Since March 13, most Quebecers have applauded the leadership demonstrated by the Premier and by the Director of Public Health. Mr. Legault has been said to act like a “good family father”. As for Dr. Arruda, he is the definition of the good doctor. Well done gentlemen, to you and your team.
However, since the beginning of this crisis, the prohibitions have been communicated to us through press conferences and press releases. The decrees, which must be published in the “Gazette officielle du Québec,” are not available there at the time of their entry into force, due to the processing and publication times. In short, it is difficult to know precisely the extent of the restrictions on individual and collective freedoms, at any given moment.
During the first days of the crisis, the bans were mainly aimed at the public and semi-public sectors. In short, the government could invoke its employer status to issue directives. For the private sector, the government limited itself, at first, to recommendations. But little by little, we went from demands to requirements, from recommendations to prohibitions.
Now the government is banning all non-essential economic activity.
Let’s be clear: the reasons invoked are difficult to contest. The number of people infected with COVID-19 has increased dramatically. As for how the virus spreads, it is increasingly recognized that we are dealing with community contamination. It goes without saying that social distancing is increasingly important. In short, we are not questioning the intentions of the health authorities.
But what can be deemed essential for a society like ours? The different parts of the economy are linked together and form a chain. If we remove a link from this chain, everything else stops.
Let’s look at a realistic example. During this crisis, the authorities recognized that the transport of goods is essential. A lot of this transportation is done by truck. But for trucks to run, they need gas. Are gas stations essential? Trucks will only run if their mechanics are in good condition. Are garages essential? Should truckers be able to eat, sleep and continue life as usual? Are restaurants, hotels and motels essential?
One could argue that it is mainly the retail sector that is targeted. But what about the family with growing children at home, children whose shoes no longer fit? Are shoe sellers essential?
Our labour laws contain provisions on essential services. However, their interpretation by the courts shows that although it is possible to restrict the activities of certain companies, it is rare that an entire economic sector can be completely ground to a halt.
There is also the MANNER of stoppage. As soon as yesterday’s restrictive measures were announced, representatives of the aluminum industry went out to the media to explain that an aluminum smelter cannot be stopped so suddenly. To do so would seriously damage industrial equipment. A planned shutdown therefore takes several days.
In short, what is essential? The government itself does not know. The proof is that on the website presenting the list of essential activities, the authorities write the following [translated from French]: “If your company’s activity is not listed below, but you think it is essential, you can apply for designation as a core business.” Is this not a lobbying call?
Consider this: the list has already been amended to include businesses that were excluded at first The ability of companies to be added to this list could therefore depend on the strength of their lobby or their proximity to power. . Add to this that no clear criteria have been provided to allow us to know what can be considered as essential. Therefore, we are confronted to an ill-defined category of businesses, liable to an arbitrary application in a context where the financial impact of being included or excluded is huge. The risks of corruption that this entails must be emphasized here.
There is also concern about the extent of the powers that are exercised by the authorities. We are not only witnessing an explosion of the Corona virus. We are witnessing an explosion of restrictions on individual and collective freedoms. This approach creates precedents. And if the current intentions of the authorities are not questioned, there is reason to be concerned about what the exercise of such powers by less well-intentioned leaders could mean for our freedoms.
Perhaps the time has come to stop obediently applauding the authorities’ decisions and to start taking a critical look at them. Without going into denial about the seriousness of the health crisis, we must avoid granting the government excessive powers. It is the duty of any lawyer to protect individuals and the community from too much state power. This is one aspect of what the Force-Legal team does.