When it comes to the COVID-19 pandemic, forget a dystopian future.

The future is now. It is hard and growing morbidly harder every day.

Governments abroad and at home have been asking us to stick with the program. Follow the advice of our public health officials. Draw upon our emotional intelligence to consider the impact on the vulnerable of our actions or failures to act.

But not everyone is listening.

Let’s face it, when it comes to following rules, some contrarians without a cause or a conscience never do. Some, perhaps in a twisted assertion of religious belief over God-given intelligence, are bold and blind in a holy silo of ignorance. Other rule breakers just seem oblivious, as if they live in a bubble where distinguishing six feet from six inches makes no difference.

Premier Doug Ford, like Prime Minister Justin Trudeau, has made it clear he is prepared to do what it takes to control the spread of the severe acute respiratory syndrome coronavirus 2
(SARS-CoV-2) that causes coronavirus disease (COVID-19).[1]

On March 17th, by declaring a state of emergency or “that an emergency exists throughout Ontario…”[2] (and then extending that declaration), the Premier provided unmistakable proof of his willingness, and that of his cabinet, to take immediate action to “prevent, reduce or mitigate” the danger connected to the COVID-19 global pandemic, “a danger of major proportions that could result in serious harm to persons or substantial damage to property”[3], in a situation where relying on the normal workings and resources of day-to-day government would result in serious delays in addressing that danger.[4]

Relying on the declaration and the authority under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 [“EMCPA“] [5], the Premier and the rest of the Cabinet[6] are making orders for Ontarians to follow, intending to combat the pandemic and insulate the people from COVID-19 risks.

And where orders are made, enforcement (or at least the threat of it) against the disobedient is close behind.

Section 7.0.11 of the EMCPA states:

7.0.11 (1) Every person who fails to comply with an order under subsection 7.0.2 (4) or who interferes with or obstructs any person in the exercise of a power or the performance of a duty conferred by an order under that subsection is guilty of an offence and is liable on conviction,

(a) in the case of an individual, subject to clause (b), to a fine of not more than $100,000 and for a term of imprisonment of not more than one year;

(b) 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

(c) in the case of a corporation, to a fine of not more than $10,000,000. 2006, c. 13, s. 1 (4).

Separate offence
(2) A person is guilty of a separate offence on each day that an offence under subsection (1) occurs or continues. 2006, c. 13, s. 1 (4).

Increased penalty
(3) Despite the maximum fines set out in subsection (1), the court that convicts a person of an offence may increase a fine imposed on the person by an amount equal to the financial benefit that was acquired by or that accrued to the person as a result of the commission of the offence. 2006, c. 13, s. 1 (4).

Exception
(4) No person shall be charged with an offence under subsection (1) for failing to comply with or interference or obstruction in respect of an order that is retroactive to a date that is specified in the order, if the failure to comply, interference or obstruction is in respect of conduct that occurred before the order was made but is after the retroactive date specified in the order. 2006, c. 13, s. 1 (4). [italics represent my emphasis]

In theory, any of us are potential COVID-19 Offenders.

Clearly, the risk-averse, compliant and/or disciplined among us are far less likely candidates for COVID-19 Offender status under s. 7.0.11 than the low-dopamine rebels without the gifts of empathy and forward-thinking.

Whatever your personality, here are some considerations for a potential violation of Ontario’s emergency orders during the COVID-19 pandemic:

• The nature and number of potential offences parallel the nature and number of the emergency orders (and the variety of prohibitions within each order).  Cabinet prohibited selling or offering to sell “necessary goods” at an unconscionable price.[7] Consequently, because of s. 7.0.11(1), it is an offence if someone fails to comply with that order by selling or offering to sell necessary goods at an unconscionable price. Cabinet prohibited gatherings of more than five people “for the purposes of conducting religious services, rites or ceremonies”.[8] Accordingly, holding a religious service with ten people is an offence since it represents a failure to comply with the order limiting such gatherings to five people. You get the idea.

• The mix of emergency orders varies over time. Older orders can be (and have been) varied to address growing COVID-19 concerns. New orders are made to address emerging implications of the pandemic. Some orders, if not extended, may expire.  In the earlier part of yesterday, for exercise, I ran alone at a local high school track where no one was around, in compliance with emergency orders. If I were to do that today, I would be committing an offence under s. 7.0.11(1) because now there is an order prohibiting that conduct.[9] The upshot is emergency orders do and will change over the course of a crisis – staying informed about the orders means you will know what offences you might be at risk of committing.

• It is not enough for someone to avoid breaching emergency order herself. She must avoid interfering with or obstructing someone who is carrying out action authorized by any order made under s. 7.0.2(4) during the state of emergency. One could imagine a potential offender, upset about the construction of an emergency COVID-19 shelter in his neighbourhood, grabbing the worker’s tools to prevent him from working on the project.

• These offences are not crimes. They are provincial offences arising from provincial legislation and presumably a lawful way for Ontario to enforce provincial concerns. Someone found guilty and convicted under s. 7.0.11(1) will not have a criminal record (but if police search available databases for such a conviction in the future who can say that they won’t find it). Notably, however, because these are not true crimes requiring proof of some form of criminal intent along with the prohibited action, a successful prosecution will not require the government to prove that the alleged offender “deliberately” or “knowingly”violated the emergency order.

• The Provincial Offences Act, R.S.O. 1990, C. P.33 [“POA“] provides the procedural rules for prosecuting EMCPA offences (as it does for prosecutions under “everyday” provincial statues like the Highway Traffic Act. While a police officer might very well be the one “writing up” someone up for this kind of offence, any “provincial offences officer” (which includes other enforcement officers beyond police) is lawfully entitled to “ticket” an alleged violator with a certificate of offence (under the less-serious prosecutorial path in Part I of the POA) or with a summons (commonly associated with more serious offences prosecuted under the Part III of the POA where a sworn charging document, an information, is prepared and filed with the court).

• The potential punishments are serious. For example, regular people (i.e. not a corporation or an individual who is a corporate officer/director) who offend are liable to a fine, jail or both, and the maximums are significant ($100,000 fine, 1 year imprisonment). If the offence involves exploitative profiteering for the offender’s financial benefit, a court can order a super-fine above the stated maximum to effectively tax back all of the tainted profit.  However, if the matter is prosecuted by the Part I POA procedure for less serious allegations, the worst case punishment is essentially the “set fine” of $750.00 for failing to comply with an order during a declared emergency.[10]

• Continuing conduct over more than a single day will not be considered a single, continuing offence but a separate offence for each day on which it occurs. Consequently, the offender who, for example, insists on breaching an emergency order on three consecutive days and is facing a fine is setting herself up for three separate fines.

• Enforcement is starting to happen. It is not a hollow threat. Since unsanctioned drug dealing (government approved beer, liquor and cannabis stores were determined to be essential) was not protected as an essential business (go figure) under Ontario Regulation 82/20, Order Under Subsection 7.0.2 (4) — Closure of Places of Non-Essential Businesses, police charged an accused with trafficking under the Controlled Drugs and Substances Act and with an offence under s. 7.0.11 of the EMCPA. Guelph Police Service ticketed a local business owner for the same alleged EMCPA offence.

This is a novel and serious time.

Still, this period of emergency powers exercised in a global pandemic has not robbed us of recognizable enforcement measures or the rule of law.

_____________________

1 https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it

2 Section 7.0.1, EMCPA

3 Subsection 7.0.1(3)1., EMCPA

4 Subsection 7.0.1(3)2.(i), EMCPA

5 Under subsection 7.0.2(4) of the EMCPA, the Premier with the rest of the Cabinet may order, among other things: (a) restrictions or prohibitions on travel or movement to, from or within any specified area, (b) establishment of facilities for the care, welfare, safety and shelter of individuals, including emergency shelters and hospitals, (c) closing of any place, whether public or private, including any business, office, school, hospital or other establishment or institution, (d) facilities, including electrical generating facilities, to operate as is necessary to respond to or alleviate the effects of the emergency, (e) using any necessary goods, services and resources within any part of Ontario, and (f) fixed prices for necessary goods, services and resources and prohibitions on charging unconscionable prices in respect of necessary goods, services and resources.

6 https://www.ontario.ca/page/meet-premiers-team; https://en.wikipedia.org/wiki/Executive_Council_of_Ontario

7 Ontario Regulation 98/20, Order Under Subsection 7.0.2 (4) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9  – Prohibition On Certain Persons Charging Unconscionable Prices for Sales of Necessary Goods (https://www.ontario.ca/laws/regulation/200098). Section 7 of the EMCPA defines “necessary goods” to include “food, water, electricity, fossil fuels, clothing, equipment, transportation and medical services and supplies”

8 Ontario Regulation 52/20, Order Under Subsection 7.0.2.(4) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 – Organized Public Events, Certain Gatherings (https://www.ontario.ca/laws/regulation/200052)

9 Ontario Regulation 104/20, Emergency Order Under Subsection 7.0.2 (4) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 – Closure of Outdoor Recreational Amenities (https://www.ontario.ca/laws/regulation/200104)

10 Section 1 of the POA says that the “set fine” means the amount of fine set by the Chief Justice of the Ontario Court of Justice for an offence for the purpose of proceedings commenced under Part I or II. The set fine is $1,000.00 for obstructing someone exercising a power or carrying out a duty under an emergency order. (https://www.ontariocourts.ca/ocj/how-do-i/set-fines/set-fines-i/schedule-4-0-1/)

Photo Credit: https://www.livescience.com/new-coronavirus-images.html