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A city ombudsman report on COVID rules in parks during the first-wave lockdown said bylaw enforcement created a "climate of unfairness"
The city’s enforcement around pandemic restrictions in Toronto parks last spring was confusing, unfair and, in at least two cases, racist, the city’s ombudsman has found.
In a report published on July 9, Toronto Ombudsman Susan Opler wrote that city hall’s communication around park rules during the first-wave lockdown was “fragmented, confusing, and in some cases, inconsistent.”
It also includes summaries of the results of two separate investigations that found bylaw officers racially profiled Black people in parks – including an incident in Centennial Park that went viral last June – which the city has never made public.
The report covers a six-week period at the height of the first-wave lockdown from April 2 to May 15. Opler makes several recommendations, including 14 “systemic” actions the city can take to improve parks enforcement, including scrapping a “zero tolerance” directive that led to confusion among city staff and park-goers alike.
“I deeply appreciate everything staff at the City of Toronto have done to keep people safe during this pandemic,” Opler said in a statement. “Their efforts have been heroic, especially early on, when circumstances and provincial directions changed almost daily. But how the city communicated the rules about park use, how it trained bylaw enforcement officers to enforce them and how it communicated ticket dispute options created a climate of unfairness that affected everyone who wanted to use Toronto parks.”
On March 23, 2020, Mayor John Tory declared a state of emergency in response to the first wave of the COVID-19 pandemic. Two days later, city officials announced park amenities would be shut down and signs would go up indicating that playgrounds and other areas were off limits.
The city then issued emergency orders on April 2 mandating physical distancing in parks and bylaw inspectors began issuing tickets for either $750 or $1,000 – plus $130 in charges and fees – to rule breakers.
The public was told parks were open, but anyone getting fresh air during the first lockdown was advised to keep moving when in a park, rather than sit on benches or at picnic tables, for example.
But not everyone got the message, Opler writes in the results of her enquiry into parks enforcement. Investigators heard directly from 10 people who felt they unfairly received tickets in April for violating park rules.
“Some of them were retired, recently laid-off, or single parents. They believed the fine of $880 was high, undeserved, and/or disproportionate to the offence they were accused of,” the report states, adding most felt they were being punished for not understanding the rules rather than flouting them.
“All the complainants who spoke with us said that they feared returning to parks after they had gotten tickets, out of concern that they would be ticketed again for other rules they did not know about,” the report adds.
City officials blamed the province’s frequently changing rules, which also included a ban on recreational amenities in parks that covered benches.
However, sitting on benches was not officially prohibited under Toronto’s emergency orders and the ombudsman report notes not all areas were clearly marked, yellow caution tape had blown away in some cases and signage in general did not indicate clearly enough what was out of bounds.
“Park benches were a particular source of confusion,” the report states. “They were on the province’s list of closed amenities, but never on the city’s. The city knew people were confused about them, yet its messaging about park benches was inconsistent and unclear.”
Communications did not draw a clear line between public health and legal advice, the report adds: “Public health advice is important, but it is not the same as legal rules that put people in jeopardy of prosecution. Fairness demands that this difference be made clear in public communications.”
As more information about how COVID-19 transmits became known, the province eventually deemed park benches safe to sit on during later reopening periods.
Opler acknowledges bylaw officers had to react to constantly changing rules under difficult circumstances, and there was particular confusion among Municipal Licensing & Standards (MLS) staff over the city’s stated “zero tolerance” approach to enforcement. Officers felt the directive limited their ability use discretion and judgment, and some did not feel comfortable raising concerns with superiors for fear of reprisal, the report notes.
“We also found that bylaw enforcement officers have not received adequate training on how to exercise judgment and discretion in a fair and equitable way, raising a concern that MLS’s enforcement activities may be disproportionately impacting vulnerable populations,” the report says.
Further, the report warns the zero-tolerance directive had a compounding effect on unfairness when parks officers encountered Black people in two instances.
Two independent investigations “found that two different bylaw enforcement officers enforcing COVID-19 rules in city parks had discriminated against Black people,” the report states.
Opler says two independent investigations found bylaw enforcement officers discriminated against racialized park users. One bylaw officer allegedly told a racialized woman who received a ticket for using a picnic table, “You people need to learn,” the report states.
The ombudsman report includes a summary of the results of a third-party investigation into allegations of racial profiling in Centennial Park last summer.
On June 17, 2020, cellphone video footage of two Black women confronting a bylaw officer went viral. Deborah Ampong and Eva Amo-Mensah said they had hopped a fence in the park when a bylaw officer stopped them, asked for ID and said he could shoot them for trespassing. They also said he did not stop any non-racialized people in the park who had also jumped the fence.
The city retained an independent investigator to look into the incident. In a report dated October 14, the investigator found the bylaw officer “had harassed the complainants on the basis of race when he told them he could shoot them if the fenced stadium grounds were his private property,” the ombudsman states.
The Centennial Park investigator found the officer “improperly used differential enforcement with the two Black women by contrast to non-Black young adults who had also been using the closed area, thereby discriminating against the women of the basis of race,” the ombudsman notes.
The third-party investigator concluded the officer breached the Ontario Human Rights Code and the city’s Human Rights and Anti-Harassment/Discrimination Policy.
Upon reviewing the Centennial Park investigation, the ombudsman found it was fair and thorough, but was concerned that the city did not publicly release the findings and recommendations, which included improving officer hiring and training.
The ombudsman also looked into an April 8 incident in High Park in which a person who identified as Black said a bylaw officer racially profiled him while he was walking with his white partner.
The city’s Human Rights Office opened an investigation, which determined the officer “singled the complainant out because of his race, rather than based on reasonable suspicion that he was in violation of COVID-19 rules,” according to Opler’s report.
“The investigation further found that the officer had then racially profiled and discriminated against the complainant on the basis of race by following him for 25 minutes as he was leaving the park, and by escalating the matter to the police,” the ombudsman reports states.
The city later withdrew the charge and did not make the High Park investigation public. The officer in question said he was following the city’s “zero tolerance” policy, the report notes.
In a letter to the ombudsman, city manager Chris Murray called the Centennial Park and High Park incidents “unacceptable and troubling” and stated the city is taking steps to implement recommendations related to the incidents. Murray added the city cannot comment further on matters that are before the courts.
During the six-week period from April 2 to May 15, the city handed out at least 280 tickets for infractions in Toronto parks. Officers also gave 15,821 “verbal cautions” to people across Toronto.
The high number of “verbal caution” backs up the city’s messaging that officers were taking an education-first approach to enforcement, but Opler notes those numbers on their own don’t indicate whether ticketing was fair.
City data shows the number of tickets given out spiked after the zero tolerance directive was issued. On April 11 and 12, officers issued issued 35 and 38 tickets, respectively, for COVID violations in parks – the only days in the six-week period the enquiry covered during which more than 18 tickets per day were issued. These two days account for 26 per cent of all tickets handed out in that 44-day period.
“This clear spike in tickets is notable in the context of MLS leadership’s messaging to staff on April 11, 2020, to take a ‘zero tolerance’ approach to people using parks and to issue tickets to ‘drive the message home,'” Opler’s report states.
Additionally, the tickets contained outdated information that stated people had 15 days to either pay the ticket or dispute it – even though the province had suspended the 15-day period under its own emergency orders. On top of that, all courts, public counters, emails and call centres related to disputing a ticket were closed.
“This was unfair, even more so considering the high price of the tickets and the economic constraints of the pandemic,” the report says.
“We also noted that some commentators have questioned whether fines are an effective mechanism for deterring behaviour and controlling the spread of COVID-19, and that there is evidence which suggests that enforcement fines during the COVID-19 pandemic will likely be felt disproportionately by poor, marginalized and unhoused people.”
The report includes several immediate recommendations and 14 longer-term or “systemic” recommendations to improve enforcement.
Opler recommends the city immediately explain to all MLS staff that “zero tolerance” is unfair and unclear messaging and develop an anti-racism strategy to eliminate racial profiling from bylaw enforcement. That includes training and a policy on how to use judgment and discretion in a fair and equitable way. She also says the city should explore collecting race-based data.
The report further recommends the city immediately make public the reports and recommendations stemming from the racial profiling incidents in April and June.
The city told the ombudsman’s office that it accepts all the recommendations and plans to implement them.
Asked for comment, city spokesperson Brad Ross said in a statement: “The city thanks the ombudsman for her report and, as noted in the city manager’s letter, accepts the recommendations of the ombudsman.
“The challenges and rapid pace of change the public, and the public service, faced in those first few months of the pandemic, especially on the need to save lives and protect the health-care system, cannot be overstated enough,” Ross added. “The goal of the public service, always, is to ensure clarity and fairness in all that it does for the people of Toronto.”