We face a public health emergency, and criminalizing the marginalized can worsen the crisis

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Nova Scotia has just declared a State of Emergency. Measures taken include a ban on gatherings over five people, the ability of the police to fine individuals and businesses breaking social isolation, the ability of the police to enter property, and the seizure of vehicles at provincial parks.

It is clear that serious measures must be taken to ensure the virus isn’t spreading. The strongest public health response is necessary, and this requires collective effort and social responsibility.

However, when health issues become criminalized, historical evidence shows that vulnerable people become increasingly victimized. This outcome can actually run counter to public health aims.

A responsible public health response also requires considering the impact of these measures on racialized, homeless, and mentally ill people, as well as other marginalized groups. We must ensure that a crisis response doesn’t result in further oppression and harm to these communities.

In order to have effective public health policy people have to trust that the government is making decisions in their best interest. For communities that have long faced neglect, or worse, abuse, from authorities we must be careful that a heavy-handed response does not re-victimize and scapegoat the poorest and least powerful among us.

Communities that still bear the scars of Africville, of residential schools and centralized reservations, or of internment, may be afraid of what emergency measures mean for them.

A history of racist policing

What does it mean for Black people, for example, to have the police empowered to enforce social isolation measures? Public health officials at the press conference were careful to discourage the public from calling the police on people they may think are breaking the ban.

But given that the police have been called on a Black person reading, Black people who are already hyper-visible are far more at risk of police and social surveillance. Similarly, Asian people who are facing heightened racism are far more exposed to public fears.

The beating of Santina Rao by police in Walmart in front of her children in January, followed by the assault on a 15-year-old Black child in February, demonstrated the degree of violent police escalation on Black people, and that was before public anxiety about a pandemic.

We are now asked to trust that the police can appropriately manage a health crisis when to this point they have resisted all attempts to hold them accountable for violence against Black people.

And without the ability to gather for protest, and with no police board meetings taking place, and with a frightened public looking for order to be enforced, how will we resist if the police do single out Black people or use violence?

Advocates in the Black community have created an email address where people can document their encounters with the police. Kate MacDonald, who initiated the email, says that with less chance for eye witnesses to police activity, community accountability is more important than ever:

My concern is that police presence will increase in astronomical ways. Just because we are being pushed into navigating times of social distance doesn’t mean we still can’t hold police accountable for their actions…We need a place to gather police encounters so we can understand the scope of what is happening with all of these “fining” processes.

Street checks have been banned, but how does that look now?

Indigenous communities who only weeks ago were facing arrest for blockades in support of Wet’suwet’en are also particularly subject to the abuse of police authority. The police already surveil Indigenous activists, and Alberta tabled a bill to criminalize protest with up to six months incarceration. Will these new powers that grant entry to property be used to continue to break Indigenous land defence and resistance?

Criminalizing the marginalized

What happens to people who can’t pay the fines? Fines are a disproportionate punishment for people living in poverty. Will they face other penalties such as incarceration? In Ferguson, when the Black Lives Matter movement began, one of the causes of the uprising was the number of fines levied on Black households that led to arrest and incarceration. (Any fines collected should, at the very least, be donated to groups feeding and housing people.)

Historically, the criminalization of health issues has led to the targeting of vulnerable populations. For example, criminal penalties for non-disclosure of HIV status disproportionately impact Indigenous people, and have led to stigma around seeking treatment. A CBC news investigation found that people with mental illnesses made up the majority of police shootings in Canada. These measures may make people who have traditionally been victimized by the police less likely to turn to authorities to seek treatment or to get tested.

According to Harsha Walia, Executive Director of the BC Civil Liberties Association:

We fully support actions taken by all levels of government that prioritize public health, including measures that resource our public infrastructure for the benefit of all and protect those, such as seniors, precarious workers, Indigenous communities, and homeless people, who are most vulnerable during this pandemic.

However, we remain vigilant about the use of extraordinary government powers and emergency orders, which grant exceptional powers including state enforcement powers that can unjustifiably and unreasonably violate the civil liberties of individuals especially those who are already marginalized.

Walia raises concerns, for example, about the potential  use of existing mental health legislation to increase involuntary mental health apprehensions:

These apprehensions could increase if people, especially marginalized people and street communities, not complying with health directives become framed as mental health disorders necessitating an apprehension under the Mental Health Act.

The BC Civil Liberties Association released a statement detailing their concerns about federal emergency measures, urging that “fundamental rights must not be unreasonably or unjustifiably limited.”

Targeted enforcement

Advocates are concerned that crisis measures become normalized, and remain even once the state of emergency is lifted. Asaf Rashid, a human rights lawyer who is currently on leave while working as a union organizer in Halifax, raises concerns about the lack of clarity:

Emergency measures put in force today by the province criminalize a health issue and that’s dangerous. People are worried enough about the health issue, and this is an additional layer of stress on everyone, particularly those who have been historically targeted by police, such as Black and Indigenous people and persons of colour in general.

The emergency measures conflict with rights that are there to stop the police and state from interfering with our liberties. While the government does have the power to put reasonable limits on liberties to protect public health and safety, they cannot use that as an excuse to abuse power.

People should ask, Is this reasonable? The powers cannot overreach or be arbitrary. Giving the police powers to detain or arrest people for being out in groups of more than five people, in the mall, possibly grocery stores or anywhere that people are around in numbers due to necessity puts people in an extremely difficult situation.

How are groups of people going to be decided? Standing too close? Talking to one another? People need to survive and need to get groceries and other necessary items and shouldn’t feel afraid to do so.

Or what about a person on quarantine who does not have anyone to help them, doesn’t have access to the internet and no cell phone and needs to get food? Will they be arrested? What about a situation where a person on quarantine isn’t safe at home due to domestic violence?

It cannot be considered reasonable to allow police powers that result in people being less safe and that further endanger public safety. Due to the impossibility of policing everyone under these measures, what will likely happen is targeted enforcement, and there should be a real concern of racial profiling as COVID-19 has already been heavily racialized with people with Chinese or perceived Chinese decent or people of colour who are perceived to be from outside of the country already facing discrimination.

Health and solidarity

Social solidarity is important in this time. It is crucial that people listen to health authorities and take social distancing seriously. We must be careful, however, not to invest in policing or authoritarian responses to this crisis that, under the comforting idea of “public safety” end up further endangering the very communities who are most at risk.

OmiSoore Dryden, the James Robinson Johnston Chair in Black Canadian Studies in the faculty of medicine at Dalhousie University, specializes in the health impacts of anti-Black racism. Dryden asks us to consider what we mean by “the public” in times of crisis:

The safety of our population and individuals is important. This becomes top of mind during public health crisis like the one we are currently in, however, not everyone is included in these considerations. The work of Public Health is to prevent disease in order to support and maintain the health of communities and populations.

In the attempts to identify potential dangers to the health of populations, public health officials and governments have turned to isolating those who are sick, but also those who are perceived to be the cause of illness. Yet, it is important, especially in this time, to think about who we mean when we say “the public” — who is included and who is excluded?

Dryden asks us to think more broadly about who these health measures impact, and how we can have a community response that considers everyone:

In the past, public safety (health and safety) has targeted Indigenous people, Black people, Chinese people, Japanese people, those living in poverty, LGBTQ people, those who use drugs or sex workers. These groups of people (and more) have been seen as a danger to “the public” and as a result have been subject to greater scrutiny, surveillance, quarantine, and isolation.

If we are to be truly committed to the safety of the public in times of pandemics then, I strongly suggest we begin our assessment within marginal communities. What does self-isolation mean in Indigenous communities and rural Black communities? What does self-isolation mean if you are homeless and/or precariously employed? How are we to physically distance if we are incarcerated, or are drug users in need of safe injection sites?

By living on and in the margins, morality is used to declare that how we live our lives is respectable or improper, suitable or unsuitable. Those of us who live in these communities are also worthy of health and well-being.

Finally, she asks us to consider compassionate responses that support the health of communities rather than turning to enforcement:

By empowering the police to increase surveillance and fine individuals means that many in our communities are at greater risk of scrutiny and harm. Police discretion in Halifax has resulted in Black people being street checked six times more than white Nova Scotians. Police discretion has resulted in not releasing this data and not responding to nor meeting all of the recommendations to curb this behaviour. So how are we to now believe that police discretion in monitoring physical distancing will not negatively impact our communities even more.

For example, the single mother with five children will need to take each of her children shopping to get groceries, formula, prescriptions, perhaps a new baby thermometer. And she must be met with compassion and support, not increased surveillance and judgement that they are breaking isolation and physical distancing measures. And she certainly does not need to have the police called on her.

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