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Defence lawyer says police should not be using Quebec curfew as excuse to search personal property

Sarah Vresk was heading to work at around 4 a.m. Tuesday when she was stopped near her home by Montreal police and asked to prove she had the right to be on the road during curfew.

“I got my letter out of my glove compartment and he asked for my ID. I gave him that,” said Vresk. “He then asked me what was in my bag.”

Vresk demanded to know why that mattered, and why she wasn’t free to go after showing a letter from her employer stating she works for a snow-removal contractor and needs to be on the job during curfew.

The officer questioned the validity of that letter, saying it’s just a piece of paper, and threatened to give her a ticket anyway, Vresk said. The officer accused her of delaying detainment by not co-operating and showing the bag’s contents.

Vresk finally gave into the officer’s demands, allowing him to inspect her lunch bag.

The officer then returned to his cruiser to check her credentials while his partner took over questioning. Finally, Vresk was let go without a ticket.

A police intervention should end as soon as a citizen shows proof that they’re allowed to be out during curfew hours, said Jeffrey Boro, a criminal defence lawyer in Montreal.

“It’s none of his business what’s in the bag,” said Boro. 

“He has no reasonable or probable grounds to search. He hasn’t got the power to do that and the woman has certain constitutional rights to be free of an abusive search.”

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Police in Quebec can stop and question anybody who is seen outside between the hours of 8 p.m. and 5 a.m. (Graham Hughes/The Canadian Press)

Boro said Vresk’s experience is a typical example of an officer abusing their authority by threatening further consequences for not complying with the search request.

“This type of behaviour is unacceptable,” he said. “The police are there to serve us. We’re not there to serve them.”

SPVM says it’s up to officer’s discretion

Police officers are expected to proceed with “good judgment,” according to a statement from Montreal police.

“Before imposing a sanction on an offender, they will carry out the necessary research and analyze each situation according to its context and its particularities,” the statement said.

The SPVM said it is up to citizens to prove they’re allowed to be out after curfew.

“They must also answer the police officers’ questions satisfactorily and have the documents required to confirm their situation,” said the statement.

When Quebec Public Security Minister Geneviève Guilbault outlined the curfew rules last week, she said enforcement will rely on the “judgment and discernment” of police officers who are used to making difficult calls in the application of laws and rules.

In a statement Tuesday, a spokesperson for the ministry said people are expected to prove they’re allowed to be out after curfew, but an officer may reject the explanation and issue a ticket regardless.

Some worry police have too much discretionary power

But handing this amount of discretionary power to police is worrisome to some legal experts and civil rights activists.

“Basically what you’re doing is giving police the discretion, as of a certain time of day, to stop and question people,” said Cara Zwibel, a lawyer with the Canadian Civil Liberties Association (CCLA).

If police don’t accept your documentation or explanation for being out after curfew, Zwibel said, it’s best to just accept the ticket and challenge it in court.

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A woman walks her dog after 8 p.m. in Montreal on Tuesday. Dog walking is one of the few reasons people can circulate during the curfew in Quebec. (Paul Chiasson/The Canadian Press)

Zwibel said the CCLA is collecting data on the enforcement side of public health restrictions. Canadians are invited to fill out a form on the association’s website and tell their story, so the CCLA can get a feel for what is happening out there, Zwibel said.

She would like to see police educating people first rather than just dishing out tickets. COVID-19 might spread at illegal gatherings, she said, but it doesn’t while people are travelling alone by car or with members of their household.

“When you fine people for doing things that pose no danger to public health, people really start to question why the rules are in place and whether they make any sense,” Zwibel said.

“It erodes trust and confidence in the government.”

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