Everything is forbidden unless it is permitted

Everything is forbidden unless it is permitted

There is a popular maxim in common law systems, “everything which is not forbidden is allowed”. The idea is that in liberal democracies we are inherently and naturally free to do anything, so long as it is not expressly prohibited by law.

Ontario has now flipped that maxim on its head. Under the new stay at home order, everything is forbidden unless it is permitted. The Ford government’s hastily published regulations require every individual to remain in their place of residence, unless they fall into a lengthy list of exceptions.

The exceptions range from leaving your house to walk your dog, go to an essential job, travel to the airport, or pick up an essential item, among many other reasons. The exceptions to the order are broad, and fairly flexible. For example, the exercise exemption could capture anyone who is a pedestrian outside their house. But the problem with this order is that it is not how we live in a free society. It is simply impossible to capture all the activities that should be permitted.

The government essentially said as much in a Q&A document. The Premier’s Office stated that is impossible to determine what is an essential item, an essential trip, or essential job. Essential workplaces are defined in another regulation, but it is likely that many employees in those workplaces could do their jobs from home. However, it is simply not realistic for the government to review tens of millions of job descriptions to determine who can work from home.

Yet despite recognizing the sheer impossibility of imposing a blanket prohibition on everything and then carving out the activities we are still free to do, that’s exactly what the Ford government has tried to do. And recognizing the absurdity of the government being able to make these determinations, Premier Ford has asked residents to use their “best judgment” in deciding whether to go out.

Almost as worrying as the fact that the government has flipped the basic notions of fundamental freedoms on their head is the fact that they have empowered the police to enforce this unclear and subjective order. The government even published the regulations empowering the police to enforce the stay at home order a day before they had even specified what the terms of that order would be.

The regulations give police the authority to ask individuals to identify themselves when there are “reasonable and probable grounds” to believe they are violating the stay at home order. The Solicitor General’s office has stated that this does not empower the police to pull over cars solely to check if drivers are following the stay home order. A government memo to chiefs of police has attempted to clarify that on its own, being outside is not sufficient evidence of a failure to comply with the stay-at-home order, and that individuals are not compelled to explain why they are outside of their residence.

However, the memo ads that police are encouraged to make reasonable inquiries to determine if individuals are in compliance with the stay at home order. And while enforcing the stay home order may not be the sole reason cars are pulled over, it is fair to expect that many a driver with a broken tail light will be probed about their reasons for being out and about.

We should all be concerned about what will happen when police and individuals disagree about what is truly “essential” under the stay at home order. Especially since we know random street checks, even when done under the pretense of a broken tail light, have a disproportionate impact on minority communities. Increasing the number of police interactions and empowering the police to demand identification when enforcing a largely subjective law is a recipe for arbitrary detentions, searches, and escalations.

Most damaging of all, it creates a culture of fear and mistrust. Most police are hardworking and decent people, who want to arrest bad guys, not grandmas talking on their driveways. But this stay home order, with its unclear and subjective terms, sets police up in opposition to the people they are called on to serve and protect. And simply put, it isn’t how free people live.

This column was originally published in the The Line.