Open this photo in gallery People walking and running along the Martin Goodman Trail as it passes through Sir Casimir Gzowski Park in Toronto, on March 17, 2020. Fred Lum/The Globe and Mail

Toronto’s decision to empower police and bylaw officers to determine whether people are lingering inappropriately on park seating, as part of its pandemic response, is raising concerns among civil libertarians and public-space advocates.

The enforcement power flows from a provincial emergency order at the end of March restricting the use of parks, an attempt to reduce the chance of physical proximity in public green spaces.

However, the specifics of what the new rules meant with regards to sitting in Toronto parks were not clear until a city press release earlier this week, which said tickets had been issued on the weekend for “lingering on [park] chairs and benches.”

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“Individuals who need to physically rest while out on [a] walk are permitted to use benches to recover,” the release specified, “however lingering and use of benches beyond necessary resting purposes is prohibited.”

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City spokeswoman Tammy Robbinson explained Wednesday that the offence is not sitting too long. The offence is using a bench at all, which under the provincial order is subject to a set fine of $750. But she added that officers in Toronto are being told to use their judgment, to allow people brief respite but not longer stops that the city worries could turn benches into gathering places.

The line differentiating resting from lingering is not spelled out in law.

“It is a big constitutional problem when bylaw and police officers start making up the law as they go along,” warned Michael Bryant, executive director of the Canadian Civil Liberties Association (CCLA) and a former attorney-general of Ontario.

“The test for a constitutional law under every circumstance, including emergency, is that it has to be prescribed by law, necessary and proportionate. And in this case it seems to be none of the above.”

In a briefing Tuesday, Toronto Mayor John Tory said that he has weighed the impact of all pandemic-related restrictions on city residents against the need to protect people.

“While we’re trying all the time to make sure that we stay on the right side of that line, in favour of preserving and protecting people’s rights, we also have an obligation to protect their health and to keep people alive,” he said. “Those who are not satisfied we’ve done that right can seek redress in the courts.”

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Mr. Bryant said that the CCLA is monitoring and raising concerns about a number of pandemic-related measures implemented recently – the organization has created an online portal where people can share their experiences – but that there had been no decision to challenge any in court.

An advocate for safe mobility in cities framed the issue of how people are allowed to use public parks as another element of the continuing debate about whether to close sections of roads so that pedestrians can spread out and walk more safely.

While cities such as Vancouver, Winnipeg, Calgary and Ottawa have signaled a willingness to shut some roads to vehicular traffic, Toronto has for weeks resisted such calls. The city’s Medical Officer of Health has said she fears this could encourage people to congregate.

But Graham Larkin, executive director of Vision Zero Canada, which advocates for safer roads, says the indecision about opening up some streets to pedestrians leaves people without the space they need.

“We’re not actually providing people with the space and we’re policing the inadequate space that’s provided,” he said.

“If the problem is people are touching benches, cordon them off. If the problem is there’s too little seating to go around, install more.”

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Advocates for the homeless are particularly concerned that this vulnerable population, with fewer places to go now that libraries and community centres are closed, will be targeted for using benches in parks.

Mary-Anne Bédard, Toronto’s general manager of shelter, housing and support, said she expected homeless people to be treated the same as anyone else.

“If you or I were sitting on a park bench and were asked to move on, I would anticipate that that would be the same treatment that people experiencing homelessness would have,” she said.

With a report from Jeff Gray

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