The social value of law as a casualty of Covid-19 in Canada
“Fourteen days to flatten the curve” has become fourteen months of regulatory variants which have decimated the law’s social predictability
I can still remember the very first thing Mr. Shane, my grade 10 legal studies teacher, did when I entered his class 25 years ago. He had written something out on the board, and while many struggled to read his poor handwriting, my barrier to understanding was my youthful nescience of Latin.
“Ignorantia legis neminem excusat.” Most will be familiar with this legal maxim’s English translation: “Ignorance of the law excuses no one.”
I may have taken a roundabout route to becoming a law student, but I’d like to think that Mr. Shane’s charisma and presentation style only amplified my interest in studying the law and pursuing it as a profession.
One of the first things a law student is required to learn is the value of law to society — to get a real sense for why it exists and what good it serves. I will offer no challenge to the definition of “law” as offered by reputable dictionaries such as those of Black’s or Oxford, as they outline not only what the law is, but summarizes its key functions.
What is often understated in these definitions, and overlooked by many lay understandings of law’s social functions is the value it provides to society. This value is often referred to in the judgments of higher courts in common law countries such as Canada, the United States, Australia and the UK, but is not broadly emphasized in other parts of society. Yet, it is the value of law that everyone relies upon when going about their day-to-day lives.
Covid-19 is Eroding the Social Predictability the Law Used to Provide
Everyone, from school-aged children to the eldest in society, benefit from the predictability our bodies of law provide. This predictability is conditioned in citizens throughout their lives simply by participating in society. Going to school, Church or even a weekly bowling group all serve to reinforce the predictability our law provides. Allow me to illustrate with some examples.
The criminal law ought to provide the general public with a virtual certainty that no harm will come to them or their property should they decide to venture outside. Its retributive effects, the punishment the state can impose on a criminal offender, is what provides a collective social predictability that favours the maintenance of public order and safety.
Contract and family law provide for some predictability in the formation of human relationships with others, as well as with businesses.
Public or constitutional law not only provides for the mechanisms by which a society is governed, but also the preservation of a moral consensus on the rights and freedoms which are valued so highly by that society. These rights are seen to be so fundamental as to require a legal guarantee that these will not be revoked without the legitimate machinations of the state.
In the age of Covid-19; however, the value the law provides us has been made ill. Can Canadians truly say that they know what is expected of them, when the federal government, and the governments of 13 different provinces and territories have ever-changing public policy declarations in fighting the pandemic?
Take Quebec — the province hardest hit by Covid-19. Quebec (as of this writing) has five alert zones across the province. Each zone has its own set of restrictions on social and economic activity, education and how we interact with our family, friends and loved ones — even in our own homes. These are zones which did not exist until well-after the pandemic was underway — and the restrictions for each zone also change. Quebecers have seen three significant changes to these rules in the last three weeks — rules which, if violated, are met with heavy fines.
That is to say nothing of the federal government’s rules, or, as is often the case when issues arise in court, of disputes or quirks in statute or regulation which produce a sociojudicial anomaly requiring a declaration from the courts.
If the value of the law, as I argue, allows the public to arrange their daily affairs in a manner that is predictably consistent with society’s norms and moral code, then it is clear that the pandemic has eroded it.
The law provided predictability to grandparents when embracing their grandchildren.
It used to provide predictable free access and movement to other parts of a province or country.
It used to provide predictability to freely enjoy a workout at a public facility, or taking in a movie at a theatre or a meal at one’s favourite restaurant.
It used to provide predictictability to politicians who travel to tropical destinations in the winter and keep their jobs upon their return.
It used to provide Asian Canadians in Vancouver, and indeed across Canada, with a virtual certainty that no harm would come to them at the mall, on the street or on public transit.
When the pandemic started, people were told to stay home. People were rightly asked to do their part. Many did just that.
“Fourteen days to flatten the curve” has turned into fourteen months of changing rules, regulations, restrictions, colour-coded zones and government sanctions for things that used to be normal. Canadians are tired of this hodgepodge of restrictions and of the same “we’re almost there, hang tough — Thanks, Your Premier” messaging from politicians. Health professionals, who have acted heroically throughout the pandemic, are exhausted and reaching the breaking point. These perspectives are fundamentally at odds with one another, and leads me to something no one appears to be talking about — the idea that all Canadians are being asked to keep up with a changing legal landscape that even law students like myself are having difficulty keeping up with.
There are varying degrees of confusion shared among all people, whether they have followed the public health guidance or not, about what they can and cannot do.
Can we go outside after a certain time? What about next week? Is the hair salon open? Can I go to an open house viewing? Can I visit my elderly loved one? Are my parents allowed inside my home?
Which brings me back to Mr. Shane’s first lesson 25 years ago.
If “ignorance of the law is to be no excuse”, shouldn’t governments and the agencies within its realm, including the public health agencies recommending or issuing these orders, enact consistent rules?