Like most people I tend to accept public law as being a matter for the common good in terms of defining the relationship between individuals and the good of the community.
But the rule of public law in Canada rests, at least partly, not on just people’s faith in and acceptance of the common good but on government’s ability and willingness to enforce the law.
Public law is often law that protects people from themselves and their own self-serving impulses and keeps other people safe from the consequences of less worthy impulses which endanger others.
On average, B.C. has about 290 road deaths each year and that number, in the eyes of legislators and the courts, justifies serious penalties which are part of serious laws which restrict our “freedoms” to do whatever we want.
So, for example, it is illegal to drive with a blood-alcohol concentration that is equal to or over 80 mg of alcohol in 100 ml of blood.
In the same way driving while using a cell phone, driving over the speed limit or driving while not wearing a seatbelt — these are all illegal activities designed to protect us from ourselves and to protect others from our own lack of community responsibility.
We accept these limitations on our personal “freedoms” and compulsions, partly because of a sense of responsibility to others and partly, truth be told, because of the serious penalties which can and will be be imposed on folks for breaching those laws.
These laws regarding driving on public roads and the circumstances under which they can be enforced, broadly speaking, are found in the B.C. Motor Vehicle Act and Regulations.
Police officers have the power to stop drivers to check for the fitness of the motor vehicle, possession of a valid driver’s licence, proper insurance, and sobriety of the driver.
Police officers do not need a warrant, or even reasonable and probable grounds to perform such stops. The fact that you are driving on a public highway is enough to justify a vehicle stop.
The courts, for the most part, have upheld both the Motor Vehicle Act and the efforts of police officers to enforce it.
So far so good and most people accept the necessity for laws regulating how we drive on public roads.
But what about the laws designed to protect us from ourselves and others during the COVID pandemic?
As of April 1, and by comparison to road deaths, the death toll resulting from COVID in B.C. hovered around 1,500, six times the number dying each year on the roads.
Government’s response to these catastrophic numbers has been to declare a “state of emergency” under the Emergency Program Act (the “EPA”). Declaring a state of emergency enables the B.C. government to exercise sweeping statutory powers, including invoking the Public Health Act to declare, through public health officer Dr. Bonnie Henry, a public health emergency.
The declaration of a public health emergency unlocks a range of emergency powers under the Public Health Act. Among other things, the Public Health Act empowers the provincial health officer to issue verbal orders that have immediate effect.
The Public Health Act lays out penalties including $25,000 and six months in jail for people who don’t comply with health orders.
But it is at this point that the impact of the Public Health Act and how the enforcement of health orders is accomplished becomes a muddy.
Police officers and other compliance and enforcement officers — like bylaw officers, gambling enforcement officers and liquor and licensing inspectors — do not have the power to ticket and detain people in relation to public health orders. Police officers can only assist health officers if health officials ask police for help.
An exception is in Vancouver, which declared its own state of emergency and where city council has given bylaw officers the power to issue $1,000 tickets for individual offences and fines of up to $50,000 for businesses.
As with the Motor Vehicle Act it is hoped that the courts will uphold these penalties.
In the meantime, health authorities try to negotiate good faith acceptance of health orders in the hope that good faith acceptance will prevail. But the count of COVID cases and deaths increase every day while the courts have yet to clearly establish the who, what, where, when and why of enforcement precedents, even while those penalties are outlined clearly in the Public Health Act.
That’s overdue and every day as the COVID numbers climb exponentially and COVID deaths increase alongside those numbers, the application of serious penalties from those proud to be scoffing at the Public Health Act becomes more urgent.
This is not a get tough hardline column advocating shutting down restaurants, preventing religious groups meeting or outlawing family gatherings, but as economist John Maynard Keynes advised, “When the final result is expected to be a compromise, it is often prudent to start from an extreme position.”
Geoff Johnson is a former superintendent of schools. gfjohnson4@shaw.ca
