Civil rights watchdog accuses Ford government of pandemic power grab ‘by stealth’

A civil rights watchdog is accusing government of “emergency management regulation by stealth” because restriction orders like last Friday’s ban on in Toronto, Peel and Ottawa are not quickly and officially posted online for all to see.

“Our constitution demands government by laws, not by press release,” Michael Bryant, executive director and general counsel of the said Tuesday after raising concerns in a two-page letter to Attorney General Doug Downey.

It took until Tuesday afternoon for the government to publish the that also require the closures of gyms, theatres, bingos and casinos in the three municipalities with the highest incidences of for at least 28 days.

A government spokesman said the government is responding at “unprecedented speed” to the pandemic, which is why Ford and cabinet ministers hold regular updates at news conferences every weekday to keep Ontarians informed.

“Changes to orders are published online as quickly as is operationally feasible,” said Stephen Warner, press secretary to Solicitor General Sylvia Jones.

Bryant said other provinces and the federal government release such orders simultaneously, which is important because the businesses impacted and their lawyers are entitled to read the fine print, which police forces also need to see.

“I don’t understand how law enforcement is supposed to enforce all this,” added Bryant, who served as attorney general in the Liberal government of Dalton McGuinty.

“I hope they’re not releasing the regulations to the police and not everybody else.”

Warner said the solicitor general “provides information to law enforcement partners regarding any relevant changes to orders.”

In a two-page letter obtained by the Star, Bryant said new COVID-19 regulations and orders-in-council approved by members of Ford’s cabinet should be disclosed in a “timely and consistent manner.”

“During the pandemic, most Canadians must conduct themselves in accordance with frequently changing communications from local public health officers, premiers, mayors, and provincial/territorial cabinet ministers,” Bryant wrote.

“Whether a podium announcement carries lawful authority, as opposed to being a request for guidance, is often unclear to the public,” he said.

“Sometimes, the only way to find out is to check the law itself, which is supposed to be publicly accessible.”

Bryant said delays of at least one to three days in officially posting the orders have been common in Ontario and have been “problematic” since last spring.

“In the absence of any law available to the public, it cannot be said that the premier or any cabinet minister speaks with lawful authority when they announce new restrictions, like those put in place for the Thanksgiving weekend,” he added in the letter.

“The failure to disclose orders upon which the provincial government bases its public pronouncements risks governing COVID by stealth,” he said, describing it as behaviour that is “unconstitutional and destabilizes our democracy.

The new restrictions that took effect Saturday were a sudden reversal for Ford, who had maintained earlier in the week that Ontario was “flattening the curve.”

Additional measures included limiting organized public events to 10 people indoors and 25 outdoors — matching limits imposed in September for private gatherings like house and backyard parties — and banned team sports indoors, such as hockey games at arenas.

Rob Ferguson is a Toronto-based reporter covering Ontario politics for the Star. Follow him on Twitter: