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Executive Summaries Apr 29, 2020

COVID-19: Your Defences Against a Statement of Offence

The various municipal and provincial police forces are currently issuing certain statements of offence to businesses in their jurisdictions that do not comply with ministerial orders and decrees on priority services and activities, or to citizens who do not comply with prohibitions on public gatherings or travelling restrictions between regions.

Although COVID-19 health emergency gives the government special powers, there are defences available to challenge a statement of offence. This article will inform you of the time limits to file a not guilty plea to these statements of offence and will inform you of some possible defences.

It should be noted that it was the declaration of a health emergency on Québec territory under section 118 of the Public Health Act (the "PHA") that gave the government specific powers, including the power to order the closure of any place of gathering, or to order any other measure necessary to protect the health of the population. A state of public health emergency is valid for a period of 10 days and may be renewed for further 10-day periods. In this case, the state of public health emergency has been declared and renewed since March 13th.

The Minister of Health and Social Services (the "Minister") then exercised various powers under the PHA.

In order to govern priority services and activities, Order in Council 223-2020 of March 24, 2020 ordered that all activities carried on in work environments be suspended, except as regards to workplaces providing priority services and except to allow for the minimum operations required to ensure the resumption of activities of enterprises operating in non-priority services, excluding commercial enterprises. The Order in Council provides that the suspension does not prevent telework or e-commerce. At the time of writing this text, the list of priority activities and services has been modified more than ten times by ministerial order since March 24th.

As for the ban on gatherings, the initial declaration of a state of health emergency in Decree number 177-2020 of 13 March 2020 began by banning indoor gatherings of more than 250 people. Subsequently, Ministerial Order 2020-004 of 15 March 2020 ordered the suspension of several cultural activities and the reduction in accommodation capacity of certain venues such as restaurant dining rooms. On March 20, 2020, decree number 222-2020, renewing the state of health emergency, finally ordered the banning of all indoor and outdoor gatherings subject to certain targeted exceptions.

Restriction of travelling between certain regions was also imposed by various ministerial orders.

A Fine Up to $6,000

The penalty for contravention of the various orders and ministerial orders discussed above is provided for in section 139 of the PSA. This section provides that it is an offence punishable by a fine of $1,000 to $6,000 for anyone who, in the course of the enforcement of a health emergency, impedes or hinders the Minister, the National Public Health Director, a Public Health Director or a person authorized to act on their behalf, refuses to obey an order that one of them is entitled to give, refuses to give access to or communicate information or a document that one of them is entitled to require, or conceals or destroys a document or any other things relevant to the exercise of their functions.

For the moment, what is reported in the newspapers are fines of $1000 plus applicable fees, which is the minimum. It should be noted, however, that section 142 of the PSA provides that in the event of a repeat offence, the minimums and maximums are doubled. 

Of course, you may have defences against such statements of offence. In such a case, you will have to enter a plea of not guilty. Fear not, the Ministerial Order of March 23, 2020, number 2020-009, suspended the time limit to file a pleading after a statement of offence has been served. This time limit will start running again when the state of health emergency is lifted, or earlier if this suspension is cancelled by ministerial order. The applicable time limit is 30 days under article 160 of the Code of Criminal Procedure. 

What Defence Could Be Raised?

Different defences will be possible to such statements of offence. For example, a company that has been confirmed by the Ministry of Economy and Innovation as being able to continue its activities deemed to be a priority, and that is nevertheless issued with a statement of offence by a municipal police officer who considers that a certain part of its activities is not a priority, could probably invoke the defence of error of law caused by a person in authority. 

A defence of necessity could conceivably be raised by a single parent who was issued a ticket for prohibited gathering because he asked a family member, not residing in his home, to come and watch his child at home while he went to the grocery store to do essential shopping.

A due diligence defence will surely be available in many circumstances if it can be shown that a reasonable person, in the same circumstances, would have acted in the same way in attempting to comply with the restrictions.[1]

Beyond these offences related to the COVID-19, many other penal offences can be issued by municipalities, either by their police force or even by municipal inspectors, for example, in matters of urban planning, environment, nuisance, disturbance of the public peace, etc. The suspension of the time limit for transmitting not guilty plea also applies to these offences, and the same defences may apply while many others are possible. Our Penal Law team can help you defend yourself against such offences. Should you have any questions, please do not hesitate to contact one of our Penal Law experts:

[1] This section does not address the possibility that ministerial orders and decrees may be set aside following a habeas corpus application filed in the Superior Court on Monday, April 20, 2020. Obviously, additional defences would be available if the ministerial orders in council in support of the statements of offence were quashed.

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