TORONTO — 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 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 lockdowns and stay-at-home orders are a form of martial law, which the province does not have jurisdiction to enact.
It also wants the court to declare that restrictions on interprovincial travel violate the Charter of Rights and Freedoms, and thus compel officers to breach their oath.
The action 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, the lawyer representing the group, said 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 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 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 Toronto Police Association, which represents thousands of officers on the force, said it could not comment directly on the matter but that the service was trying to navigate the pandemic "as best they possibly can."
"We know that members of the police service are faced with an entirely new challenge: how to further public safety through the enforcement of local stay-at-home orders. We will watching this closely and hope we can have further dialogue in the future when our comments will not impact any court dealings," association president Jon Reid said in a statement.
The Hamilton and Niagara police forces said they would not comment as the matter was before the courts. The office of the Attorney General of Canada and the other police forces named in the legal challenge did not immediately provide 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.
- with files from Holly McKenzie-Sutter.
This report by The Canadian Press was first published May 4, 2021.
Paola Loriggio, The Canadian Press