Automated Affidavits to Confirm Residency

On April 16, 2021, the Province of Ontario introduced new measures under the Emergency Management and Civil Protection Act, which would allow law enforcement to stop individuals and vehicles, asking them the reasons for leaving their home.

The government believed it necessary to stop COVID-19, as part of their broader support to a complete lockdown and stay at home order to battle a third wave of the virus.

The amendment to O. Reg 294/21 stated,

(2) Schedule 1 to the Regulation is amended by adding the following section:
Requirement to provide information
2.1 (1) This section applies as of 12:01 a.m. on April 17, 2021.
(2) A police officer or other provincial offences officer may require any individual who is not in a place of residence to,
(a) provide the address of the residence at which they are currently residing; and
(b) provide their purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.
[emphasis added]

The previous text of the language in O. Reg 8/21 stated,

2. (1) A police officer or other provincial offences officer who has reasonable and probable grounds to believe that an individual has committed an offence under section 7.0.11 of the Act may require the individual to provide the officer with the individual’s correct name, date of birth and address.
(2) Every individual who is required under subsection (1) to provide a police officer or other provincial offences officer with their correct name, date of birth and address shall promptly comply.
[emphasis added]

There was immediate and widespread protest, especially with the removal of reasonable and probably cause. Not just from Ontarians, but from several police forces who indicated that this approach would erode the trust and the relationship they had with the public. These police forces indicated they would not be implementing these new powers. Many in the legal community speculated that these powers were unconstitutional, and violated s. 8 of the Charter.

The initial response from many after the April 16 order was panic, in that many Ontarians do not have information on their identification that matches their residence. In some cases this relates to transient living and lack of affordable housing, but in others- including my own – it reflects the realities of the pandemic, where people have homed together in a social bubble to provide supports during this difficult time.

The greater concern is that we know such police powers will be exerted disproportionately among low-income, racialized, and historically marginalized populations.

Facing this significant opposition, even from those that they likely assumed would welcome these new powers, the province quickly backtracked. They amended the new regulation, so that the revised order under O. Reg 298/21 states,

2.1 (1) Where a police officer or other provincial offences officer has reason to suspect that an individual may be participating in a gathering that is prohibited by clause 1 ( 1) ( c) of Schedule 4 of Ontario Regulation 82/20 (Rules for Areas in Stage 1) made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, and believes that it would be in the public interest to determine whether the individual is in compliance with that clause, the officer may require the individual to provide information for the purpose of determining whether they are in compliance with that clause.
(2) Every individual who is required under subsection (1) to provide a police officer or other provincial offences officer with information described in that subsection shall promptly comply.
[emphasis added]

Consequently, the planned court challenge of this regulation by the Canadian Civil Liberties Association was put on hold. That does not mean there will not be other challenges in the works.

Late last year, the Divisional Court upheld the province’s emergency powers under O. Reg. 82/20 of the Act in Hudson’s Bay Company ULC v. Ontario (Attorney General), dismissing the judicial review of a retailer seeking to ease retain lockdown restrictions, stating at para 73, “it is not the role of the Court on judicial review to make determinations about the efficacy or wisdom of policy choices otherwise within the scope of the [province]’s executive authority.” The conflict between this approach, and the one outlined by the Court in Vavilov, has been highlighted by Teagan Markin and Brianne Taylor here.

The immediate response on April 16 by some legal professionals and community members was to try to put in place a sworn affidavit, signed by a valid Commissioner, confirming a place of residence. This document could be carried with a person who was out of the home, to explain the lack of identification or conflicting information on identification. Noelle Sorrell, a licensed paralegal in Windor-Essex County, offered to do this for free for the public, but was quickly inundated and overwhelmed  with hundreds of requests.

Although the revised power is more circumspect, and does not explicitly refer to the “the individual’s correct name, date of birth and address,” I have personally received reports from residents in several municipalities in and around Toronto who have been asked specifically for this type of information. They were asked this information when heading for groceries, dropping off garbage, exercising (i.e. walking) on the sidewalk, and other activities that are otherwise allowed under the emergency order.

Oscar Strawczynski, a lawyer in Toronto, offered to create an automated form that would populate affidavits, which could then be sworn remotely. Others, including Bryan Crockett, a paralegal in Durham Region, and Laura Wilson-Lewis, a lawyer in Toronto, offered to help.

The result was an automated intake form powered by DocAssemble, which is available to Commissioners here. Pre-registration of Commissioners is required, which lets you track your affidavits.

The site links to local Community Legal Clinics, in the hopes that local clinics will might find this tool useful to provide a small piece of comfort to members of their community concerned about being asked for information relating to their residence.

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