Posted on Thursday, April 23 2020
The response to COVID-19 has many legal elements but it also raises ethical and philosophical issues. There is an age-old dispute in legal philosophy between “legal positivism” and “natural law”. In a nutshell (and with apologies to legal philosophers), positivism is the view that law is nothing more than the law on the books, i.e. the law that has been promulgated by duly authorized legislative authorities. In contrast, natural law espouses that law must contain some moral content, be it religious or some other higher principles (e.g. human rights). This was brought home to me by a sudden spat in Ottawa over the propriety of having a beverage in your driveway with your neighbour, at a suitable distance.
On April 14th, Ottawa’s Associate Medical Officer of Health told Ottawans that they could not talk to their neighbours over the fence or have a beer in their driveway with friends. In his words, these were “loopholes” in the social distancing rules that Ottawans were wrong to try to exploit.
The reaction by usually docile Ottawans was swift and harsh. The next day, Ottawa’s Chief Medical Officer of Health Dr. Vera Etches and Ottawa Mayor Jim Watson quickly “clarified” or rather denounced these remarks. The Mayor said that “If you and your neighbor are having a beer or a lemonade and you’re at the end of your driveway six feet apart, two metres apart, then enjoy.”
This spat exposed some very serious issues about the Rule of Law and the limits of public authority.
In “Is ‘a beer in the driveway’ a slippery slope to quarantine anarchy?” Globe and Mail Health Reporter André Picard wrote:
The past few weeks have seen the imposition of sweeping restrictions on our liberty, new social norms and even the creation of snitch lines that once existed in the most repressive regimes. People have given up much of the freedom we see as sacrosanct in a liberal democracy with little complaint. Lives are at stake, after all. We all have to do our part to “plank the curve.”
But if we want the rules to be respected, rules have to make sense.
When people flagrantly defy clear rules and endanger public health, bring down the hammer. Mass gatherings and parties are verboten. Nobody is going to have much sympathy for the college kids who had a raucous party that resulted in each of them getting $1,546 fines.
But what purpose does it serve to slap a homeless person “lingering” on a park bench with a $700 fine? Or giving a beleaguered parent with two toddlers an $880 fine for straying off a path onto the grass in a city park? People have been fined for walking their dogs alone. For stopping and chatting because they were not the requisite two metres apart. For opening stores that were not deemed “essential services” when that designation is quite arbitrary.
We talk often about the Rule of Law but this spat over having a beer in your driveway or playing with your kids in the park brings the Rule of Law down to the street level.
In the Quebec Secession Reference,  2 SCR 217 at para 71, drawing on the Manitoba Language Rights Reference,  1 SCR 721,the Supreme Court identified three elements of the Rule of Law as an unwritten constitutional principle:
. . . first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, . . "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order".
A third aspect of the rule of law is . . . that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance.
It is this second element of the Rule of Law that is raised by normally Rule of Law-respecting Ottawans.
Canada’s vision of the Rule of Law includes both positivist and normative elements. Respect for the Rule of Law is not simply respect for “the rules”. It involves respect for “the rules” with a normative basis for them.
The citizens revolt against having “a beer or a lemonade” in one’s driveway shows that “common sense” and “community” are important normative principles in the Rule of Law in Canada.