Legal Clarity and the Lawlessness of Ford’s Stay-At-Home Order

Two days ago the Ford government issued a stay-at-home order following a declaration of the second state of emergency since the beginning of the COVID-19 pandemic. After some had claimed that there was “confusion” surrounding the new orders the Ford administration offered this FAQ.

The FAQ attempts to define some of the confusing language within the stay-at-home order by… not defining anything. What is an “essential item”? They answer,

The Government of Ontario cannot determine what is essential for every person in this province, each with their own unique circumstances and regional considerations. Legally defining what is essential risks cutting people off from goods that may legitimately be necessary for their health, well-being and safety.

What is an essential trip? Their answer offers similar laser precision in their legal definition:

The Government of Ontario cannot determine what is essential for every person in this province, each with their own unique circumstances and regional considerations. That said, we have provided broad categories that people should consider before leaving their home: food, health-care services, including medication, exercise or work, where someone’s job cannot be done at home.

While these definitions explicitly refuse to offer a definition, Ford, pompously and arrogantly, decries in an interview, “Folks, there is no confusion here, it’s very simple: Stay home. Stay home. That’s it. If you’re questioning, should I go out? you’ve got your answer: Stay home.” Of course, people might question whether or not they should leave for something which is “legitimately necessary for their health” in order to not harm others but Ford could not possibly imagine such a sacrifice.

Asking for real definitions of what is and is not permitted is completely reasonable. As Solicitor General Sylvia Jones explains, “If people are found not complying with these orders, they will be subject to fines and prosecution. Penalties may include up to a year in jail”! Ontarians might like to know whether what they are doing could land them in jail for a year!

In his 1964 book, The Morality of Law, Lon L. Fuller offers eight principles which make up the “inner morality of law”. Fuller claims that if one fails to abide by these eight principles when lawmaking, they will fail to produce law at all. One of the ways someone can fail to make a law is a “failure to make laws understandable”. Fuller writes that “The desideratum of clarity represents one of the most essential ingredients of legality.” Fuller tells a parable of King Rex who writes a law code which was “truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer.” Rex’s subjects asked the following question: “How can anybody follow a rule that nobody can understand?”

This is precisely the question that Ontarians should be asking about the stay-at-home order. We face up to a year in jail for breaking a law which we cannot understand! And this is not by mere accident. The Ford government is explicit in their unwillingness to define the very acts which they call illegal. But the threat of violence is nonetheless present! ‘Follow these rules or we will haul you off to jail’ they tell us! But how can we follow this law? We do not understand it.

Thus as Fuller points out, this is not law at all but failure to produce law and the unclear stay-at-home order does not give us law, but gives us lawlessness!

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