Yes, We’re in an Emergency and Yes, We Still Have a Social Contract

We’re in the midst of a medical emergency — and we’re in the midst of a legal emergency. (I almost wrote “middle of” in the preceding sentence, being too optimistic by far.) We are experiencing a true medical pandemic in the 2019 novel coronavirus crisis, affecting over 150 countries, including, of course, Canada. And we are subject to emergency declarations, giving governments unusual powers, at the provincial, territorial and local levels in Canada. Even as we accept that these responses, and will accept more stringent ones in the future, are necessary, we need to remember that we still have a social contract with governments that impose obligations on both government and the populace.

A few reminders and a bit of background first. I have to keep reminding myself that we haven’t been in our “keep to home with a few exceptions” state for very long; yet it seems a very long time because so much has happened and has happened quickly. There is a cognitive dissonance between the enormity of events and our sense of time.

The provinces closed schools around mid-March, extending March breaks, as in Ontario (see the March 12th Order in Council closing Ontario schools until April 6th, now extending that until May 4th), among other provinces, or cancelling the school year, as in Alberta (see here), among other provinces. (Also see here as of March 17th.)

Other provincial and municipal announcements prohibited gatherings over a certain size; certain types of businesses, such as gyms, coffee shops, restaurants, except for take-out or delivery, department stores, as well as libraries, bookstores, churches and other places where people gather, closed, initially in some cases voluntarily and subsequently by government order; professional service colleges recommended their members, such as dentists and optometrists, provide urgent services only. Doctors cancelled appointments or offered them by telephone. Hospitals cancelled non-urgent surgeries. Park facilities or amenities, such as playgrounds, have been closed. Grocery stores have instituted measures to enhance physical distancing among customers and to protect their employees. Transit systems have posted guidelines about how people should sit to meet physical distancing requirements. Where feasible, businesses and other operations that can do so, even if they have closed their physical premises, have provided online shopping, with physical distancing delivery. And on and on.

At the federal level, the government has provided a financial response to the crisis, by changing rules for support programs, supplementing wages and providing economic stimulus, among other measures (see here and here, for example). It has also closed Canada’s borders to non-citizens (see here, initially, when US citizens were exempted, and here when Canada and US agreed to close mutual border) and required returning travellers to enter mandatory quarantine under the Quarantine Act or exercise self-isolation for 14 days.

All these and many other actions or changes in conduct are consistent with or intended to promote the social or physical distancing governments have strongly encouraged people to practice during this period, with stronger enforcement measures now being applied or considered. (For various stories over a two or two and a half week period, see here and here.) However, a surprisingly amount of regular business is continuing in person under the guise of being “essential” (see the list of Ontario’s essential businesses, for example, here and below).

Canadians are not yet experiencing the lockdowns some countries, such as China (in Wuhan), Italy, Spain and others, have desperately imposed on their residents. However, governments have primarily relied on Canadians voluntarily following social distancing measures. And people who are vulnerable for health or age reasons are in many cases not leaving their homes at all; others are going out only for grocery shopping or medications or for a walk, in most cases respecting social distancing while doing so. Inevitably, there are those who do not respect the guidelines for whatever reason, putting not only themselves, but others, at risk (see, for example, people in Toronto parks this past Sunday did not respect social distancing and tore down tapes enclosing closed playgrounds).

And so this takes us to the emergency declarations across Canada. All provinces and territories have now declared public health or provincial emergencies and some cities have also declared emergencies, in order to take quick action within their jurisdiction when needed, rather than go through the usual process (see here for the example of bypassing normal process in Vancouver). There is a difference between public health emergencies and “state of emergencies”, which have been called for significant weather events or events such as Alberta’s wildfires (see a good summary in iPolitics here). Rather than reinvent the wheel, I am borrowing McCarthy Tétrault’s excellent COVID-19: Emergency Measures Tracker, which lists all emergency (and related, even if not emergency) measures across Canada from March 13th to March 30th to show the extent of the measures, as well as in what way they are currently limited.

In some cases, provinces and municipalities will levy fines for failing to observe the rules. For example, Vancouver established fines for businesses (up to $50,000) and individuals for not observing social distance rules (up to $1,000), although they have not actually issued tickets. In Halifax, police ticketed a woman who breached the prohibition under the Nova Scotia Emergency Measures Act against walking in closed parks; the fine is nearly $700 and police seized her vehicle parked “in the area of the park”. [UPDATE: Wednesday morning April 1st, Ontario announced provincial offences officers can require people to provide their “correct name, date of birth and address” in pursuit of effective enforcement of the orders under the EMCPA, subject to fines (O.Reg. 114/20 under paragraphs 7.0.2(4) 13 and 14).]

I limit my more detailed analysis to Ontario’s declaration of emergency: the powers under the legislation, as well as its limitations and protections, and how it has been employed. I close with a consideration of how important it is that even in times of crisis, governments remember they are in a social contract with citizens.

The Ontario government invoked a province-wide emergency under the Emergency Management and Civil Protection Act (EMCPA) on March 17, 2020 (see Order in Council 518/2020 or Regulation 50/20) under the EMCPA and has continued to issue orders under the legislation since. The emergency declaration was to expire on March 31st, but has now been extended two additional weeks.

The EMCPA defines “emergency” as follows: “a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise”.

Section 7.0.1 of the EMCPA allows for the declaration and sets out the conditions which must apply:

7.0.1 (1) Subject to subsection (3), the Lieutenant Governor in Council or the Premier, if in the Premier’s opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario.

(2) An order of the Premier that declares an emergency is terminated after 72 hours unless the order is confirmed by order of the Lieutenant Governor in Council before it terminates.

(3) An order declaring that an emergency exists throughout Ontario or any part of it may be made under this section if, in the opinion of the Lieutenant Governor in Council or the Premier, as the case may be, the following criteria are satisfied:

1. There is an emergency that requires immediate action to prevent, reduce or mitigate a danger of major proportions that could result in serious harm to persons or substantial damage to property.

2. One of the following circumstances exists:

i. The resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay.

ii. The resources referred to in subparagraph i may be insufficiently effective to address the emergency.

iii. It is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph i can be relied upon.

In announcing the declaration, Premier Doug Ford referred to “a danger of major proportions”, COVID-19 (pursuant to paragraph 7.0.1(3) 1). The orders under the declaration were approved by the Lieutenant Governor in Council (see subsection 7.0.1(1)), which appears to refer to the declaration, not individual orders under the declaration, although one may see the various elements as components of the declaration). Furthermore, the government stated it needed to act quickly at a systemic level to address the crisis (subparagraph 7.0.1(3) 2 (i)). This allows the government to bypass normal processes for decision-making and approval.

Note that Order in Council 518/2020 simply states as follows:

On the recommendation of the undersigned, the Lieutenant Governor of Ontario, by and with the advice and concurrence of the Executive Council of Ontario, orders that:

Declaration of Emergency under the Emergency Management and Civil Protection Act

WHEREAS the outbreak of a communicable disease namely COVID-19 coronavirus disease constitutes a danger of major proportions that could result in serious harm to persons;

AND WHEREAS the criteria set out in subsection 7.0.1(3) of the Emergency Management and Civil Protection Act, R.S.O. 1990, chapter E.9 (the “Act”) have been satisfied;

NOW THEREFORE, an emergency is hereby declared pursuant to section 7.0.1 of the Act in the whole of the Province of Ontario.

Approved and Ordered: March 17, 2020, 7:30am

Premier and President of the Council

Approved and Ordered: March 17, 2020

The EMCPA grants the Ontario government broad powers to act unilaterally in regard to 13 specified purposes or actions, plus a general section allowing “such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency” (subsection 7.0.1(4)). It is important to appreciate the breadth and varied nature of these areas in which government may declare orders without usual process:

1. Implementing any emergency plans formulated under section 3 [municipal emergency plans], 6 [emergency plans of provincial government bodies], 8 [cabinet plans relating to nuclear emergencies] or 8.1 [cabinet plans for other types of emergencies].

2. Regulating or prohibiting travel or movement to, from or within any specified area.

3. Evacuating individuals and animals and removing personal property from any specified area and making arrangements for the adequate care and protection of individuals and property.

4. Establishing facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals.

5. Closing any place, whether public or private, including any business, office, school, hospital or other establishment or institution.

6. To prevent, respond to or alleviate the effects of the emergency, constructing works, restoring necessary facilities and appropriating, using, destroying, removing or disposing of property.

7. Collecting, transporting, storing, processing and disposing of any type of waste.

8. Authorizing facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency.

9. Using any necessary goods, services and resources within any part of Ontario, distributing, and making available necessary goods, services and resources and establishing centres for their distribution.

10. Procuring necessary goods, services and resources.

11. Fixing prices for necessary goods, services and resources and prohibiting charging unconscionable prices in respect of necessary goods, services and resources.

12. Authorizing, but not requiring, any person, or any person of a class of persons, to render services of a type that that person, or a person of that class, is reasonably qualified to provide.

13. Subject to subsection (7), requiring that any person collect, use or disclose information that in the opinion of the Lieutenant Governor in Council may be necessary in order to prevent, respond to or alleviate the effects of the emergency.

14. Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency.

Among other provisions, the EMCPA also gives the premier considerable authority (section 7.0.3) to exercise powers that have been conferred on a cabinet minister or Crown employee. The legislative assembly can extend the emergency for 28 days (section 7.0.7). And the emergency can continue after the reason for the emergency has ended to deal with the after effects (section 7.0.8(4)).

The statute itself provides some protections against abuse. Not least is that under subsection 7.0.2(1): “The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms.” (emphasis added)

Furthermore, under subsection 7.0.1(3), the actions “shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness”, only apply where necessary in Ontario and shall be effective only as long as necessary”. The premier must report regularly to the public about the emergency (section 7.0.6) and must table a full report to the assembly 120 days after the termination of the emergency (section 7.0.10). Orders are limited to 14 days under section 7.0.7 (although the time can be extended for another 14 days). The legislative assembly can disallow the emergency (section 7.0.9).

As far as the role of the legislative assembly is concerned, its involvement may be less effective when a government has a majority, although, of course, members of a premier’s party might disagree with the premier’s actions. On the other hand, in a time of minority government, it may be difficult to avoid disallowance even if circumstances warrant a declaration of a state emergency. Nevertheless, the legislation recognizes some role for the legislative assembly even though it grants the executive considerable power.

Following the main declaration, additional orders in council on the same day, March 17th, were more specific. These closed businesses and limited the size of gatherings. Order in Council 519/20 (O.Reg. 51/20, which provides greater detail) provided for the government’s shuttering of indoor recreational facilities, public libraries, private schools, licensed child care centres, bars and restaurants (except for providing takeout/delivery) and cultural facilities. Order in Council 520/20 (also see O.Reg. 52/20) prohibited public gatherings of over 50 people. (See paragraphs 7.0.2(4) 5 and 14 of the EMCPA.) However, a subsequent order on March 28th strengthened the initial closings, prohibiting public events and social gatherings of more than five people, with some exceptions, including childcare facilities for children of healthcare workers and funerals, although these, too, are limited. (See paragraph 7.0.2(4) 5 of the EMCPA.)

A few days earlier (March 23rd), Ontario had ordered “all non-essential businesses” closed as of March 24th for two weeks, unless they can operate remotely, and the next day the government released the list of “essential businesses” allowed to open. The relevant regulation, O.Reg. 82/20, is considerably more detailed and also provides that persons operating businesses not listed as an essential business may access the business temporarily for specified purposes and may operate remotely. In this case, the government stressed its consultation with businesses and workers to determine the list. The list turned out to be lengthy and somewhat confusing (on the former, for instance, see here; on the latter, see, for example, here; for a comparison with other provinces of businesses considered essential, see here). (See section 7.0.2(4)5.) [UPDATE: The “essential business” designation had an interesting twist when police charged a drug dealer in Hamilton with trafficking and with violating O.Reg. 82/20 under the EMCPA because selling cocaine is not an essential business (although selling alcohol and cannabis is).

(I note there are no Orders in Council listed on the Orders in Council website subsequent to the March 17th orders as of the time of writing, although they are available in regulation form under the EMCPA, including those already referred to above.)

Some of the orders make or permit significant changes to arrangements in particular workplaces. O.Reg. 74/20 allows health service providers to deploy health care workers, regardless of any statute or agreement, including collective agreement, as necessary “to respond to, prevent and alleviate the outbreak of the coronavirus (COVID-19) (the “Virus”) for patients”. This is a very broad regulation made pursuant to paragraphs 7.0.2 (4) 8, 9, 10, 12 and 14 of the EMCPA. Along with effectively eliminating rules and procedures relating to the deployment of work in health care facilities and requiring the collection of information from staff or contractors relevant to the coronavirus, it also allows providers to “[c]ancel or postpone services that are not related to responding to, preventing or alleviating the outbreak of the Virus”, such as treatment of other persons. O.Reg. 77/20 is a similar order affecting long-term care homes. An analogous order relieves licencees of many requirements involving in running long-term care homes, although it also states, nothing “derogates from a licensee’s responsibility under the [Long-Term Care Homes Act] to ensure a safe and secure environment for residents” (O.Reg. 95/20 under paragraphs 7.0.2(4) 8, 12 and 14).

The government is also able to bypass certain protections around services such as water services. O.Reg. 75/20 allows specified persons ordinarily not permitted to do so, to operate “a municipal drinking water system or regulated non-municipal drinking water system” (see paragraphs 7.0.2(4) 8, 9, 12 and 14 of the EMCPA). O.Reg. 89/20 gives to Ministry of Transportation officers the power of police officers to direct traffic and close highways; the Ministry of Transportation, a municipality, a police officer or a Ministry of Transportation officer has authority under the regulation to designate emergency parking location, which can include a private business. Thus the government can control how people move or not move around the province to ensure highways are not jammed or that necessary goods are able to travel, for example.

Some orders are made under other sections of the EMCPA and, although all orders are intended to be for the ultimate benefit of Ontario residents, some orders are meant to make life easier in the short term, during the crisis. For example, O.Reg. 73/20 provides for the suspension of limitation periods during the emergency, under section 7.1(2), which permits the temporary suspension of legislative and other provisions. O.Reg. 80/20 provides for charging electricity customers the low rate regardless of time of day (paragraph 7.0.2(4) 11), while O.Reg. 98/20, under the same paragraph, prohibits price gouging by retailers or people who didn’t sell the goods previously, but not by manufacturers, distributors or wholesalers, for “necessary goods”, a small list of items related to coronavirus protection. (The notion of controlling “price gouging” is considerably more circumscribed than might first appear.)

(For the extension of orders to April 13th, see O.Reg. 106/20 under subsection 7.0.8(2)).

I’ve gone into this detail, not to be critical of Ontario government’s emergency orders (except perhaps the large number of businesses identified as “essential”) or to suggest that they are unusual. They reflect actions taken across the country to respond to the coronavirus crisis and to try to “flatten the curve” — spread out the impact of the virus with a consequent spreading out of the resources used to fight it. The emphasis on social distancing or “staying in place”, even for those who do not show symptoms of the virus or who may not be particularly vulnerable because of age or medical condition is designed to avoid overwhelming the health system; it is hard to know how successful this policy has been yet. But it is also a recognition that asymptomatic people are able to spread the virus to others and that the virus, while affecting anyone seriously, may have a detrimental impact on certain people in particular. We should also not be surprised when governments taken even more stringent steps, such as a lockdown, extending closures for a much longer period, since the actions to date may not be having the effect they might (just this afternoon, Mayor John Tory announced the cancellation of all city events and permits until June 30th to protect essential workers and vulnerable persons).

Nevertheless, a review of the orders two points in particular.

The first point is the justification of actions by reference to the provisions of the EMCPA; once the declaration of emergency is made, the government has taken a significant step, particularly where it applies to the entire province, unlike those usually made in response to weather situations, for example. And despite time limitations, it is not unlikely that the emergency will continue for some time longer than first announced. But it is important that the actions correspond to the powers set out in the legislation. It is also important that we can see the provisions on which the government is relying, and the orders in council do that (although we cannot necessarily find the orders on the orders in council website, they are available under the regulations of the EMCPA). And it is important that they have limited applicability temporally, even though they can be renewed. And an essential condition is that the actions must be carried out in a way that allows the Charter to apply, that they be “prescribed by law”.

The second initial point is that EMCPA has considerable disruptive potential and within specific areas, such as deploying the workforce in health care facilities or in long-term care homes, as well as others, the government’s orders are disruptive of normal practice. These orders reflect a considerable increase in executive power. It must also be noted that while the orders generally refer to specific (often broadly worded) actions permitted by paragraph 7.0.2(4) 14 of the EMCPA gives government the widest power, unchecked, except by relatively vague opening words, by limitation to specific kinds of actions or realms of activity. (A reminder of the wording: Consistent with the powers authorized in this subsection, taking such other actions or implementing such other measures as the Lieutenant Governor in Council considers necessary in order to prevent, respond to or alleviate the effects of the emergency. [emphasis added])

Why do we (or most of us, I believe) accept government’s increased powers, even when many of us will not have examined the Emergency Management and Civil Protection Act or weighed the authority it grants beside its protections? Because we want government to be able to respond to crises in ways it would normally not be able to do. It is part of government’s obligation under the social contract it has with us. We trust government to a point to do the “right thing” because need it to bring the crisis under control. Some of us, for sure, do not trust government or just generally believe in very minimal government. But mostly, we watch what government does and we expect the other levers of state to watch over the executive’s actions.

However, the social contract also requires government to satisfy certain obligations for it to be sustained. Speaking generally, government needs to retain our trust. It needs to act consistently or to explain why not. It must take responsibility when that is appropriate and not displace blame on others. It must be seen to be directing its efforts to the population as a whole (or to particular segments with special needs related to or resulting from the crisis), not to its friends. It needs to provide honest and forthright information to explain why it is taking the actions it is. There has been some criticism of Ontario in this regard, although it has recently changed how it provides information, which has been described as both “superficial” and going “in the right direction”. And to provide adequate information to the public, it needs to have the information, in this case testing to see who has the virus, who is positive for COVID-19. (For a useful explanation, see “How Canada needs to respond to COVID-19” by David Naylor and Tim Evans.) It also must accept free media that may expose it to criticism, media that accepts their own obligation to support the social contract through unbiased and open reporting (I acknowledge there are circumstances where this can become more complicated, but this does not seem to be the case here). [UPDATE: The April 1st Globe and Mail editorial favourably compared BC’s “transparency” in providing data to the public to Ontario’s “information gaps”.]

While we see no evidence here of an abuse of the powers allowed and accepted to overcome the coronavirus crisis, fear can make one complacent, too ready to agree to a greater rip in the social contract than is necessary to accomplish the goal. Like the frog in hot water, an unscrupulous government (I do not suggest for a moment that this is a relevant description to the Ontario’s use of the powers under the EMCPA) can move the needle along until it has gone beyond the parameters deserving of trust. We do not have to look to pre-War II Germany to see what can happen. We can see it today in Hungary where Victor Orban, having bit by bit dismantled the pillars of democracy, has taken advantage of the coronavirus crisis: “the Hungarian parliament passed a coronavirus bill that gave Prime Minister Viktor Orban the power to rule by decree, with no end date, and established chilling new penalties on speech and on those who violate quarantine.” (See here.)

Would we expect that to happen here? Should we worry about its happening here? Isolated incidents may have given and do give us us concern about governments in Canada, but we do not believe the coronavirus crisis will be abused to demolish democracy. Democracy is sufficiently robust to permit some derogations of free movement and other normal activity. That does not mean, however, that we should not expect our governments to observe their social contract with us, even while they are exercising emergency powers, and to act in accordance with law even in this tragic time.

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