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| Lorne Sabsay |
While all right-thinking people understand the need to control the virus and “flatten the curve,” we also understand the need to balance such controls with the mental health and welfare of our citizens and the economy. That is why stores, schools and a host of other businesses and institutions remain open while others have to close. But another essential component of any response to any threat of harm to the population is the assurance that the equal and appropriate application of the law is maintained at the same time.
At Northern Karate the officers stated, “We are closing you for the next 28 days as per the Reopening Ontario Act [S.O. 2020, c.17], regulation 263/20 section 13 under sports and martial arts. (The Regulation).” The instructor on duty at the time asked if he could take a copy, or take a picture, of the document and the officers refused. They said to download the Act and left.
When I heard this, I wondered a number of things. Did the regulation cited by the officers give them the right to make this closure? If not, pursuant to what authority were they making it? And why, when Toronto martial arts schools were permitted be open on Wednesday, albeit with COVID-19-related protocols in place to protect students and staff, were they suddenly not able to open on Thursday, even while observing the same safety protocols? There was no suggestion that any of the safety protocols (COVID-19 screening, disinfecting equipment, social distancing, etc.) were not being followed.
It is also worth noting that “martial arts school” appears nowhere in the regulation cited by the officers. They even got the name of the section they quoted wrong. The heading for s. 13 makes no reference to martial arts. It says it applies to “Facilities for indoor sports and recreational fitness activities.” Moreover, the section itself makes no reference to martial arts at all.
While it is true that certain individuals do participate in sport versions of both karate and Brazilian jiu-jitsu (BJJ), neither is designed, nor studied, as a sport. They are both systems of self-defence. The essence of martial arts of any kind is self-defence. So a martial arts school, in essence, is instruction in the art of self-defence. Techniques are taught and drilled so students will know how to defend themselves by using them. That’s what happens in a martial arts school. Competitions that happen elsewhere are adaptations of the self-defence system. Fitness may be a by-product of self-defence training, but martial arts schools are not fitness centres or facilities for indoor sports.
I have looked at the Act and the Regulation cited by the officers. The salient parts are as follows:“3. This Order applies to the areas listed in Schedule 2 to Ontario Regulation 363/20 (Stages of Reopening). O. Reg. 414/20, s. 3.”
Regulation 414/20 does not list any particular geographic area in Schedule 2. It lists various types of businesses/activities, none of which are a martial arts club. Accordingly, my view is that the regulation cited by the officers doesn’t apply to martial arts schools ab initio.
As for s. 13, the one cited by the officers, it states the following (emphasis added by me): “13. (1) Subject to subsections (2) to (5), facilities for indoor sports and recreational fitness activities, including gymnasiums, health clubs, community centres, multi-purpose facilities, arenas, exercise studios, yoga and dance studios and other fitness facilities, may open if they comply with the following conditions...”
Assuming, for the sake of argument, that classes in self-defence or martial arts even qualify under this section, the section doesn’t mandate closure. It permits the opening of such places as long as those places comply with the following conditions: "1. Indoor fitness, exercise or dance classes must not be provided."
This first condition is very confusing because it seems to prohibit everything that is permitted according to the beginning of the section. The section says, for example, that dance studios may open as long as dance classes are not provided. This makes no sense at all. Especially when condition 3, below, permits the studio to stay open as long as each “class” is in a separate room and no more than 10 people are in the class:
3. The total number of members of the public permitted to be at the facility in a class, organized program or organized activity at any one time must be limited to the number that can maintain a physical distance of at least two metres from other persons at the facility, and in any event cannot exceed 10 people.
3.1 Each class, organized program or organized activity must take place in a separate room.
The regulation appears to permit classes of no more than 10 people in a room while simultaneously prohibiting those 10 people from engaging in those classes. Well, at least if the class is exercise, fitness or dance. None of which are martial arts anyway. Other applicable conditions include the following: “4. No spectators are permitted; 5. Any person who enters or uses the facility must maintain a physical distance of at least two metres from any other person who is using the facility...; 7. Activities that are likely to result in individuals coming within two metres of each other must not be practised or played within the facility; 9. Any equipment that is rented to, provided to or provided for the use of users of the facility must be cleaned and disinfected between each use.”
This is the first of a two part series. Read part two: A defence of self-defence schools closed during COVID-19: Part two.
Lorne Sabsay is the owner of Sabsay Lawyers and has been practising criminal and civil litigation for 35 years. He is a member of both Toronto BJJ and Northern Karate Schools. He holds a fifth-degree black belt in karate, Shihan-level teaching title in karate and a blue belt in Brazilian jiu-jitsu.
Photo credit / Abel Pratama STOCKPHOTO.COM
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