[Simon Archer] Monday, 13 April 2020


It is Easter Sunday in Toronto; in our COVID timeline, we’re about four weeks into the “lockdown”. The last time I posted was April 1, about two weeks ago. The experience of time has slowed down considerably as the lockdown conditions continue, now into week five.

Every news item and many conversations start with the daily COVID statistics. Anthropologists might call it some kind of language ritual that isn’t really about the COVID statistics at all: like talking about the weather as a greeting. You might say something about the shape of the curve or someone else’s curve, and there are ranges of expected response. “Is it me or is the curve flattening”, “Yeah, but we’re not out of the woods yet”.

When all this started, things happened so quickly, it was hard to internalize the concepts and to digest the rate of policy response, it came so fast. And even at that pace, it was considered slow. So, at that time, it seemed useful to measure time by the passage of the state’s response to the emergency.

Not so any more. Now time is marked by curve-watching. As of today, Google’s dedicated statistics page says there are around 1,200 new cases a day in Canada – a number that has remained steady for about a week. About 7,000 are in Ontario, more in Quebec and a lot fewer in British Columbia. In Toronto, 2,225 cases are reported, more than all of BC. 

Those numbers are sort of meaningless without some kind of comparative context, and the relevant context depends on what you’re looking to explain. According to epidemiologists, measuring the spread is better understood in absolute numbers, but measuring its impact after the fact, better by per capita numbers. These kinds of questions are far afield from my normal reading and as a result a delight to get a little education in. I got to have a chat with a neighbour who is actually a medical epidemiologist and got a short tutorial. He doesn’t do infectious diseases, but suggests many of the tools are the same. It may be then that the now-famous Imperial College study that gave us a frame for our policy responses (mitigation/minimum social isolation versus full social isolation/lockdown) is based on modelling the spread of the virus without any really good data sets to work from, and tested models of how it spreads. It was based on best available and was a good job with what it had, but could be very “wrong”. Apparently, estimating the value of the coefficients in the variables is real guesswork until they have more experience in tracing the virus through populations.  All this seems surprising to me given the previous experiences with COVID viruses in living memory, but perhaps I’m surely not understanding the science of how these things are measured and tracked. He also pointed out some of the frailties in the measurement tools and the importance of testing and tracing widely (and not just counting cases in hospitals).

Today, the spread here is following a similar pattern to other northern countries, but better than the US, UK and France, the ones we’re normally comparing ourselves to. Within the country, the Western provinces have experienced slower spread and fewer cases. We all toss around theories of why these differences might happen – did governments act sooner or better, do less populous areas spread slower than more populous, did carriers arrive earlier or later, is everyone counting the same things, and so-on. (Some of the spikes you see on the various curves are changes in counting methodologies.) But information shifts too quickly to have stable understandings of the situation, at least in my layperson’s understanding.

There are a couple of updates on state responses.

En lieu of structural reforms for ‘after’: Austerity?

The Ontario Premier, Doug Ford, announced that he wanted more testing done (it has been slow here, and it appears that there was not a good program of test-and-tracing put in place, which is needed to really dampen the spread) and he has authorized the acceleration of health care infrastructure construction (temporary health facilities to deal with the coming wave of sick). Ford is a populist in the Trumpian mode, but he has been (perhaps surprisingly) responsible and sober through the crisis.

The most recent one was the announcement of an enlarged “wage subsidy” program of the Government of Canada (March 27, legislation tabled yesterday, enacted today). This expands a program previously announced. It provides employers a payment of up to $847 a week per employee for the period of March 15 to June 6.  Once again it’s possible to be both grateful and a little cynical about that. The subsidy is intended to replace 75% of wages of private sector employees to encourage employers to avoid layoffs and re-hire those already laid off. This is the “freeze the economy” response to the crisis, intended to avoid the worst harms of layoffs and preserve the status quo. It will hopefully have that effect, but it leads one to ask what was good and bad about that status quo in the first place. The government is going to spend historical levels of money on an economic program that will avoid the worst, but do little to change for the better. Everyone has their lists of items to achieve “structural change”, but few seem to be filtering their way into public policy. Perhaps it is still too early – but the fear is, by the time the money is spent on the “freeze” option, there will be a rapid return to the politics of austerity to pay for it all.

Perhaps also importantly, cannabis stores will be permitted to deliver (they were not originally on the list of “essential services”, but provincially-owned liquor stores were).

So, no further promises of fundamental or structural change of the things that might make a long-term difference (but plenty of discussion about the ideas for it). We do, however, get daily briefing from several political levels, from the Prime Minister who has made famous the phrase “speaking moistly” (everyone knew what he meant, but it did sound odd) down to the local Mayor. I think for the most part they are being quite responsible and helpful. There have been increasingly stern tones about social distancing, they have (it seems) been observing the Siracusa principles in using their emergency powers responsibly (including transparency of information and constant clear communication of expectations).

For some reason, we also check in on the briefings south of the border, and of course that is just a whole different politics. (We watch US political news partly for the spectacle of Orange Julius; but also because whatever happens there makes “political space” for the rest of us.) Trump, it seems, has been true to form, dismissing senior bureaucrats and expert advisors, sulking at his treatment by the lamestream media, racializing the “Chinese virus”, dismissing the WHO as partisan, putting incompetent family members in charge of important portfolios and generally using the whole episode as an opportunity to campaign and indulge himself. He seems to be getting ready to blame state governors (of both political factions) for the effects of the pandemic (this is Jared’s detail, it would seem), and is developing new social media channels to reach his intended audiences (perhaps in part now that rallies in stadiums are not permitted). We cannot tell who voted for what in the bailout deal that went through Congress, and there is some very large discretionary spending in the hands of people who haven’t displayed a lot of integrity the past three years. Everyone wonders what the effect will be on the fall election in the US. Surely, Biden’s to lose? It feels like a sort of kleptocratic, post-liberal democratic politics. There’s a sort of symmetry in the thinking: on one hand, stave off the worst effects of the pandemic with a “freeze the economy” option of state action, and on the other, electing anyone who isn’t Trump as a sort of “freeze liberal democracy” option in politics. Both seem simultaneously necessary, relieving and not nearly enough to make sure it doesn’t happen again. I remember thinking the same thing the days following the June 23 Brexit referendum, when most of the City of London (where I was visiting) was in shock at the result, and people were speaking of the need to deepen integration with the EU. There’s a Karl Polanyi quotation about liberal politics of this sort, which is not exactly à propos because he wasn’t speaking of war/pandemic/immediate crisis moments, and so may sound provocative, but here goes: “The victory of fascism was made practically unavoidable by the liberals’ obstruction of any reform involving planning, regulation or control.” (K. Polanyi, The Great Transformation [1944], 257) Recall last week or two weeks ago when Fox News featured several conservative talking heads saying they’d rather old people died than people be ordered to stay at home and economic activity abate, even temporarily. 

Emergency powers.

I previously mentioned the emergency order of the Mayor of Toronto, and the anxieties we sometimes have about the use of those powers. We’ve had a bit of time now to bone up our understanding of what emergency powers are and how they are used. This is what that emergency order actually looks like.  It turns out there are United Nations norms on how emergency powers are to be drafted and used. They’re kind of what you’d expect.

A declaration of emergency has many dimensions, but the one we dig into in my business is the legal mechanism of it. Just mechanically, a declaration allows a government to access a set of extraordinary powers which allow it to act quickly and easily to deal with a crisis. The Province of Ontario has authority to do so under Ontario’s Emergency Management and Civil Protection Act (EMCPA). This law sets out the (strict) conditions that must exist before the Province can declare a state of emergency. Essentially, the government must determine that the resources normally available to it are not sufficient to manage the emergency without undue delay. The EMCPA also sets out the special powers that the Ontario government can access once an emergency is declared, such as:

  • The Premier can control certain aspects of municipalities’ administration or facilities that would normally be under the control of municipal government.
  • Cabinet can override or even re-write existing legislation without the involvement of the legislature. This power is to be used solely for the purpose of providing aid to victims of emergencies where existing legislation is not sufficient.
  • Cabinet can make emergency orders that allow it to do things like close any public space, evacuate individuals, regulate or prohibit movement to, from, or between areas, or establish emergency facilities, among other things. The emergency orders in Ontario that closed bars, restaurants, concert venues, and indoor and outdoor recreation areas, among other places, are examples of these.

However, the Ontario government has also made many more orders during the current pandemic that target a wide range of issues: traffic control, working conditions of employees in the health care sector, price-gouging on necessary goods, and requirements for individuals to give personal information to police when asked, among others. A full and updated list of the orders can be found on the provincial government’s Emergency Information page.

The EMCPA also allows municipalities to declare emergencies within their own borders. This is what Toronto did. When a municipal emergency is declared, the head of the municipality is given the power to make any orders that are not “contrary to law” to carry out the emergency plans that all municipalities are required to have in place. These plans deal with how the municipality will provide necessary services during an emergency.

The Government of Canada has not declared a national state of emergency under the Emergencies Act. If it did, it would also have access to special powers for the duration of the state of emergency, including the ability to make orders along lines similar to those provided for in Ontario’s EMCPA. The federal government has, however, used powers available under other laws to make extraordinary orders during the pandemic (see, for example, the mandatory self-isolation order and travel bans made under the Quarantine Act).

I spent some time this spring preparing a case that examined the emergency power doctrine in our constitution. The story contains a small irony, I suppose, so I’ll tell it. A couple of years ago the federal branch of government passed the Greenhouse Gas Pollution Pricing Act, which was its response to the Paris 2015 commitments. The GGPPA puts a price on carbon, and permits provincial jurisdictions to opt out of that pricing mechanism if they have their own system for pricing carbon of equivalent effect. The provinces most reliant on carbon extraction and sale (Alberta, Saskatchewan, Ontario) challenged the constitutionality of it: essentially, a jurisdictional dispute. One of the arguments raised in all this was whether a constitutional doctrine called the “emergency branch” of the “peace, order and good government” head of power of the federal government could justify the legislation which otherwise trods on provincial jurisdiction over “property and civil rights”. This tale is getting a little too long already for the punchline, but basically, our client wanted to argue that climate change, and in particular Canadian denialism of it rooted firmly in the energy and extraction industries, is an “emergency” that warrants the use of the extraordinary power under the constitution. The last time this power was considered by the Supreme Court it was the Anti-Inflation Reference back in the 1970s, when wage and price (but mostly wage) controls were imposed in the country in an effort to fight what was then considered an inflation emergency. Prior to that, the power was mostly considered in cases in and around World War II. The difficulty with the GGPPA is of course is climate change is a long, slow and inexorable emergency, and not like the one we are currently witnessing, although between climate change and pandemics, our polity may have met its match. The irony is, I suppose, that the climate change emergency is an emergency, and by all accounts going to be the worse one for us, but because its effects are so long coming, our sense of emergency isn’t, politically, as engaged.


There’s a recently published novel that provides a hypothesis not unadjacent to some of the themes in this post, called Agency by William Gibson. He postulates a post-pandemic, post-climate crisis politics and relates it to existing threads. I won’t spoil it for you – except to say the City of London is exposed for the money laundering capitol of billionaire oligarchs it surely needs to be exposed as – but if you’re out of reading material, worth an afternoon read.

Simon Archer | Toronto | 13 April 2020

Published by pzumbansen

law professor.

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