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Group of police officers files constitutional challenge over Ontario pandemic rules

Last Updated May 4, 2021 at 3:25 pm EDT

Police officers ride their horses past a mural on Earth Day during the COVID-19 pandemic in Toronto on Thursday, April 22, 2021. THE CANADIAN PRESS/Nathan Denette THE CANADIAN PRESS/Nathan Denette

A group of active and retired police officers from several forces has launched a legal challenge over Ontario’s pandemic orders, alleging that enforcing the rules requires officers to breach their oath to uphold the constitution.

Notice of the constitutional challenge was filed late last month on behalf of 19 officers, including two Toronto officers currently facing an internal police investigation for allegedly breaching the restrictions on social gatherings.

The civil action targets Ontario Premier Doug Ford, Ontario’s attorney general, five police chiefs as well as federal officials.

The claim, which has not been tested in court, seeks a number of declarations, including that religious services and protests are exempt from rules on gatherings, and that restrictions on interprovincial travel violate the Charter of Rights and Freedoms.

It also seeks an order that police supervisors, politicians and public health officials stop interfering with officers’ discretion in applying and enforcing the law.

Rocco Galati, lawyer representing the group, says he believes the action is the first of its kind in Canada.

“To my knowledge this is the first time that police officers… have actually gone to court against the legislative and executive branch of the government, saying that the laws … that they are being asked and are under a duty to enforce in fact violate not only their oath, and their duty, and their office, but the constitution,” he said in a recent news conference.

Galati said the officers – 15 of them active and four retired – want the court to clarify their role in applying the rules, which he argues are “too vague and broad and aren’t clear enough to enforce uniformly and fairly.”

He alleged officers who speak out against the rules are “ostracized.”

York Regional Police Const. Christopher Vandenbos, who is one of the plaintiffs, said the obligation to enforce the rules has created a rift in police ranks.

“The divide that we’re seeing is very visible,” he said during the news conference.

A spokesman for Ontario’s Ministry of the Attorney General said the province was served with the notice of application in the case on April 29.

“Ontario’s position is that the application is entirely without merit and it is asking the court to summarily dismiss it,” Brian Gray said in an emailed statement.

Toronto police spokeswoman Allison Sparkes confirmed the force was aware of the pending legal proceedings.

“The Toronto Police Service’s position is that the provincial emergency legislation is lawful. The service expects its officers to carry out their lawful duties and enforce the law,” she said in a statement.

The office of the Attorney General of Canada and the other police forces named in the legal challenge did not immediately respond to request for comment.

Last month, the Toronto Police Service said it was investigating after a video posted online appeared to show two of its off-duty officers violating Ontario’s stay-at-home order.

The video relates to a public gathering at a church in Aylmer, Ont., and shows a confrontation between some in attendance and local police.

Aylmer’s police chief later confirmed two Toronto off-duty officers were charged under the Reopening Ontario Act in connection with the incident.

In mid-April, Ontario reversed course on sweeping police powers just one day after Premier Ford announced the measures that triggered an intense backlash.

Solicitor General Sylvia Jones said officers wouldn’t have the right to stop pedestrians at will or vehicles to ask why they are out or request their home address.

Instead, Jones says police will only be able to stop people who they have reason to believe are participating in an “organized public event or social gathering.”

The current stay-at-home order is in place until at least May 20.

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