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Questioning the park ban – An interview with lawyer Asaf Rashid

Carters Beach. Photo https://hikesilike.wordpress.com/

KJIPUKTUK (Halifax) – Of course we all should follow any orders to prevent the virus from spreading arising out of medical evidence, says Halifax lawyer Asaf Rashid. But it’s equally important that we’re vigilant about state overreach, like when we are no longer allowed in public spaces such as beaches, parks and trails.

Rashid, a lawyer on temporary leave while working as a union organizer in Halifax, wrote about this in COVID-19 Provincial and municipal park ban in Nova Scotia unjustifiably treads on liberty rights, posted  on his website. I spoke with him early last week. 

You argue that the ministerial decision to close parks and trails is not consistent with the order issued by Chief Medical Officer Dr. Strang. Can you elaborate on this? 

The order under the Health Protection Act by Dr. Strang requires that we maintain a physical distance of two meters, that people don’t gather in groups larger than 5, and that certain people have to self-isolate. Those are all very specific orders by the chief medical officer and they’re based on medical evidence. 

But the question to ask about the ban on visiting parks is, is it actually something that is required under Dr. Strang’s order? Because the ban on parks is not in Dr. Strang’s order. It is based on a ministerial order issued by the province under the Emergency Management Act. And that ministerial directive goes beyond Dr, Strang’s order.      

After all, let’s say there are two people maintaining their physical distance. According to Dr. Strang that’s ok when you are on the sidewalk. So why is it problematic in a park? It doesn’t make sense. Closing parks goes too far, and it infringes on the inherent right to be in public spaces. To limit access to public spaces when it is beyond what is required is something that should concern everyone. 

With summer around the corner, what about the fear of crowded beaches, and so on?

That raises an important point about the timing of the ministerial order. The state of emergency was declared on March 22 and the ban came into effect on the same day, though the order for the ban was written on March 27. 

Police were not even being directed to enforce physical distancing and group sizes anywhere before March 27.  There is no evidence that there was any need to suddenly ban entry into public parks.

And then we have to ask, was there a community spread that happened in parks or beaches or anything like that? Again, there is no evidence for that whatsoever. The park rule was implemented before there was any evidence of its necessity.

People defending the ban counter that exceptional times require exceptional measures. 

There are already exceptional restrictions in place at this time. But the state isn’t justified in going as far as possible. These liberties matter. Parks are really important for people, the need for people to visit public spaces matters. 

Think about people who live in apartments, people who are in lower income settings with children and who don’t have large backyards. Where are their kids going to go to play? For those reasons predominantly people who don’t have the privilege of having their own outdoor space are affected. 

There is also the issue of mental health. Think about the impact isolation is having on people who are already vulnerable with certain mental health conditions. Recognize how important it is to be able to just be outside and catch some fresh air.

What about the high fines people face for being in a park or on a trail?

These fines are a huge problem. Poor and working class people, and especially also racialized individuals, have always disproportionately been targeted by the police. There is no reason to believe this is different now. Among them, there are those who simply don’t have the means to pay these fines. This is particularly damaging for them. That is a very class based issue that people should recognize. 

Any final thoughts?

It’s really important that we are able to access our public spaces to the degree that we can, given the circumstances, and that we are not limited more than is absolutely required. 

If you think about it, it is very well possible that there’s going to be another emergency next year or the year after. How will the government react in those circumstances if people aren’t vigilant now? If we don’t make sure to protect our fundamental rights and liberties now, then it will be easier for the state to overreach again later. So it is important how people react right now, not only for the present, but for the sake of our future as well.

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8 Comments

  1. I would vote for Asaf if he ran for any public office. This government has done almost everything wrong. Most important is the failure to even determine where those with Covid-19 live. This is #1 an essential guide to getting it under control and #2 essential information for those who wish to avoid it. This is like attempting to put out house fires if none of the addresses are known.

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    1. That’s not correct. They do know where people with covid live, they are just not releasing it to the greater provide, just those who would be effective. This is to help prevent discrimination of communities, especially with Canada and the provinces checkered past on discriminating individuals and groups that are of colour, different religious background and low income.

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  2. And of course people proved they couldn’t be trusted after the two beaches were over run by visitors who couldn’t have maintained the 2 metres separation due to the density of people present. The government had no choice but to close the parks to prevent this happening. If people were responsible and could be trusted to follow the order, then the parks would not have to be closed.

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  3. This just shows how we ate ruled by government. ..they feel they do not have to justify what they do…this needs to stop

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  4. I’m the first to agree that access to nature is important for mental health. Before the closures, I regularly walked in the parks and trails. However, I must speak to the point that because there is no evidence of community spread that happened from parks or beaches before they were closed on March 23rd, this makes the decision that they be closed an unnecessary action. On March 21st, after Strang had said it was OK to “take your kids to the park”, the problem was that too many people went to the same parks: Crystal Crescent Beach, Point Pleasant Park, Lawrencetown. We can argue about whether people socially distanced themselves correctly there, but on trails leading to and from parking lots, social distancing would be nearly impossible, especially on the trails leading further into Crystal Crescent and Lawrencetown beaches.

    Prior to these dates, Nova Scotians who had contracted the virus were all expatriated travelers. It wasn’t until March 30th, that we got reports of the first case of community spread in Nova Scotia. With this in mind, isn’t it possible that the closure of the parks has helped to slow the spread of the virus? Maybe we shouldn’t be so critical of a decision that was made in the early stages of a state of emergency. Perhaps this was exactly the right thing to do at the time, considering all that was happening.

    Now that we seem to be doing a fairly good job at flattening the curve, maybe it is time to gently, and with patience, pose the following questions: How do we move forward from here? Do we now have the time and resources for an evaluation of our parks and trails to determine which can be safely open to visitors? Which ones have enough open space leading into and out of the area that will allow people to maintain physical distancing while also enjoying nature? Perhaps this could be a next step for our provincial government to consider.

    Please, let’s all remember to have more empathy for the human beings who are in the position of making monumental decisions for the whole province and be kind in our approach when raising suggestions for how to move forward in these uncharted times.

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  5. A 6 foot social distance walk at Walmart, Superstore, Kent’s is in a confined environment. At least at the parks you still can maintain a good distance from each other.
    Try that at a store where the volume of people becomes overwhelming.
    Not that my opinion means anything but at least I can vote my thoughts on the lawyers comments.

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  6. Here’s the problem as some replied. People couldn’t be trusted to maintain distance at all. I passed the huge lineup of cars and jam packed paths with people in such density you couldn’t get by while walking. Out near spryfield. You have to have closures when idiots ruin it for everyone refusing to be safe.

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