Sarah Leamon: Policing travel between regions is nowhere near as easy as it might appear to be

Anyone stopped by cops has a right to seek legal advice prior to giving any statement

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      Over a year into the pandemic, Premier John Horgan has announced new travel restrictions for the province of B.C. 

      Under these new rules, British Columbians will be required to stay within their regions at all times, with an exception for essential travel only. Police road checks will be put into place to deter nonessential travel and to issue new fines where necessary.

      The new restrictions were put into full swing as of Friday of last week.

      Although they were implemented in response to another uptick in the number of COVID-19 cases in our province, the timing of this announcement is questionable at best. If these restrictions could work to reduce the spread of the virus and were within the ambit of the provincial government all this time, why did the politicians wait until now?

      Perhaps the reluctance was—at least in part—rooted in the practicality of enforcing these restrictions.

      Policing nonessential travel between health jurisdictions will be no easy task. While the premier has been clear in stating that the order will be enforced through a roadside checkpoint program, similar to drinking and driving checkpoints, discerning who is in compliance and who is not may be easier said than done.

      The first question on many people’s mind had to do with health authority boundaries. Prior to the pandemic, the concept of a health authority boundary was not likely to be on the top of anyone’s mind. Even now, many people remain unclear about what they mean and how they are applied.

      Many health authorities spread over large geographic regions. In the case of Island Health, the entirety of Vancouver Island is included. Many other authorities are geographically complex. For example, Vancouver Coastal Health, situates Vancouver in the same health authority as Whistler, but not as Burnaby.

      At first, Horgan asked people to “stay close to home” and to “use their common sense,” but later firmed up the geographical boundaries of such regions for the purpose of enforcing restrictions. For simplicity sake, our province has been split into three provincial health zones; Vancouver Island, the Lower Mainland and Fraser Valley, and the Northern and Interior regions.

      Although this distinction has somewhat helped, it may still be difficult for police to clearly identify travellers who are—and who are not—in compliance.

      While drivers are required to state their name and address to police when asked, issues may arise where a person's stated address does not match their driver's licence address. While drivers are required to update their address with ICBC within 10 days of moving, the practical reality is that this does not always happen.

      Where a person has recently moved, or is temporarily residing at another address, police may have a difficult time figuring out where they are really coming from. This could be further complicated for those who have multiple addresses.

      Determining the reason for travel, and whether it amounts to essential travel, could make things more complicated still.

      Previously, the government has defined essential travel as travel done for work or school, or for the purpose of attending medical appointments. While this definition appears to be rather well-defined, it is important to consider whether one's word alone would be enough to satisfy police that their travel falls under one of those essential grounds.

      This leaves a large margin for error—both for essential travellers who are not believed and for nonessential travellers who are.

      If drivers are required to travel outside of their health authorities for an essential purpose, they may need to carry proof with them. Workers may need to travel with proof of employment, their work schedules, and other relevant material, while those attending doctor’s appointments may need doctor’s notes. This seems cumbersome. It also presents some pretty obvious and legitimate privacy concerns.

      These concerns are also acknowledged in the law.

      The right to remain silent is a charter-protected right in Canada, as is the right to obtain legal advice prior to providing any statements or further evidence to police in the course of an investigation. Whether a person could be compelled to provide information to police about where they are travelling—and why in the context of a roadblock—would be legally tenuous at best.

      Travel restrictions are expected to remain in effect until the end of May long weekend, and possibly even longer.