Ontario’s COVID-19 Discretion Tragedy

Ontarians watched with a mix of horror and confusion on Friday as Premier Ford and medical officials announced what could only be described as drastic measures to, apparently, curb the spread of COVID-19 and its related variants. While the government has flip flopped on these measures since, and it is unclear if further changes are coming, these measures would have (and as I will point out, probably still do) significantly empower the police to enforce Ontario’s stay-at-home (SAH). These measures raise a whole host of enforcement concerns, ones that should worry all Ontarians.

In this post, I briefly review the state of affairs as they stand. I then make two general comments about the recent measures. First, the measures demonstrate why discretion is presumptively risky, even if a modern system of government requires it to function. Second, the measures demonstrate why a relatively thin version of the Rule of Law is a necessary but insufficient condition for a society that respects civil liberties. Instead, the Ontario example shows that a populace concerned with legality will sometimes act as a better check on discretionary power than the courts. This is a highly desirable feature of a society built around the Rule of Law.

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On April 7, the Ontario government announced enhanced measures “in response to the rapid increase in COVID-19 transmission, the threat on the province’s hospital system capacity, and the increasing risks posed to the public by the COVID-19 variants.” The so-called SAH applied province-wide, and required “everyone to remain at home except for essential purposes, such as going to the grocery store or pharmacy, accessing health care services (including getting vaccinated), for outdoor exercise, or for work that cannot be done remotely.” The SAH also had some measures dealing with retail opening and staffing.

The province upped the ante last Friday, when it announced enhanced measures adopted in relation to the SAH to fight COVID. There were a few iterations of these measures, and the timeline is somewhat confusing, but below is my attempt to summarize the happenings (I do not include, here, any information about the interprovincial travel measures or the so-called “playground” measures:

  • On Friday, the provincial government gave police the power to require any individual not at home, on the street or in their cars, to provide the reason that they’re out and provide their home address. Put differently, the police had the power under this order to stop anyone randomly.  This rather surprising delegation of power, when it was announced by the Premier and medical officials, was not cabined by any limiting principle; ie, to many of us on Friday, it did not appear that the police even required “reasonable and probable grounds,” a constitutional standard, to stop anyone.
  • In response to the announcement, various police forces across the province intimated that they would not enforce the new rules, to the extent that they required random vehicle or individual stops (see ex: Waterloo Regional Police). The Ontario Provincial Police, however, seemed to suggest it would enforce the random stops (see here).
  • On Saturday, the relevant text of the regulation was released (as an amendment to O. Reg. 8/21 (ENFORCEMENT OF COVID-19 MEASURES). The amended regulation, at s. 2.1, specifically gave the police the power to require information from an individual “not in a place of residence.” This information included an address, as well as “the purpose for not being at their residence, unless the individual is in an outdoor or common area of their residence.”
  • On Saturday evening, Solicitor General Sylvia Jones announced that officers would no longer be able to stop any pedestrian or driver to ask why they’re out or to request their home address. The new regulation makes two important changes:
    • The range of information the police could collect in a stop in which they have reasonable grounds was seemingly expanded by the regulation (adding date of birth, for example).

As of moment of publication, this is where we stand. I turn now to analyzing this series of events in the two frames I have set out (1) discretion and (2) the Rule of Law.

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Modern government is built on discretion. The insight here is simple. Legislatures cannot make all the laws they need to make to cover all policy or legal problems that exist in a modern society. As such, legislatures in Canada have chosen to take advantage of the supposed expertise of administrative actors, delegating power to make and enforce laws. They have also, relatedly, delegated power to Cabinet to adopt law quickly through regulation. The finely wrought legislative process will not always be reactive or quick enough to deal with problems, and so delegation is a way to create a more responsive body of law.

This is the positive side of the story.  But as KC Davis famously argued in his text Discretionary Justice: “…every truth extolling discretion may be matched by a truth about its dangers. Discretion is a tool only when properly used; like an axe, it can be a weapon for mayhem or murder” (25). While it is important that a modern system of government can individualize justice, as Davis put it, there are costs to doing so.

The costs can be minimized, but often aren’t. Legislatures in Canada often delegate power to various recipients in the broadest fashion possible, and they generally do not fulsomely analyze the content of regulations adopted, after the fact. There are the famous “public interest” delegations that are legion in the statute books, for example. These delegations cannot be broader, in part because they ask the recipient of the delegation to decide themselves whether the public interest is met by a particular exercise of discretion.

Now, there is not a strict dichotomy between “rule” and “discretion,” but rather discretion starts where rules “run out”: “The problem is not merely to choose between rule and discretion, but…to find the optimum point on the rule-to-discretion scale” (15).  Davis’ idea of “structured discretion” is relevant here. To Davis, “[t]he purpose of structuring is to control the manner of the exercise of discretionary power within the boundaries” [97].  While Davis’ discussion is focused on the American rule-making context, the idea is equally relevant to us: legislatures and administrators themselves can choose, in certain circumstances, to confine their discretion through targeted delegations, policies and guidance documents, and precedents. This does happen: one might look at Ontario’s Emergency Management Act, particularly section 7.0.2, to see how a delegation can be cabined, even weakly (delegation to make orders in a declared emergency).

The problem with discretion, however, is that the systemic incentives tend towards permitting wide discretion that can be abused. Legislatures that are delegating because they cannot make laws themselves are probably not inclined to truly structure discretion: the Ontario emergency legislation is an example. Administrators, police officers, and other actors have no real incentive themselves to exercise their discretion within the bounds of law (except a political one, which I will note below). In fact, the institutional pressures of their own administrative settings may encourage ad hoc reasoning and decision-making, relying on broad delegated authority, in order to accomplish what they see as their policy goals. This is all hypothetical, of course, but the point is that when any government official is exercising delegated power, there is no real reason for them to exercise discretion properly (whatever that means in context), and especially so where the possibility of ex post judicial review is unlikely, or the strength of that review will be highly deferential.

In certain administrative contexts, abused discretion (in the notional sense, not the legal sense) carries grave consequences. Expropriation of land is an example. The police are another example. Police carry any number of discretionary powers, and police are constantly up against the rights and dignity of individuals. Recent events illustrate that police discretion—to detain someone, to arrest them, even to shoot them—can be easily abused based on irrelevant characteristics, such as race or class stereotypes. We have seen this story too many times to say that discretion is some inherently benevolent legal concept.

This is what made Ontario’s original order so surprising. A system of random stops is positively unstructured discretion. While, in normal circumstances, the delegation of legislative power cannot be constitutionally impeached, the legislature does not have the power to delegate a power to administrators or police to breach the Constitution: see Vavilov, at para 53. In this case, this unstructured discretion is likely unconstitutional (see here), even if it is validly delegated. This isn’t surprising: the discretion is so broad that the possibility of unconstitutional implementation is too great to bear.

Some might say it is a vindication of the police that many decided not to enforce the order. But this is simply not enough, for two reasons. First, not all police chose this path: as I mentioned above, the OPP had every intention, it seemed, of enforcing the original order as written. Secondly, the point is that there is no legal incentive (except the political one I mention below) that mandated the police to opt out of enforcing these measures. In the strictest positivist perspective, actually, until a court has rendered the delegated power or a government act unconstitutional, the law must be enforced. But as I will note below, there are other controls for potentially unlawful government conduct.

Additionally, one might think that the refined regulation is better. After all, it does seem to incorporate some “structuring” language: it includes the “reasonable and probable ground” language. This may insulate it from constitutional scrutiny, but that does not mean that the discretion is proper from a public governance standpoint (rather than a strictly legal one). This is barely structured discretion (much like the emergencies legislation). As Nader Hasan points out, on close reading of the regulation, it does appear that the police can stop people that they subjectively believe have violated certain rules, and then obtain any information they wish. The regulation compels an answer if the police can clear the “reasonable cause” threshold, which they likely could in most cases, given that if one is outside, they may be about to attend a prohibited public gathering, or about to return home from one. This could then lead to other information gathered about potential criminal activity that otherwise could not be obtained but for the pretense of the “COVID stop.” Because it is up to the police themselves to form the reasonable suspicion, there are many potentially irrelevant factors that could infect the discretion.

This is not to say that all police will always abuse their discretion. Many police officers perform their roles honourably, and I bet many officers did not want or ask for the powers that were granted to them. But, nonetheless, the Ontario example demonstrates the problem with discretion. There is no incentive for legislatures or the Cabinet to heavily structure discretion. In this case, the government obviously decided that an unfettered police power would best accomplish its goals. As citizens, we should be worried that this was the government’s first choice—not only because it is unconstitutional, but because of the potential error rate and abuse.

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Finally, I want to say a few words about what this saga tells us about the Rule of Law.

There is a vibrant, old debate about what the Rule of Law accomplishes. Historically, some have said the Rule of Law is the rule of courts (Dicey is often said to represent this view: see Justice Abella & Teagan Markin’s recent piece). Others have suggested that the Rule of Law is much broader, encompassing substantive guarantees (see Lord Bingham’s book). Without taking a side in this debate, there is a subsidiary question: whose responsibility is it to preserve the Rule of Law?

Clearly, the courts play a vital role in preserving the Rule of Law. This is a point that requires no citation. We need a system of adversarial courts, and such a system is probably constitutionally prescribed. Moreover, we need a system of courts to police the boundaries of discretionary action. Courts ensure that administrative action falls within the bounds of the law, and in Canada, this is where the bulk of control over the administrative state occurs. Most reasonable people agree that we need this system of courts.

But these courts are only a necessary condition for legality to flourish. More is needed. Most notably, as Dicey notes (and as Mark Walters explores in his work), a Rule of Law society cannot depend on formal legality as the only requirement. What is required is a society of individuals who embody a “spirit of legality.” People need to jealously, but within reason, guard their constitutional rights that are protected in positive law. But they also need to see the Constitution as a floor rather than a ceiling. Troublesome discretionary acts can be perfectly constitutional but be undesirable because they increase the error rate of enforcement or liberate government actors to an unacceptable degree. What is required is a vigilant population, especially in an emergency situation where civil liberties might be the first legal rights to fall by the wayside.

Many people, on this front, acted appropriately in calling out the Ford government for its adoption of the first tranche of measures on Friday. It was this mass outcry, I think, that forced the government into walking back its original measures. This public outcry was essential. There was little chance (apart from an injunction) that any litigant would be able to stop the enforcement of these measures in time. In this case, it was a concerned population that forced the government to change its laws. One should never underestimate the power of political controls in hemming in potentially unconstitutional government conduct. Any society that says it is bound by the Rule of Law will be incomplete if it does not encourage vigilance and skepticism regarding government acts.

This is not to say that the balance has been appropriately struck throughout the pandemic. I’m not sure, from a policy perspective, if the SAH had the desired effect, for example–despite the cost it exacted in civil liberties. But we have to celebrate wins when they happen. Such is life.

Author: Mark Mancini

I am a graduate of the University of New Brunswick Faculty of Law (JD) and the University of Chicago Law School (LLM). I am the National Director of the Runnymede Society, a national law student organization dedicated to debate on issues relating to the Rule of Law, constitutionalism, and individual liberty. I clerked at the Federal Court for Justice Ann Marie McDonald. I have interests in administrative law broadly, with specific interests in substantive review of administrative interpretations of law. I am also interested in law and economics. Any views expressed on Double Aspect are mine, and do not represent the views of the Runnymede Society.

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