Are Members of the Same Household Allowed to Go Hiking During Covid19?
The Order Banning Activities at Various Recreational Places Is Unprecedented. Whether Charges Laid For Violating the Order Will Be Upheld In Court Is Currently Unknown. The Covid19 Crisis Is An Unprecedented Health Concern Giving Rise to Unprecedented Law.
Similar Questions About Recreation During Covid19 Include:
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- During Covid19, If a Person Is Alone, Is It Okay to Shoot Some Hoops at a Park?
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A Helpful Guide on How to Determine What Outdoor Activities Are Currently Permitted and Whether to Fight a Charge of Failure to Obey a Public Order Banning Use of Various Recreational Amenities
On March 28 2020, the Government of Ontario, per O. Reg. 50/20 to the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 declared a public emergency throughout the Province of Ontario. Subsequently, on March 30 2020, pursuant to the declared emergency and powers provided per O. Reg. 104/20 an Order was issued closing various outdoor recreational amenities and directing the public to refrain from entering upon or using such outdoor recreational amenities. The Order defined outdoor amenities as:
1. (1) For the purposes of this Schedule,
“outdoor recreational amenities” means the following:
1. All outdoor playgrounds, play structures and equipment.
2. All outdoor sports facilities and multi-use fields, including,
i. baseball diamonds,
ii. soccer fields,
iii. frisbee golf locations,
iv. tennis, platform tennis, table tennis and pickleball courts,
v. basketball courts,
vi. BMX parks, and
vii. skate parks.
3. All off-leash dog areas.
4. All portions of park and recreational areas containing outdoor fitness equipment.
5. All outdoor allotment gardens and community gardens.
6. All outdoor picnic sites, benches and shelters in park and recreational areas.
With the above amenities thereby defined the Order subsequently states the conditions and directives applicable to the closures by stating the following:
(2) Outdoor recreational amenities that are intended for use by more than one family are closed, regardless of whether they are publicly or privately owned and regardless of whether they are attached to a park system.
(3) No person shall enter or use an outdoor recreational amenity described in subsection (2) except for a maintenance, safety, law enforcement or other similar purpose.
(4) For greater certainty, nothing in this Order precludes individuals from walking through or using portions of park and recreational areas that are not otherwise closed and that do not contain an outdoor recreational amenity described in subsection (2).
The set fines for failure to disobeying the Order are $750 (plus the victim surcharge as applicable to fines prosecuted per the Provincial Offences Act, R.S.O. 1990, c. P.33 including traffic tickets, among other things.
If and when a charge is laid, there may be some difficulty for a Prosecutor to prove some cases. Furthermore, some aspects of the Order may be challenged as violations of the Charter of Rights and Freedoms via submissions that the Order violates the section 2(c) right to freedom of peaceful assembly and therefore any charges should be invalid; however, a Prosecutor would likely counterargue that section 1 of the Charter applies and that the Order, while perhaps violating section 2(c), was demonstrably justified in consideration of the Covid19 pandemic. It will be interesting to see whether the courts agree with a defence position and will quash these charges or will allow the prosecutions to go forth. Of course, where the Order, and thus the charges stemming from, as well as the Covid19 Crisis, is all unprecedented, and therefore the law is currently without precedent case decisions for reference and guidance, the answer to these questions will only become known when the courts reopen and these matters are heard and ruled upon.
The government mandates to stay at home including various orders such as the Order to refrain from entering upon or using recreational parks, among other places, is upsetting to many who are finding a houseboard lifestyle difficult. Many persons are struggling with a desire to enjoy the outdoors, especially with the arrival of springtime after a long winter. Unfortunately, with the social distancing mandate intended to stop the spread of the coronavirus, the Order barring use of recreational places is being enforced with charges being laid. Furthermore, without judicial precedent law, the legal validity of these charges is currently unknown. Accordingly, it seems that only time will tell.