Is Hamilton's Physical Distancing By-law Ultra Vires?
Do something, anything is an understandable sentiment in the middle of this COVID-19 State of Emergency.
It is entirely reasonable for us to seek action which will shorten the stay at home orders, action which will enable us to resume our previous lives as soon as possible, and action against those who we see as failing to maintain the two-metre social distancing recommended by health officials.
The idea of issuing monetary fines against those who fail to physical distance is just such action - quick, visible, and comforting at an uncomfortable time.
Hamilton City Council will vote this morning on a rushed by-law to do just this.
Hamilton's proposed physical distancing by-law was added yesterday afternoon to today's Council agenda as a "notice of motion". Mayor Fred Eisenberger stated during Friday's City news conference that he expects Council to pass the bylaw today.
Vague and Broad Laws Problematic
Good laws are clear, concise, and limited to serving the purpose of their enactment. This by-law fails the test because it grants broad powers of enforcement to enforce vaguely written provisions.
Hamilton's By-Law does not provide clarity for residents who wish to obey the law, nor clarity for the municipal bylaw enforcement officers who have to impose it.
As written, an essential business is in violation of this by-law if its customers are lined up two metres away on a public sidewalk of a width less than two metres (effectively every sidewalk in Hamilton).
While municipal bylaw enforcement officers will be asked to exercise discretion, overreach is invited by the vagueness of the proposed bylaw.
Hamilton's By-Law states "Every person shall maintain a distance of at least two (2) metres from every other person who is not a member of the same household when in a Public Space."
Hamilton's By-Law defines public space as "any outdoor or indoor space to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry".
In short, everywhere could be "Public Space" if a City of Hamilton staff member decides it is "by implication".
Compare this to the clarity in the City of Toronto social distancing by-law. Toronto states no person shall "Remain, for longer than an incidental period, closer than 2 metres to any other person who is not a member of the same household".
Incidental is the key word in Toronto's by-law. Hamilton's by-law technically makes it a municipal offence to walk pass another person on a public sidewalk.
Further Toronto's by-law only applies to public parks and public square; it does not apply to other "public spaces" such as sidewalks, roads, and private property. Toronto's bylaw is limited to its purpose, and is clearly within the legal authority of the City.
Ultra Vires? Does Council Have the Power to Create This Law?
Another key difference between the Toronto by-law and Hamilton's proposed by-law is a severability clause inserted in expectation the Ontario Superior Court of Justice may declare Hamilton's By-Law to be ultra vires - beyond the powers of the municipality.
Section 7.2 reads "Should any section of this By-law be declared by a Court of competent jurisdiction to be ultra vires or illegal for any reason, the remaining parts shall nevertheless remain valid and binding, and shall be read as if the offending section or part had been struck out."
Why is this in Hamilton's By-Law?
Hamilton City Council is creating a new provincial offence which is not required or imposed by those with the clear authority to make it illegal to be closer than two metres to another person.
The Province has not imposed physical distancing as a legal requirement, nor is Hamilton's Medical Officer of Health issuing a physical distancing order. Both have clear and undisputed powers to do so.
In justifying the proposed by-law, Hamilton City Council cites Section 10(2)(6) of the Municipal Act, which states a "municipality may pass by-laws respecting the ... health, safety and well-being of persons" adding "it desirable to enact a by-law to support the intent and purpose of the Provincial Orders made under the [Emergency Management and Civil Protection Act] in order to protect the health, safety and well-being of persons in the City of Hamilton by prohibiting certain activities and regulating physical distancing during the COVID-19 Emergency".
What is the "intent and purpose of the Provincial Orders"?
Ontario Regulations 82/20 and 119/20 order the "closure of places of non-essential businesses" allowing essential businesses to operate "subject to the advice and recommendations of public health officials, including their recommendations about the importance of physical distancing".
It is already a Provincial Offence to operate an essential business without implementing physical distancing. There is no need for a municipal by-law for these spaces.
Dr. David Williams, Ontario's Chief Medical Officer of Health, has not issued an order imposing two metre physical distancing; nor has Hamilton's Medical Officer of Health Dr. Elizabeth Richardson. Both have the power to issue a two metre physical distancing order.
Ontario Regulation 99/20 prohibits gathers of more than five people, or more than 10 persons for a funeral service. Ontario Regulation 104/20 makes it illegal to use outdoor recreational amenities such as playgrounds, sports facilities, multi-use fields, community gardens, benches, etc.
Noteworthy, especially for likely legal challenges against municipalities issuing tickets for being in public parks closed by municipal order, O.Reg 104/20 states "(4) For greater certainty, nothing in this Order precludes individuals from walking through or using portions of park and recreational areas that are not otherwise closed and that do not contain an outdoor recreational amenity described in subsection (2)."
We don't know why the Province did not make physical distancing a legal requirement using its clear powers to do so under the Emergency Management and Civil Protection Act.
We know they have not imposed physical distancing by force of law.
As Hamilton's By-Law proposes to regulate all nearly all spaces outside of people's personal residences, there is a legal burden upon City Council to prove the need for such a broad wide-reaching By-Law.
Does this By-Law meet the standard of the Oakes Test? Especially as it relates to the "intent and purpose of the Provincial Laws"?
A court will ultimately have to decide, based upon the inclusion of the severability clause, Hamilton City Council isn't entirely confident they are actually within the legal powers granted to them under the Municipal Act.
The Proposed Fine
Hamilton City Council proposes a minimum fine of $500 per individual violation of the proposed By-Law, in addition to fines which may be levied under the Emergency Management and Civil Protection Act.
A quick scan of other municipalities imposing similar by-laws finds $500 is a common figure. Oakville is imposing $300 fines under its by-law, which is more clearly defined in its language.
Oakville's By-Law provides clarity of the appeal process for persons fined under the by-law.
Due to time constraints, I'm not able to write about the concerns regarding enforcement. Needless to say, we need to be very concerned about disproportionate enforcement of this by-law against vulnerable and marginalized populations.
Additional: In this morning's Hamilton Spectator, Spec contributor Andrew Dreschel shares the story of a Hamilton nurse issued a $880 fine for being on a golf course with her dog unleashed. The woman plans to fight the ticket.