Rule by Government Press Release & Legal Status of Recommendations

The Ontario government has been making orders under the Emergency Management and Civil Protection Act (EMCPA) to address the coronavirus epidemic. It has quickly advised of the orders through press releases on the Ontario government news website. The orders take the form of regulations (and orders in council and sometimes only orders in council). However, it has not always been as quick — or quick enough — to post the regulation itself under the EMCPA. This is a problem.

The rule of law requires that we know which obligations have legal status and that the law is accessible. We can expect people to know that some actions are against the law just because they live in Canadian society: it is illegal to kill someone, for example, although the fine points (such as killing in self-defence or whether it is premeditated) may require more consideration to reach an appropriate assessment. We don’t expect people to know some legal requirements, such as conditions imposed on building an extension on your house, although generally, we know there are probably some requirements and that we need to find out what they are. But regardless of whether legal obligations fall into one or more of these (or other) categories of “knowability”, we should be able to find the actual law in statute, regulation or the common law as interpreted by the courts, and not be reliant on government press releases or media reports.

Recognizing circumstances are changing quickly, the public availability of regulations under the EMCPA has not always been what it needs to be. Regulations should be posted under their authorizing statute. I use the essential business orders to illustrate the problem with not maintaining currency with posting, although the point is valid in relation to all regulations and orders in council under the EMCPA (or, of course, any other statute).

On March 24th, the government ordered closure of non-essential businesses (see O.Reg. 82/20). On April 3rd, the government announced it was ordering the closure of additional businesses “effective as of Saturday, April 4, 2020 at 11:59 p.m”. The news announcement links to the business categories that are now considered “essential” and each of the categories links to a more detailed description.

As of this morning (April 7th), there does not appear to be a regulation encompassing this new list; alternatively, the regulation has not yet been posted under the EMCPA, which is its authorizing statute. (To be complete, O. Reg. 82/20 has not been amended to reflect the new list.) There is, therefore, no law that is accessible to the public identifying the new list of essential businesses. And O. Reg. 82/20 has not been revoked.

During the emergency, normal public notification practices have been abrogated. Subsection 23(2) of the Legislation Act, 2006 states,

Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation is not effective against a person before the earliest of the following times:

1. When the person has actual notice of it.

2. The last instant of the day on which it is published on the e-Laws website.

3. The last instant of the day on which it is published in the print version of The Ontario Gazette.

In case there is any confusion, “the last instant of the day a government press release is issued” is not listed among the permitted times.

However, Subsection 7.1(2) of the EMCPA states,

Subsection 23 (2) of the Legislation Act, 2006 does not apply to an order made under subsection 7.0.2 (4) or 7.1 (2), but the Lieutenant Governor in Council shall take steps to publish the order in order to bring it to the attention of affected persons pending publication under the Legislation Act, 2006.

Subsection 7.0.2(4) of the EMCPA provides for the various orders that may be made under the declaration of emergency. Section 7.1(2) allows the lieutenant-governor to “temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government of Ontario; and … if it is appropriate to do so, set out a replacement provision to be in effect during the temporary suspension period only”.

For the change in essential businesses to be effective, the order in council/regulation must have been created. Yet it appears that the government considers announcing it on the Ontario newsroom adequate to make people close their businesses if they had previously been allowed to open under O. Reg. 82/20, which is still in force. It is crucial that while we expect our lives to be different during the pandemic and subject to a wide range of restrictions, how that is done be as consistent with normal practice as possible. In this particular case, failure to post the new regulation and to revoke the previous regulation, O. Reg. 82/20 is counterproductive and confusing.

The EMCPA provides for fines and imprisonment. Section 7.0.11 provides for “a fine of not more than $100,000 and for a term of imprisonment of not more than one year” for an individual’ “in the case of an individual who is a director or officer of a corporation, to a fine of not more than $500,000 and for a term of imprisonment of not more than one year”; and “in the case of a corporation, to a fine of not more than $10,000,000”. These are potentially severe penalties. It should not matter whether enforcement officers might initially issue a warning or the actual penalty might be less. People — and their advisors — should be able to access the laws.

Subsection 34(2) of the Legislation Act provides, “A regulation that is filed with the Registrar of Regulations under Part III (Regulations) … is official law.” I am assuming the regulation has been filed with the Registrar, although I do not know. If it has not, O. Reg. 82/20 remains the official law.

If the regulation has been filed with the Registrar, the issue here is not whether the regulations are official law, even if not posted, particularly given the provisions of the EMCPA affecting when a regulation may be effective, but whether they are knowable and whether the government’s newsroom provides a sufficient forum to meet the rule of law. Even with the normal process of publication suspended, it would be wrong, one would hope, for the Lieutenant Governor in Council to believe a press release satisfies the obligation to “take steps to publish the order in order to bring it to the attention of affected persons pending publication under the Legislation Act, 2006“.

[UPDATE] Shortly after posting the above, I see that O. Reg. 82/20 has been amended by O. Reg. 119/20, which states that it was published on E-Laws on April 3, 2020. (Although I had checked every day to see if the new regulation had been posted, I did not see it until this morning.) O. Reg. 119/20 does not itself appear in the order of regulations under the EMCPA. Rather than revoke O. Reg. 82/20 and issue a new regulation O. Reg. 119/20, the government has chosen to amend O. Reg. 82/20, making understanding the new regulation somewhat more complicated. Schedule 2 of O. Reg. 82/20, listing essential businesses, has been revoked and a new Schedule 2 substituted. In addition, Schedule 3 has been added; it imposes certain requirements on essential businesses (such as ensuring “the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act and the regulations made under it”, restricts the use of short-term rentals and forbids open houses, among other things.

O. Reg. 119/20 is much stricter than O. Reg. 82/20 and modifies significantly the operation of businesses surviving from O. Reg. 82/20. It warrants greater prominence by being placed between O. Reg. 118/20 and O. Reg. 120/20 on the list of regulations under the EMCPA, both because of the legal obligations it imposes on those operating on businesses, including significant changes overnight, and making the requirements accessible both for those operating and those wanting to access businesses.

There is one other aspect of Schedule 3 to O. Reg. 82/20 as amended by O. Reg. 119/20 that is troubling. It requires the following:

The person responsible for a place of business that continues to operate shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

This provision makes it mandatory for someone operating a place of business to comply with “advice” and “recommendations”, as well as “instructions”. “Advice” and “recommendations” normally refer to behaviours that, while desirable, are not actually required. Under Schedule 3, however, not following advice or recommendations becomes an offence under O. Reg. 82/20 and thus makes the individual and business liable for the fines ranging from up to $100,000 for individuals, up to $500,000 for directors and officers of a corporation, as well as imprisonment of not more than one year in both cases, and up to $10,000,000 for a corporation as provided for under the EMCPA.

One simple example illustrates how this might work. Medical officers of health and others are now changing their advice about wearing masks, indicating that it might be desirable to do so, when before they were even advising against or at least downplaying the value of doing so. It is possible that a public health official recommends to a grocery store operator that it might be a good idea if they ask shoppers to wear masks when they enter the store. Under Schedule 3, that recommendation is mandatory and requires the store operator to (for example) prohibit entry to people not wearing a mask. Yet it is only because a “recommendation” has been magically turned into a legal obligation that grocers must impose the requirement on shoppers and shoppers must wear a mask if they want to buy groceries in person, even though there isn’t a law requiring people to wear masks.

Advice and recommendations may be very helpful and, indeed accepted, but making them mandatory and thus failure to follow them subject to penalty steps over a line dividing law from good suggestions.

[UPDATED UPDATE] I’ve been advised by a lawyer that they found O. Reg. 119/20 on the e-Laws website unlinked to the EMCPA. I checked and found it is necessary to click on O. Reg. 82/20 there to find O. Reg. 119/20, just as it is now that it is listed (indirectly) among the regulations under the EMCPA.

Comments

  1. Morris J. Winer

    I appreciate that there is someone checking on potential abuses of the emergency regulations in failure of clarity, notification, and enforcement. I note that the Civil Liberty Union and some newspapers have sounded an alarms. Good work!

  2. I agree, Morris, the Canadian Civil Liberties Association has been on top of this, recognizing this is a time for emergency restrictions, but also recognizing the temptation of governments to go beyond the parameters of what is allowed by law.

  3. I deem any legal business which puts food on the table instead of reliance on the dole, “essential”. Instead of dividing work as essential, and non essential, why not allow anyone to work who can demonstrate safety precautions such as physical distancing. It would probably involve letting go some but not all staff or rotating staff. At least the depression of helplessness, idleness, and loneliness would be assuaged for more people. Of course some occupations could not safely be carried on such as barbering, at the present state of knowledge, but a clothing shop or clothing repair shop could be carried on in the manner of a take-out food shop.

    We have now, a devastating national debt. What is going to happen after the cure and prevention remedies? How will the debt be paid for?

  4. “What is going to happen after the cure and prevention remedies? How will the debt be paid for?” I’m going to speculate that similar to FDR’s New Deal, the U.S. “may” embrace U.S. Representative Alexandria Ocasio-Cortez’s advocacy of the Green New Deal. Canada and the rest of the world “may” also do the same. My hope springs eternal.