone through the front window.
Warrantless entry being justified by COVID-19 prevention in Nunavut, where there are no confirmed cases yet, would be illegal, he said.
“If no one has it in Nunavut, why are you breaking up card parties?” asked Bryant, calling the move in Kugluktuk to break up household card parties an example of “policing overreach.”
And they should not enter a household without a warrant, he said.
A warrant is a document that authorizes the police to make an arrest, search premises or carry out some other action related to the administration of justice.
“Entering without a warrant, it’s unlawful entry and an unlawful search,” he said.
As well, Bryant said peace officers have fewer qualifications and, unlike RCMP officers, are not accountable.
“If you have an complaint against [a] police officer, you can get an independent investigation. You can’t do that for these enforcers,” he said.
If fines are eventually handed out in Nunavut, Bryant said they could be challenged in court.
In fact, the entire order could be tossed out, he suggested, if a Nunavut lawyer decided to take on that challenge.
Some Nunavummiut have contested the warrantless right of entry on social media, although so far there’s been more support for measures that can prevent COVID-19 from entering Nunavut.
Kitikmeot Inuit Association President Stanley Anablak, speaking yesterday on behalf of his organization’s board, issued a statement saying, “people need to be practising physical social distancing and not gathering together for social events such as card games.”
These officers are not officially peace officers. They are by law who changed their departments name from kugluktuk bylaw to kugluktuk peace officers. Bylaw can be hired as anyone where real peace officers need certificates, training and meet specific requirements
Most Canadian courts have ruled that they are peace officers, that has been clear in Canadian law since the early 1970s.
The fact that many are not sworn has led to a very confusing landscape, and the very poor training and oversight, particularly in Nunavut, has led to a general contempt for them, in many cases very often deserved. I would never be in policing in Nunavut, yahoos in too many communities have made it very difficult for the professional and ethical in law enforcement.
Many by-law officers are well-trained though, and there are special programs within our police colleges to turn-out by-law officers.
However, sadly,my advice for dealing with rural Nunavut by-law officers would be:
Assume that they are poorly trained, disciplined, and supervised
Assume that they are quick to violence
At all times, assume that they are threat to the safety of you and those around you
Record every word out of their mouths
and most importantly:
At all times follow their instructions. If you think they are wrong, put your video on FB of your interactions, but don’t resist them. Record and publicize every interaction with them. Public scrutiny will lead to an improvement in their services.
Think at all times of threat that they pose to you, and how to minimize that threat – first of all, but not giving them a justification to get violent.
These officers are sworn in peace officers by the RCMP, their training consists of college, military, security and working within other law enforcement agencies in canada, to quickly jump the gun and say they aren’t trained when you have not seen their resumes is pretty ignorant on your part.
To the ones that are appropriately trained – excellent and I hope they continue to seek and maintain professionalism.
That is not the case all across the territory and standards are extremely variable, as they are across the whole country for by- law officers. Just look at the trouble Vancouver got it self in a few years ago in this field for a good example.
When we have created a system in Canada where dog catchers, ‘meter maids’ and swimming pool inspectors are considered to be peace officers we then have to question the system.
Military training is of absolutely no benefit To civilian peace officer, that is why it is considered neutral in RCMP recruiting. As a former infantryman I absolutely guarantee you that you don’t want me using my training to maintain the peace, it is not appropriate.
You’re right, I don’t know the resume of all of the service providers but the required minimum standard is very low. Given that, you assume that the people you’re dealing with sre operating at the lowest standard. If we mandated an increase in minimum standards across the occupation we could have higher confidence, but as a country we haven’t done that.
My advice remains unchanged.
I completely agree with you, they should set a higher standard for the officers because small towns like this in Nunavut they aren’t just dog catchers because they get many calls that aren’t just that ranging from domestics, mental health, deaths, suicides, drunk drivers and many others, I know this because I served as an officer in Nunavut and its crazy that some people expect them to be low level security like in most places in canada, I truly do think they need to hire the right people though to actually deal with this stuff instead of just any joe blow that walks off the street
Tricky topic, but there are some valid points here, especially around the potential abuse of power by ‘peace officers’ whose qualifications and training are questionable. The best move would be for the Department of Justice to make a clear statement on the legality and constitutionality of the rules they have put in place. Though, being somewhat familiar with them, I do question their ability to think in such terms, let alone execute.
There is nothing wrong with the CMO’s messaging. It’s how one community acted on it. Complete foolishness. The CMO has done an awesome job to date dealing with covid-19. BTW Hamlet by-law officers do not enforce NU laws or orders. Think about their job title “by-law Officers” It would be the RCMP enforcing NU laws. just because they have a jacket that says “peace officer” does not make them one…..
“If no one has it in Nunavut, why are you breaking up card parties?” – So if it has managed to get here to stop it from spreading, idiot.
Nunavut and its communities need to keep away from being a Nanny State.
Treat people like children, they will act like children.
The trace will be difficult to say the least. We are worried if we have space for people — just throw a deck of cards in and it wont matter how many are in there it will be comfortable as long as we have a separate house for all the children who play outdoors until wee hours because they are not allowed in to the card players but in reality if-when it gets here God help us. There will be a lot stricter and God forbid anyone sick enough to get medivac will be going alone. And they die alone no family to hold their hand.
To Inuk – when it’s serious like Covid 19, some younger children are not understanding why they can’t gather. When adults are gathering when they shouldn’t , they are still children regardless of colour or race. Grow up!
Kugluktuq knows as a community how to look after themselves. The community is the only community that has taken “ gambling” as an issue that needs to be attended to at this time. They are the only ones who have guts to govern!
If gambling is your concern perhaps lotteries which are state run should be banned too. These folks know what they are doing and ain’t bothering anyone except nosie neighbours and wannabe police officers. Let us avoid becoming a police state.
I think the responsibility lies with the Hamlet, who made the decision.
It also seems that no person may enter a home without invitation.
Then there is also no person may enter a home for legal purposes unless the chase is clearly of urgent matter. Explain these things clearly, please.
The Council needs to educate themselves to what powers their by law division has. Incomprehensible result to an arrest about a year and a half ago and nothing ever done.
Remember to continue social distancing and washing hands.
Who gave these By-Law Officers authority to speak to the media and who in the hamlet administration vetted the content going too the media? If hamlet employees are free to speak on the details of they’re positions the supervisors and SAO are in for a major shock.
On the one hand citizens in Nunavut have become more and more complacent about the COVID-19 virus since there are as of yet no confirmed cases. Everyone should be following the Federal and Territorial recommendations and orders to keep it at bay because eventually it will find its way into Nunavut and it could have catastrophic effects. Having 40-50 people in your house for gambling, large family gatherings and parties, selling food house to house, not maintaining social distancing, kissing babies etc… is just dumb and ensures that when that first case pops up it will spread like wildfire and our elders and babies will be very hard hit and people with underlying health issues will be very hard hit. Canada just hit 2000 deaths today and unfortunately given our isolation and limited resources in health, housin and other infrastructure we could, as a territory, hit that number ourselves or even worse. Smarten up people.
On the other hand, back to the main story, some of the Hamlets have been passing bylaws at record speed -all three readings at one short meeting- without proper consultation with the public or legal counsel. Most of these bylaws could be eaten up and spat out as unconstitutional should someone want to challenge them in court.
All over the world, governments of all kinds are trying to stop the spread of Covid 19; what part of prevention do people understand?? Since when are governments that are trying to protect their citizens, told they are infringing on people’s rights?? I say the ones who are saying their rights are being infringes are the ones who are unsure, scared, downright petrified. I came home from a medical and I wore a mask when I went shopping and I noticed the fear in people’s eyes and they questioned right away if I was sick. Fear makes people act in a way that is not reasonable; behave in a way that their own rights are being infringed upon, so I ask you, are you infringing on my rights to be safe by NOT practicing safe distances, NOT speaking out when another invades your space?