Josh Dehaas: Doug Ford's rules make no sense, everyone knows it, and the voters won't forget

People can gyrate along with 10 strangers while spewing droplets into the air inside an enclosed dance studio, but you can’t lift well-sanitized weights at GoodLife.

By: Josh Dehaas

In his 1964 book The Morality of Law, Harvard law professor Lon Fuller tells the story of a benevolent king, Rex, who tries to create a legal system that works for his people. Rex starts by attempting to write down a complete set of rules but quickly gets overwhelmed; it isn’t easy to come up with general dictates that fit every situation. Rex scraps the idea of a complete code and starts judging disputes on a case-by-case basis. This doesn’t work either; Rex’s subjects say they need to know ahead of time what they can and can’t do. Rex returns to the idea of creating a code that anticipates every situation, but it turns out so wonky and opaque that his people can’t understand it. Rex loses patience with his ungrateful subjects and creates harsh new penalties including 10 years in prison for coughing and sneezing in his presence. The people revolt.

Fuller sees law as a set of obligations that most people are willing to obey, even if they don’t agree with every single rule, and not just because they worry about being punished for disobeying. Fuller uses Rex to show that people will only accept a set of rules as the law if they conform to certain basic principles: they’re advertised in advance, understandable, capable of being followed, non-contradictory and stable.

I couldn’t help but thinking of Premier Doug Ford when I read about Rex in my jurisprudence class at Osgoode Hall Law School. The COVID-19 emergency has given Ford king-like powers to make public-health rules by cabinet decree. Like Rex, he’s demonstrated that he wants what’s best for his people but he’s struggled to come up with COVID-19 laws that are clear, non-contradictory and stable. If he doesn’t fix this problem, Ontarians could end up revolting … just kidding, docile Ontarians would never actually revolt. But if he doesn’t fix this problem, we might punish Ford at the ballot box.

One of the worst mistakes Ford has made is that so many rules are contradictory. It makes no sense to allow 10 people from up to 10 different households — as the law currently specifies in so-called “hotspots” like Toronto and Ottawa — to gather in their homes while simultaneously banning people from eating with a single family member inside a restaurant that’s taking proper health precautions, as nearly all were.

It’s even more contradictory that my local dance studio can be open, allowing people to gyrate along with 10 strangers while spewing droplets into the air inside an enclosed space, but you can’t lift well-sanitized weights at GoodLife while standing two metres from other people wearing masks in a big open room.

My neighbours on the community Facebook page seems especially enraged by the contradictions around Halloween. If children in Toronto and Ottawa can attend school with 25 others indoors, why are they being told they can’t trick-or-treat with their family outdoors while wearing masks? Many parents say they plan to ignore Ford’s advice against trick-or-treating. Will they listen to him ever again?

Ford’s rules are also changing so frequently that they’re bound to be ignored. Consider group sizes. At a recent family barbecue with several adults and several children, somebody asked if we were technically breaking the gathering-size law. My brother-in-law seemed to think it was legal because there were fewer than 75 people present — a logical conclusion considering that 75 people was the limit at his workplace. My sister seemed to think we could have 15 to 20 — or maybe that was just the limit at daycares? It turns out the limit was 10 people indoors and 25 outdoors. Hosts can be fined up to $100,000. Who knew?

If Ford wants Ontarians to continue following the COVID-19 rules rather than getting frustrated and giving up, he needs to simplify the law. The law should be that people from different households must stay two metres apart or wear masks in public. That means restaurants can serve indoors, but people will need to sit two metres apart unless they’re from the same household. Fitness businesses can be open with distancing in place, and people can decide for themselves whether they think spin class or weightlifting is worth it. (Hint: spin class is not worth it.) People can legally host whoever they like in their homes during the holidays, but they will do so knowing that it’s risky unless they stay two metres away from Grandma, or else wear a mask.

There could be sensible exceptions, but in general the rule would be clear to everyone. It would address the risk of COVID-19 while treating business owners fairly and allow individuals the freedom to make choices that make sense for them, without jeopardizing the health of others. If Ford can pull that off, voters will reward him. If they remain frustrated and confused, they may throw him out like King Rex.

Josh Dehaas is a freelance writer and student at Osgoode Hall Law School in Toronto.

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