What the Pandemic Has Taught Us About Law: Part 2

In my last Slaw post (January 12, 2021), the first of two parts, I discussed the characteristics necessary for law to be accepted and effective. Here I consider some of the laws — the legislation, the regulations, orders and, although not law, intended to have a similar impact, advice or recommendations — that have been imposed during the pandemic. I’m focusing on Ontario, although I refer to developments elsewhere. Even so, my discussion is not meant to be exhaustive, but to illustrate laws enacted during the pandemic that do or do not satisfy the requirements of acceptable and effective law.

Briefly, to be accepted by the majority of the population and to be effective in meeting its goal, a law must satisfy the following requirements: be enacted by an appropriate body (legislation enacted by the legislature or regulations issued by Cabinet, for example); be promulgated to allow those subject to it to access it (such as in the Ontario Gazette or on the Ontario e-laws website); be clearly drafted to ensure those subject to it know the conduct expected or prohibited and the penalties for failing to obey it; be stable, although flexible enough to respond to changing circumstances; applied to everyone the same way, unless justifiable differential application is clearly set out. A more amorphous and subjective, but nevertheless crucial, characteristic is that the law must be fair and, especially, be seen to be fair. Where people perceive the law to be unfair generally or in relation to them personally, they are likely to accept it only grudgingly or push back against it; either way, its effectiveness will be diminished.

As I discussed in the first of these two posts, despite efforts to control the Covid-19 pandemic, the situation is worsening in most of Canada and in many other countries. Even countries that seemed to have it under control have suffered resurgences. Countries or regions that seem to have been most successful are those that are “isolated”, either geographically (such as New Zealand), because of imposing fences around themselves (such as the Atlantic provinces, which closed their borders to the rest of Canada and at times to each other; for an uptodate overview, see The Globe and Mail editorial of January 17/18, 2021, although also see current concern in New Brunswick), effected a serious lockdown (again, New Zealand and Australia); or had a highly developed public health infrastructure response (Taiwan). (By “closed their borders”, I mean they imposed strict limitations on who may enter the province and the conditions that must be met by those who do enter.)

Notably, some, although not all, of these countries have a centralized government rather than different jurisdictions that have responsibility for their own Covid-19 responses, as in the case in Canada. Even in decentralized countries, however, the centralized government plays a major role (one might compare the federal response in Canada to the federal response in the United States, for example).

Before addressing the focus of this post, I provide an overview of the measures taken over the past 10 months to address the pandemic.

In Ontario and at least some other Canadian jurisdictions, the first thing to note is that responses have been somewhat erratic. Different jurisdictions have taken different approaches; see, for example, a greater emphasis on personal responsibility in Alberta, although at different times, it has closed businesses and taken other restrictive measures (see here and here), while Ontario has since last March implemented various means of controlling behaviour. All jurisdictions (except the federal jurisdiction) have enacted states of emergency or public health emergencies, allowing them discretion to impose restrictions more easily and quickly.

As it became clear that the pandemic was worsening, various institutions took steps to control the spread of the virus. For example, courts closed their doors, limiting the ability to access justice, except in exceptional circumstances, although eventually developing capacity for online hearings (see my Slaw post of March 17, 2020 for a more detailed description of the early days). Provincial governments extended the mid-winter break. In Ontario, school did not reopen to in-person teaching until September (see here for the plan as described in a CTV report), and at that time provided parents the option to have their children attend school in person or virtually. (Following an extension of the December break for all schools in Ontario, with a staggered return after a week or two weeks, schools in some areas are now closed until February 10th under the new emergency declaration [see CTV report here].)

The first major development in Ontario occurred when the premier announced a state of emergency on March 17, 2020 (the Emergency Management and Civil Protection Act (EMCPA)). (My March 31, 2020 Slaw post discusses the passage of regulations under this Act, as well the declarations in other provinces.) Only “essential” businesses in Ontario (for example), such as grocery stores and pharmacies, among others, were allowed to open, while others could sell online or have curbside delivery as applicable. Personal services were suspended, except for emergencies (these included dental and optometrist services, for example). (O.Reg. 82/20 detailed essential businesses.) Gatherings were limited to maximum numbers, depending on whether they were indoors or outdoors. Other provisions permitted the government to override collective agreements in hospitals and other care facilities. Penalties were those under the EMCPA.

Municipalities also declared states of emergency and imposed their own restrictions, such as requiring mask wearing in indoor public spaces (such as grocery stores) closing recreational facilities, among other restrictions. In one example, Toronto city council passed a motion to allow the mayor to act on behalf of the city (see here).

Over this time period, however, public health officials merely advised people to remain at home, and to go out only to shop for groceries, for medical services or to exercise. Health authorities reinforced this message with regular full-page ads in newspapers and posts on social media, as well as during press conferences. Based on my own conversations, not everyone was clear about whether these recommendations were law or not. Cities across the country also enacted by-laws restricting access to parks and park facilities, including children’s playgrounds, and various municipal services.

In early summer, jurisdictions began to loosen the “lockdowns”, allowing people to eat in restaurants, go to the dentist, gather in parks, go to gyms and so on. In July, Ontario replaced the emergency power under the EMCPA with new legislation, the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020. This Act maintained existing orders, but did not permit new ones. (I discussed the relationship of the Reopening Ontario Act to democracy in my Slaw post of August 4, 2020.) In my post on the Reopening Ontario Act, which meant the government did not have to keep announcing states of emergency, I said the following:

it delivers the message that the pandemic has reached a different stage — we’re out of lockdown, we’re getting back to normal — and it gives the government greater flexibility in continuing orders. These are the same orders that were warranted by the emergency, but it now seems are warranted under a “process of long-term growth”, as the government describes the third stage.

Some of the more restrictive municipal rules no longer apply (for example, in Toronto, children’s playgrounds were opened cause of fear of parents’ congregating there; they are now open and while the province has returned to a “lockdown”, the city has not put tape around the slides and swings).

However, the long-term growth did not achieve that objective and on January 12, 2021, the Ontario premier announced a second state of emergency with a new set of restrictions (listed in detail on this website), effective as of January 14th and to last at least until February 11, 2021. It contemplates that the province will return to the COVID-19 Response Framework: Keeping Ontario Safe and Open with its coloured zones. Given that a short lockdown preceded the emergency declaration, it is not entirely clear how the restrictions differ from those already in place in some areas of the province, except in one major way. Staying at home is no longer “merely” advice, but is now an order.

How have these various restrictions met the requirements of accepted and effective laws? Here I link examples of the laws to the requirements.

Enactment and Promulgation of Laws

While the provincial laws have been enacted or promulgated in accordance with established requirements, it needs to be noted that requirements under emergency legislation differ from those normally expected. Declarations of states of emergency (or public health emergencies) have limited time periods and must be renewed according to the provisions under the emergency legislation. The processes for declaring and extending emergencies may vary in different jurisdictions, however.

In Ontario, for example, initially, Cabinet or the premier can declare an emergency and take steps to restrict activities, although if declared by the premier, the declaration lasts only 72 hours unless confirmed by Cabinet (EMCPA, s.7.0.1(1) and (2)); however, after one 14 day extension, further extensions require legislative approval (EMCPA, 7.0.7(2) and (3)), although Cabinet or a minister can extend orders under the emergency (EMCPA, 7.0.8(3)).

In contrast, the New Brunswick Minister of Justice and Public Safety has the authority to declare an emergency and may renew the declaration with the approval of Cabinet; the Minister declared an emergency on March 19, 2020 and has renewed it 22 times since then, most recently on January 15, 2021. (See Emergency Measures Act, ss.10, 17.)

The Ontario government avoided having to renew emergencies by enacting new legislation, the Reopening Ontario Act, which allowed the government to continue and amend orders in place under the EMCPA, although not to make new orders (Reopening Ontario Act, s.2). The Reopening Ontario Act allowed the government maintain control, while giving the impression that the pandemic situation was improving and no longer requiring a declaration of emergency.

The Reopening Ontario Act and orders under it continue in effect at the same time that the government issued a second declaration of emergency under the EMCPA effective January 12, 2021, but with amendments to regulations (see here); this website does not specify what regulations under the Reopening Ontario Act have been amended or how.

In particular, the Stay-at-Home order under the EMCPA turns the advice public health authorities had given into an order (O.Reg.11/21) and the Enforcement of Covid-19 Measures order (O.Reg. 8/21) provides particular authority to provincial offences officers in relation to offences under the EMCPA and gatherings exceeding numbers specified under the Reopening Ontario Act, 2020. It incorporates certain provisions of the Stage 1 Order (such as businesses that are allowed to be open). (It also provides limited protection against eviction [O.Reg. 13/21]).

New enactments are likely to be posted on the Ontario e-laws website before being announced in the Ontario Gazette; for example, O.Reg. 11/21, the stay-at-home order, was published on e-laws on January 13, 2021, to come into effect on January 14, 2021, but will not appear in the Gazette until January 30, 2021. Most people are likely to try to understand permitted conduct by looking at various Ontario government websites intended to explain the rules in plain language (or possibly talking to their friends or relying on social media or newspapers?), which is easier to understand. Depending on the website they select, they may think that their freedom to go outside is more restricted than is the case:

As of January 14, 2021 at 12:01 a.m., a stay at home order is in effect for all of Ontario.

This means you must stay at home. You should only go out for necessities, such as:

getting food, beverages or medication
going to medical appointments
supporting vulnerable community members
child care
attending school or a post-secondary institution
going to a bank
accessing government services
getting exercise or walking pets
going to work, if you can’t do it remotely

Businesses must ensure that all employees work from home if they can.

Do not travel outside your region or the province unless absolutely necessary. (See here)

Following this truncated and simplified list, the website suggests people look at the full list: this is in fact O.Reg. 11/21. (Also see a different explanation here.)

The website with the “truncated list” I referred to above also refers to social gatherings, but is only slightly more illuminating than is O.Reg. 11/21. First, it states, “Limit close contact to only members of your household (the people you live with)” (with the exception of if you live alone or are a single parent, when you can mix with one other household, which must remain the same). It also states up to 5 people can gather outdoors; this seems contradictory, but the difference is the phrase “close contact” for members of the household, while the social gatherings require masks and physical distancing. Unlike O.Reg. 11/21 itself, this easy to understand information does not make clear that even though you can have a wedding (for example) with 10 people, you can have a social gathering associated with the wedding with only 5 people.

This Ontario government website contains extremely detailed information about the new restrictions and Covid-19 requirements generally for the public, businesses and others (see here).

The failure to maintain currency on some Ontario government websites could also be confusing. COVID-19 response framework: keeping Ontario safe and open, which provides for staged openings in different zones of the province now states that it is paused because of the second emergency declaration. It also states, however, that “[t]he guidance on this page is being updated to reflect the new restrictions and public health measures. The out-of-date content will be changed shortly.” (See here.)

On the whole, Ontario provincial laws have satisfied the requirement of enactment and promulgation, even if sometimes difficult to find initially and people may have had difficulty tracking changes because emergencies allow deviations from the usual processes. It is important to remember, however, that these procedures have often been those permitted under an emergency. Similarly, municipalities have not followed their usual democratic procedures. A good assessment across the country of municipal restrictions and particularly processes is found in States of Emergency, a publication of the University of Windsor Faculty of Law’s Centre for Cities, which I discussed in my October 20, 2020 Slaw post. The report states,

Enabled by provincial legislation and emboldened by provincial state of emergency declarations, in the early weeks of the pandemic many Canadian municipalities – including most of the country’s largest cities – declared local states of emergency. In many cases this was the first time such a step had been taken. These declarations, along with other provincial and municipal legislative changes, helped to create a situation in which major decisions were being made in Canadian municipalities by mayors and/or city administrators, with limited input from elected councils, standing committees and
commissions, or members of the public. The ability of residents to impact the decisions that affected them —participatory governance — was severely limited while important decisions on issues from transit service, to physical distancing fines, to the closure of local businesses were being made. (States of Emergency, p.4)

While perhaps understandable under the circumstances, which necessitated quick action and an ability to enforce restrictions, States of Emergency points out that the lack of public consultation or methods of consultation had a disparate impact on Black, Indigenous, and People of Colour (BIPOC) communities, who have been particularly affected by the pandemic.

Accessibility of Laws

Eventually, the orders under emergency legislation in Ontario have been posted as required; however, it has at times been difficult to find them immediately after they have been issued. As indicated above, the Ontario government website includes detailed information about Covid-19 requirements and this may be helpful for members of the public who have easy access to the internet and can work their way through even these plain-language lists of do’s and don’ts.

In relation to the stay-at-home order, for example, for some people, the rule is easy: stay home as much as possible and don’t go outside unless shopping for groceries, making visits to the pharmacies and in person medical appointments or exercise (which is more or less limited to walking, running or cycling if one goes outside, except for being outside on one’s own property). People who are not able — or able but not willing — to limit their activity in this way must determine whether what they want to do by reference to O.Reg. 11/21 or the government website.

Difficulty with accessibility may be related to some governments’ own policy difficulties, including Ontario’s. For example, parents deciding whether they preferred their children to attend school in person or virtually have been frustrated by the lack of information and clarity about the rules for Ontario schools last September. (For a CTV report of some of the confusion, see here; a particular issue has been whether there was a requirement in the fall for testing if a child experiences symptoms of Covid-19: schools were requiring it while Ontario’s medical officer of health said that was not the case [see Globe and Mail report here].)

Clear Expectations for Conduct and Penalties

The way public health authorities have addressed the wearing of masks has contributed to distrust of public health requirements and illustrates how people might respond when authorities repeatedly change their minds.

The requirement to wear masks is now almost universal across Canada inside public places and workplaces (for provincial and territorial mask requirements, begin here). However, the recommendations and requirements about wearing masks has evolved probably more than any other aspect of pandemic “law”. Initially, the recommendation was not to wear a mask because there was fear there would be insufficient masks for front-line workers and that people might become complacent about other protocols, such as maintaining physical distance. Then there was a recommendation to wear masks to protect other people; this shifted to evidence that it also protected the wearer. And finally, there are mandatory mask requirements, sometimes at the municipal level. Toronto, for example, put a mask requirement in place last June and many other cities did around the same time. Ontario established mask requirements last October (see here).

Some people are unable to wear masks (such as persons with particular disabilities). Beyond this, however, mandatory mask requirements have led to protests and deliberate flouting of the law. Some people maintain that they have medical conditions that do not allow them to wear masks (this view may be reflected in exemptions under mask by-laws, although it appears the regular masks people wear do not aggravate conditions). Anti-maskers rely on the shifting landscape of health officials’ treatment of masks, which could be seen as adapting to new information as it occurs, but which for anti-maskers is presented as experts not knowing what to do. They may argue that masks make people ill. Some do not believe the pandemic is serious. They also complain that mask requirements restrict their freedoms (“government cannot tell me what to do”), despite deferring to traffic light or seatbelt laws, for example. (For a discussion of the various reasons and possible responses, see McGill’s Office for Science and Society’s “Why Some People Choose Not to Wear a Mask” here).

It appears that the majority of people do wear masks indoors in public places. Nevertheless, the confusion in mask messages in the beginning lingers and is sometimes used by people who question government’s responses in other areas.

A family law custody case in British Columbia illustrates the ambiguity in some laws. A mother withheld the shared parenting with the children’s father because the latter had entered into a relationship with another woman and in particular into a polyamorous relationship. A report of the case in the Vancouver Sun explains,

The father “quite accurately” says the information published on the provincial health officer’s website is not clear on how restrictions apply to a co-parent whose kids only live with a parent half the time, [Judge] Kent writes.

The judge notes that the restrictions have been amended, repealed and replaced over time.

“The messaging accompanying these orders, and indeed the language of these orders themselves, is fraught with inconsistency and ambiguity,” Kent writes.

The judge highlighted that certain aspects of the public health order relating to shared custody “remains undefined, including what is meant by gatherings, someone living on their own, and regular interaction.” The judge found that “[d]espite its obvious potential application to parents with children, these orders provide very limited express direction for family units and parenting regimes in all their various forms”.

Another example of how laws might be difficult to understand occurs in Ontario regulation O.Reg. 11/21 under the new declaration of emergency. The basic requirement is simple: Every individual shall remain in their place of residence at all times unless leaving their place of residence is necessary for one or more of the following purposes” (O.Reg. 11/21, s.1(1)). There follows a list of 29 “purposes”, some of which acknowledge the difficulties facing people living under stay-at-home conditions, such as “protecting oneself or others from domestic violence” (Schedule 1, s.1(1) 15) and “If the individual lives alone, gathering with the members of a single household” (Schedule 1, s.1(1) 25). The order sensibly states, “This Order does not apply to individuals who are homeless”. (Schedule 1, s.1(3)). (By comparison, Quebec’s curfew does not exempt homeless people and there have been reports of homeless people being ticketed (National Post, here.)

Other provisions under O.Reg. 11/21 must be read in conjunction with other orders: for example, under “Obtaining Goods and Services”, at least 5 of the 7 permitted purposes require people to review whether the place they want to obtain goods and services is permitted to be open and under what conditions it may be open, with 2 explicitly referring to the Stage 1 Order, which is O.Reg. 82/20 under the Reopening Ontario Act, 2020.

It is, of course, feasible for someone to work their way through the various orders that have been made previously. This is not the case with all the provisions under O.Reg. 11/21, however. The provisions relating to gatherings are confusing. Again, the basic requirement is that people stay at home, except for the specific reasons listed. O.Reg. 11/21 explicitly permits people to gather for “a wedding, a funeral or a religious service, rite or ceremony”; however, one must refer to the Stage 1 order to find out the limitations on these gatherings, which are addressed in Schedule 4 to O. Reg. 82/20 and relate to place (outside only) size (up to 10 people) and physical distance requirements (there are other requirements if people attend in a car Schedule 4, s.1(1)). There is a distinction between “a wedding, a funeral or a religious service, rite or ceremony” and a “social gathering” (outdoors only), which may or may not be associated with “a wedding, a funeral or a religious service, rite or ceremony”; regardless, only 5 people may gather. Back to O.Reg. 11/21, which states:

(7) For greater certainty, nothing in this Order permits an individual to gather with other individuals if the gathering is not permitted under the Stage 1 Order.

(8) For greater certainty, individuals may only attend an outdoor organized public event or social gathering that is permitted under the Stage 1 Order for a purpose set out in subsection (1). (O.Reg. 11/21).

Nowhere in O.Reg. 82/20 or O.Reg. 11/21 does it appear to indicate what is meant by “social gatherings” that are not associated with “a wedding, a funeral or a religious service, rite or ceremony”.

It is not clear what these gatherings are, since funerals and weddings and religious services are already exempted, and whether one’s household is counted among the five. (Of course, it is easy to follow the law about staying home by simply not gathering with others, but the two restrictions together seem to contradict each other and simply add to the frustration of isolation from others for some people.)

There has been criticism of the new stay-at-home order for several reasons: the rush with which it was released, some lack of clarity, the message that people are required to stay-at-home coupled with a long list of exceptions among other issues (see, for example, this Globe and Mail article here). Businesses are also confused because people are not supposed to leave their homes to go to work except for essential purposes, yet non-essential businesses are allowed to be open in some form (Globe and Mail articles here and here; National Post, here). Even the Washington Post printed an opinion piece on “Ontario’s lockdown guidelines are a confusing mess”.

Some clarification has been given after the issuance of O. Reg. 11/21: although enforcement officers have discretion under the regulation with respect to closing premises where there are gatherings, they must have “reasonable and probable grounds” to ask for an ID and other information from individuals who appear to be out of their homes for impermissible reasons. The province has stated that police cannot enter homes, stop cars or require letters from employers under O. Reg. 8/21, which addresses enforcement (see Globe and Mail article here). (On the limitations on police powers, see “Criminal law specialist explains police enforcement powers under Ontario’s stay-at-home order” in the Law Times.)

For the most part, penalties for contravening orders are those under the EMCPA. The government website relating to O.Reg. 11/21 does specify the possible penalties for contravening the gathering provisions unless one fits into the exceptions: $10,000 for the organizers and $750 for each attendee. Ontario’s Solicitor General has explained, according to a CTV news report, “[p]enalties for breaking the stay-at-home order could include up to a year in jail” (see here).

In the early days of municipal restrictions, overly zealous enforcement became an issue. In the municipal context, for example, enforcement officers across the country were ticketing people for sitting on park benches or flying a kite with their child. Overly zealous enforcement can result in people ignoring the rules because it is difficult to know when conduct does actually breach them (see an April 19, 2020 article in The Globe and Mail on this point). This may be occurring again. I have already mentioned the ticketing of homeless people under Quebec’s curfew. In another example, a woman driving to work was stopped during the curfew in Montreal and although she had a letter from her employer stating that she had to work during curfew hours, the officer requested her ID and to know what was in a bag she had with her (it contained her lunch). When she resisted showing him the bag, he threatened her with a ticket, ignoring the letter, his partner continued to question her, he checked her credentials and finally allowed her to drive away without a ticket (see National Post here).

More recently, however, as cases have climbed, jurisdictions have become more stringent in enforcing the rules. For example, authorities in British Columbia announced more enforcement officers, to “ensure the province can penalize those who put their own ‘selfishness’ above public health” and to address the problem they see of “people who ignore or try to find loopholes in the province’s COVID-19 restrictions” (see The Globe and Mail story here); Alberta has done the same (see The Globe and Mail story here).

Not only the public may become frustrated with difficulty in accessing or understanding the laws. Fire Chief Matthew Pegg, responsible for Toronto’s emergency response, indicated frustration with how the new stay-at-home order (O.Reg. 11/21) was rolled out. He

said Wednesday afternoon that his city’s police and his bylaw enforcement teams had not yet received a copy of the order, and would have to first study the new rules when the government provides them. He said this would make it unlikely any new enforcement would start Thursday at 12:01 a.m.

“Literally, the best information we have right now comes off a media release and a slide deck, and it simply is not the technical detail that we need in order to assess or understand that,” Chief Pegg said. (See here )

Stable Yet Flexible

The question here is whether responses to a pandemic that ebbs and flows and seems to worsen even in places where it seemed to be under control can be anything but appear to be “erratic” or ad hoc. The impression left is that the government does not know what it is doing, especially compared to jurisdictions that have been more successful.

The expectation was that the latest lockdown in Ontario would begin Christmas Eve (see CTVNews report here), presumably discouraging extended family celebrations on Christmas Day; in the event, it was not put in place until December 26th (see CBC report here). As people acclimatized to the lockdown, shortly afterwards, on January 12, 2021, the Ontario government announced the new emergency declaration and stay-at-home order effective January 14th until January 26th because, it explained, the preceding lockdown had not been effective.

I previously discussed the changing recommendations and legal requirements about wearing masks, which contributed to a sense among (it seems) many people that the government and the public health authorities did not know how to respond to the pandemic. (I note that the evolution of mask requirements was also an issue for the World Health Organization, which issued updated guidance as late as June 2020: see here.) On the evolving science leading to mask recommendations, see “Why Theresa Tam changed her stance on masks” in May 2020 here.

There is a difference between “stability” and “rigidity”. The former permits flexibility and evolution in response to change, the latter does not. Some people have viewed changes in the law and especially in an area such as mask wearing not as flexibility but of evidence of flailing. Similarly, a quick shift from a lockdown to a second emergency suggests that the government is responding to immediate situations, not seeing the big picture. This kind of response makes it easier for those reluctant to follow any rules to feel justified: why can’t the government get it together? Why should I do this (whatever this is) when they really don’t know what they’re doing.

Applied to Everyone as Relevant

Closure of businesses had led to anger, not only among those directly affected, but also by others who see the law as favouring some at the expense of others. This example illustrates, as well, the fairness principle.

In Ontario, and particularly in Toronto, many small business have had to close and many have gone out of businesses or are struggling. Big department stores are also required to close, but they may be in a better position to engage in online transactions, delivery and curbside pickup. Grocery stores and other “essential businesses”, such as pharmacies and hardware stores are open; in principle, this makes sense. However, big box stores, such as Walmart, that sell groceries are able to call themselves essential because of that, even though they sell many other items and continue to do so. This has created difficulties and a sense of unfairness, particularly for smaller businesses, but even for a larger business.

HBC (that runs The Bay department stores) brought a challenge to the requirement they close while Walmart remains open. I note that in Manitoba, at least, Walmart can sell only essential items; other areas of the store are fenced off (see here), but this is not the case in Ontario.

HBC argued that the difference in treatment of department stores such as itself and “discount and big box stores”, such as Walmart, creates an “irrational distinction”. The Divisional Court denied HBC’s application, stating,

[4] Absent a [Canadian] Charter [of Rights and Freedoms] challenge, the focus of judicial review of a regulation is narrow. It is not the role of the Court to decide whether s. 2(1)3, Schedule 2, of O. Reg. 82/20 is effective, overly broad or unduly restrictive. These are policy choices made by the Ontario government during extraordinary times. The Court’s role is limited to determining whether the provision at issue is authorized by the ROA [Reopening Ontario (A Flexible Response to Covid-19) Act, 2020], which it clearly is. The purpose of the ROA is to balance public health and safety measures with economic concerns during the current pandemic.

[5] O. Reg. 82/20 sets out the restrictions imposed on the parts of Ontario with the highest rates of COVID-19. In those areas, Ontario’s objective is to significantly limit contacts between people for the purpose of reducing the spread of COVID-19 while giving Ontarians access to essential goods such as groceries. Requiring HBC to keep its stores closed to the public while allowing discount and big box stores that sell groceries to open is consistent with these purposes.

The Court concluded, “absent a statutory requirement to do so, governments have no obligation to provide evidence to justify the effectiveness of their policy choices” (para. 88).

However, although the regulation may be legal, one may ask whether it is “fair”. It is this latter characteristic that affects whether the public accepts the law or not. It seems there are, in fact, few examples of small businesses opening or of large businesses such as HBC (or Indigo, for example) contravening the law. One notorious example concerns the owner of a restaurant who opened his restaurant, was ordered not to do so and opened it again; he was arrested. Many people may not have agreed with his aggressive conduct, but his message that the law is unfair appeals to at least some people. It appears that the police did not think that his entire restaurant was under a closure order and allowed him to enter; however, others, supporting him, smashed down drywall in order to reopen the restaurant. (For this story, see this CTVnews report.) It is worth noting that Walmart is probably better equipped to provide products online and having them delivered than are many small businesses.

There had been talk before the most recent declaration of emergency that the different treatment of big box stores would end; however, while there were some more restrictive requirements for retail premises, they did not include requiring big box stores selling groceries to just sell groceries.

Fair and Seen to be Fair

In addition to the different treatment of Walmart and the like, on the one hand, and small businesses, on the other, business closures have seemed unfair because the government has not been able to show a clear link between the opening of retail business and the spread of Covid-19, especially if restrictions ensure that it is possible to maintain distance and customers and employees wear masks.

Closure of businesses has also seemed unfair because at various times, only certain parts of Ontario have been locked down and other neighbouring regions that are easily accessible have not been. Thus the a business might have been forced to close on one side of a street constituting a “border” while the the same kind of business across the street remained open.

Other cohorts find unfairness elsewhere. In the summer, limitations on gatherings seemed unfair to young people who seemed less likely to contract Covid-19; for some, the the restrictions seemed only for the purpose of protected vulnerable older people. Grown children with parents in long-term care resented the complete restrictions on visiting. People from outside the Atlantic provinces who wanted to visit dying relatives in the Atlantic provinces considered the border restrictions unfair. In my January 12th post, I quoted Alan Macfarlane as saying, “what makes laws effective is the way in which people feel it runs with their interests and not against them”. With rules and strong recommendations that cover much of our conduct, it is not difficult to find some aspect that doesn’t “run against” us.

Of particular interest is the anger following the revelations of out-of-Canada travel by politicians and senior bureaucrats. There is in fact no law against travelling out of Canada. Even the new Ontario requirements, while prohibiting, with specified exceptions, travel within the province, discourage but do not seek to prohibit travel to other provinces or travel outside Canada. Indeed, O.Reg. 11/21 exempts “Travelling to an airport, bus station or train station for the purpose of travelling to a destination that is outside of the Province” (O. Reg. 11/21, Schedule 1, s.1(1) 23). (No doubt fear of a Charter challenge makes that tool lose its lustre.) Yet travel by politicians and senior bureaucrats is treated as if they have broken the law and a number have lost their jobs. Ultimately, this can be traced to the view that these are people who are expected to serve as role models. Rod Phillips, the Ontario Cabinet minister who took a vacation in St. Barts over the holidays, lost his Cabinet position; he was only one of many politicians or bureaucrats whose travel was subsequently revealed and most of them experienced some form of internal penalty. In Phillips’s case, the real reason for anger is probably because he tried to deceive people that he was in Canada by having his staff post videos on social media and his website purportedly showing him in Canada when he was in fact on St. Barts. In a sense, this is the spirit of the rule of law inverted on its head: they have been penalized for travelling (again, it is not a law), while ordinary people are not.

And Last, but not Least: Government Knows What It is Doing

Although this last element is not exactly a requirement of acceptable and effective law, if people do not trust that government knows what it is doing, the acceptability and effectiveness of law may be undermined. Added to lack of contact tracing, closing of vaccination centres over the holidays and other weaknesses, the failure to be clear about the rules, as in the return to schools in particular, for example, adds to a general sense of dissatisfaction.

It is true that it is difficult to criticize the approaches to controlling the pandemic governments have implemented. One commentator says there is “plenty of evidence that our health authorities have let us down in a number of ways — poor planning, vacillating leadership, political lethargy, politicized decision-making, appalling communications” and that there should be more openness to alternative approaches (see here). And it is also true that we have been trapped in the binary of whether we should emphasize getting the economic back on track or taking a blunt approach to emphasize recovery (“short term pain for long term gain”) and in Canada, certainly Ontario, we have tried to bridge the binary by doing both.

Of particular interest in the Law Society of Western Australia teaching module, is that the examples it provides of inadequate laws may seem familiar, suggesting that there are certain attempts to use law that may be more difficult than others. For example, it cites driving while using a cell phone as an activity that is difficult to enforce a law against and increasing the penalties in Western Australia did not seem to change that. The module’s explanation: “It may be worth reflecting on what are the community values about the use of mobile phones while driving?” (See teaching module.) However, perhaps the problem lies in the difficulty of enforcement when people are addicted to a particular behaviour. When the law prohibits it, the conduct may go “underground”, as it did during Prohibition.

To some extent, governments face the same problem with Covid-19 regulations, which ask people, some cohorts in particular, to change their behaviour considerably. Although to some extent frustrating, it may not be that difficult for some people to stay at home or restrict their behaviour, particularly when jurisdictions were more open over the summer. For others, especially younger people, it may be more difficult since their lives may be highly intertwined with others. For people used to large gatherings, especially people who believed they were not especially susceptible to contracting Covid-19, giving up their social lives seemed a major curtailment. Thus the government identified large gatherings as a source of Covid-19 spread. However, while outdoor gatherings may be reported (and winter weather in most Canadian jurisdictions has meant they are less likely to occur), indoor gatherings are another matter. Despite appeals from the government for people to celebrate the December/January holidays within their households, it is difficult to control whether people followed the order to minimize social gatherings or the advice about how to spend the holidays.

Of all the characteristics of law that make it most acceptable and effective, probably the most important is that people believe it to be fair. This does not mean the other characteristics are not important: they are because they contribute to a perception of fairness. The one characteristic I have not discussed is one that is implicit throughout the discussion in this post and it, too, is related to fairness: the laws must be tailored to respond to the problem they are intended to address.

For example, while Covid-19 outbreaks have occurred in many sectors, certain kinds of workplaces have been the source of outbreaks throughout the pandemic. Some experts believe that this is because workers lacking paid sick days go to work even when they are sick, including have symptoms of Covid-19. Thus it is hard for some people to understand why the government does not target this particular problem by providing sick pay. (The federal government has instituted a Recovery Sickness Benefit program, although it is limited.) For a particular segment of the community, an alternative or in addition to some of the current provincial practices is to provide sick pay. Paid sick leave could reduce the outbreaks in warehouses and manufacturing plants and among certain groups of health care workers, for example, and thus also reduce the subsequent community transmission. (See here for a review of what happens when workers lack paid sick days.)

As to the question of whether it is the laws or people’s conduct that has led to an ongoing pandemic, the most likely answer is both. There are people who for whatever reason do not follow the rules, especially by participating in large family gatherings. The new stay-at-home order targets that conduct. But its efforts to target workplaces most likely to result in outbreaks is clumsy, since they are allowed to operate, sometimes with restrictions. Wearing masks and physical distancing do seem to have a major impact (despite increases in cases), but these are difficult to enforce. Those who manage grocery stores have little authority to prevent people refusing to wear masks to enter the store.

In the end, it is up to government to be clear about why it is taking certain steps and to ensure those steps are addressing verifiable problems. And it is up to members of the public to be realistic about the fact that just about everyone is vulnerable to contracting the virus if they do not take steps to diminish contact with others when they can.

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