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| Lorne Sabsay |
An essential component of any response to any threat of harm to the population, such as COVID-19, is the assurance that the equal and appropriate application of the law is maintained at the same time.
The self-defence arts were invented by monks in Buddhist monasteries because they were banned from carrying swords and knives by the Emperor. The monks responded to the weapons ban by creating systems of self-defence that required no weapons. When there is a will, there is a way.
In my view, there simply was no contravention of s. 13 of the regulation, so the officers had no legal right to do anything to NKS based on that regulation.
But let’s say I’m wrong about this. Let’s say NKS really wasn’t permitted to be open under this section.
The next question is whether or not the bylaw officers had the power to close the school. The section cited by the officers gives no such power. There is nothing in the section that permits a bylaw officer to close a place of business.
The power to close a business must come from the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, S.O. 2020, c. 17.
Closures appear to be governed by s. 9 of the Act (emphasis added by me):
9. Despite any other remedy or any penalty, the contravention by any person of a continued section 7.0.2 order may be restrained by order of a judge of the Superior Court of Justice upon application without notice by the Crown in right of Ontario or a member of the Executive Council and the judge may make the order and it may be enforced in the same manner as any other order or judgment of the Superior Court of Justice.
9.1(1) A police officer, special constable or First Nations Constable may order that premises be temporarily closed if the police officer, special constable or First Nations Constable has reasonable grounds to believe that an organized public event or other gathering is occurring at the premises and that the number of people in attendance exceeds the number permitted under a continued section 7.0.2 order. 2020, c. 23, Sched. 6, s. 2.
9.1(1) A police officer, special constable or First Nations Constable may order that premises be temporarily closed if the police officer, special constable or First Nations Constable has reasonable grounds to believe that an organized public event or other gathering is occurring at the premises and that the number of people in attendance exceeds the number permitted under a continued section 7.0.2 order. 2020, c. 23, Sched. 6, s. 2.
The reference to s. 7.0.2 is to the Emergency Management and Civil Protection Act and the salient portions read as follows (emphasis added by me):
7.0.2(1)The purpose of making orders under this section is to promote the public good by protecting the health, safety and welfare of the people of Ontario in times of declared emergencies in a manner that is subject to the Canadian Charter of Rights and Freedoms. 2006, c.13, s.1(4).
Criteria for emergency orders
(2) During a declared emergency, the Lieutenant Governor in Council may make orders that the Lieutenant Governor in Council believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property, if in the opinion of the Lieutenant Governor in Council it is reasonable to believe that,
(a) the harm or damage will be alleviated by an order; and
(b) making an order is a reasonable alternative to other measures that might be taken to address the emergency. 2006, c.13, s.1(4).
Limitations on emergency order
(3) Orders made under this section are subject to the following limitations:
1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.
2. An order shall only apply to the areas of the Province where it is necessary.
Criteria for emergency orders
(2) During a declared emergency, the Lieutenant Governor in Council may make orders that the Lieutenant Governor in Council believes are necessary and essential in the circumstances to prevent, reduce or mitigate serious harm to persons or substantial damage to property, if in the opinion of the Lieutenant Governor in Council it is reasonable to believe that,
(a) the harm or damage will be alleviated by an order; and
(b) making an order is a reasonable alternative to other measures that might be taken to address the emergency. 2006, c.13, s.1(4).
Limitations on emergency order
(3) Orders made under this section are subject to the following limitations:
1. The actions authorized by an order shall be exercised in a manner which, consistent with the objectives of the order, limits their intrusiveness.
2. An order shall only apply to the areas of the Province where it is necessary.
The applicable legislation appears to give no authority to close down a private place of business, even if that business is contravening regulations enacted pursuant to the Emergency Management and Civil Protection Act. Only a judge can do that. In very special circumstances a peace officer can close a business, but that appears to only be possible when the thing being closed is an organized public event or other gathering that is occurring at the premises and that the number of people in attendance exceeds the number permitted under a continued s. 7.0.2 order.
Further, the enabling legislation mandates that any such orders be subject to the Canadian Charter of Rights and Freedoms. That means that there must be constitutionally valid reasons for curtailing the right to freedom of association (s. 2) or the right to equality before and under law (s. 15).
Other martial arts schools in Toronto were not shut down when Toronto BJJ and NKS were. Where is the equal, and non-discriminatory, application of the law here? In Mississauga (another provincial “hot spot” for COVID-19), martial arts schools are permitted to remain open with the blessing of the bylaw enforcement agency for that city.
We have data that shows us that large social gatherings result in the transmission of COVID-19. We have data suggesting that indoor gyms have been transmitting COVID-19. Where is the data suggesting that martial arts schools, with full safety protocols in place, are spreading COVID-19?
Colleagues who practise municipal law have informed me that the bylaw officers may not need specific authority to close down schools and that they may have simply been doing the schools a favour by not fining them. This may be because they are designated as special constables under s. 9.1 of the Reopening Ontario Act, 2020. But, as stated above, that would still not give them the right to close a business unless it is for the numbers of participants in the gathering being too high.
And, I would argue, any decision of an officer should always be reviewable by a court, if the officer is attempting to wield authority she or he doesn’t really have. Even during COVID-19, it is important to follow the rule of law, or all of us may find that we are the victims of arbitrary decisions imposed by a slapdash legal system.
This is the second of a two-part series. Read part one: A defence of self-defence schools closed during COVID-19: Part one.
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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