written by Patricia Hughes
Since the onset of the pandemic in March of this year, municipalities across the country have instituted policies and by-laws that have had a serious impact on residents, often not following regular processes. The University of Windsor Faculty of Law Centre for Cities has recently released its report about municipal states of emergency, States of Emergency (“the Report”), co-authored by Dr. Anneke Smit (Director, Centre for Cities) and students Hana Syed, Aucha Stewart, Terra Duchene, and Michael Fazzari, which analyses the response of municipalities across Canada in the early days of the pandemic and proposes a way forward, not only with respect to municipalities, but also provincial legislation related to public health emergencies. One of the great calls to unity at the outset of the pandemic, as many people sequestered in their homes, working remotely, taking care of children whose schools were closed, taking carefully distanced walks and refraining from many activities in which they would otherwise be engaged, was “we’re all in this together”. It’s not pleasant being stuck at home, but “we’re all in this together”. But this was, of course, an incomplete picture of the situation then and now. Because we weren’t and aren’t by many measures “all in this together”.
Certain groups of people were and continue to be affected by the pandemic and the measures employed to respond to it more than were and are others. These include seniors living in long-term care who died disproportionately to their proportion in the population because of conditions in many long-term care homes (a situation which has raised renewed concerns as we enter the “second wave”: see here); workers in congregate settings such as long-term care homes, meat-packing plants and front-line workers in hospitals coming into direct contact with patients with Covid-19; persons living in public housing or on reserves or in overcrowded prisons and similar settings are only examples of people more likely to be struck by covid-19 more than others.
On the one hand, the impact of restrictions resulting in “isolation” have also been different for different people; for example, women have been even more vulnerable to domestic violence than before the pandemic because of the increased isolation (see, for example, The Globe and Mail story here and here); parents working remotely have had to juggle work requirements and caring for their children; residents in long-term care homes or younger people with cognitive challenges living in care homes who are confused because they are unable to see their children or their parents. On the other hand, there are those who have not been able to isolate, including essential workers in grocery stores and hospitals.
Many of the pandemic rules or regulations and protocols have been effected by the federal government (such as, with exceptions, quarantine requirements for travelers into Canada) and, particularly, by the provincial/territorial governments (identification of essential businesses, restrictions on the operations of businesses allowed to open, suspension of collective agreements in the healthcare sector, size of gatherings and much more). Municipalities also affect many aspects of people’s daily lives and they, too, have imposed requirements on residents (requiring the use of masks inside in public places, restricting use of parks, closing city-operated recreational facilities and more).
Municipalities have no separate constitutional status, deriving their authority from the provincial jurisdiction over municipalities under section 92(8) of the Constitution Act, 1867. However, they can declare a state of emergency that, like those open to the provinces and territories and the federal government (which did not declare a state of emergency), allows them to make decisions by-passing usual processes. Provinces and territories have established different rules in this regard. In Ontario, for example, section 2.1(1) of the Emergency Management and Civil Protection Act (EMCPA) requires municipalities in the province to “develop and implement an emergency management program and the council of the municipality shall by by-law adopt the emergency management program”. Section 4 of the EMCPA provides as follows:
4 (1) The head of council of a municipality may declare that an emergency exists in the municipality or in any part thereof and may take such action and make such orders as he or she considers necessary and are not contrary to law to implement the emergency plan of the municipality and to protect property and the health, safety and welfare of the inhabitants of the emergency area.
Under section 4(2) of the EMCPA, the head of the council or the council may declare the emergency is terminated “at any time”, as might the premier (s.4(4)) . According to States of Emergency, 58 out of 65 large municipalities across Canada enacted their own state of emergency during the pandemic, which in some cases were required to interact with provincial regulations (pp. 7-11). While much of the media coverage of responses to the pandemic has focused on the federal and provincial responses, municipal councils and sometimes only their executives, including the mayor alone, have played a major role in setting the parameters of our lives over the last seven months.
The Report focuses on the processes by which municipalities have made decisions and further, centres its analysis on the experiences of and impacts on Black, Indigenous and People of Colour (BIPOC) communities. These are populations that were disproportionately vulnerable before the pandemic, communities that are disadvantaged for many reasons. They disproportionately live in apartment complexes in which it is difficult to isolate (for a recent story on “hard hit” Toronto neighbourhoods, see here and for a story on rates of positive tests in different neighbourhoods here) and work in occupations that must be undertaken in person and that lack protections such as sick leave. Members of these communities are highly represented among front-line workers who have been in close contact with persons sickened with the virus, and at least in the early days, lacked proper protective equipment. These are “residents who are also suffering from what has been called the “second pandemic” — systemic racism” (p.6). (For the Report’s summary of the various factors, including the social determinants of health and occupational patterns, see p.14.) The pattern of coronavirus impact on the basis of race, the Report notes, is similar to that during the 1917-1918 Spanish flu and the 2009 H1N1 pandemics (p.14). Together these conditions mean that [t]he social and race-based inequities that were present in Canada’s cities prior to the pandemic are thus aggravated in the presence of COVID-19, making representation of vulnerable communities in municipal decision-making all the more important. (p.14) (citation omitted)
Despite this disparate impact (or because of it, perhaps), although acknowledging that lack of opportunity for public participation affects all residents, because the pandemic affects BIPOC communities more negatively than other groups, the Report maintains the lack of opportunity to participate also has a more negative effect for members of these groups: Decisions being made during the pandemic have different impacts for different communities, and it is very difficult for a mayor, or even an elected council, to fully appreciate these subtleties without the kinds of perspectives that come from public consultations. (p.27) As an example, the report refers to extending the “sidewalk” into the street for pedestrians, patios and bike lanes, as municipalities such as Toronto and others have done, explaining that when this is done in BIPOC communities, it must take into account the needs of these communities (p.27). Without disagreeing with the principle, I make two points here: the identification of examples of specific needs would have been helpful and (granting that cities may be more “ghettoized” than many would like to admit) surely the views of these communities are also relevant even if the relevant area is not defined as a geographical BIPOC neighbourhood.
For this reason, States of Emergency focuses on the processes by which municipalities have made decisions during the pandemic. The Report places municipal activity during the pandemic in the larger context of the malestrom of the various developments and issues that have dominated the country over the past several years and that have continued to have a force despite the overwhelming emphasis on the pandemic. As the Report says, “municipalities were already at the epicentre of dealing with some of the major crises of our time: climate change (and unsustainable patterns of growth), widening socio-economic inequality and the dearth of affordable housing, to name a few.” Furthermore, this past summer saw an escalation of an issue that had long been festering without resolution, systemic racism. (p.5) Although these developments have been accompanied by claims for more diverse voices to have a part to play in responding to these issues, municipal decision-making in the early months of COVID-19 saw a significant reduction in the number and diversity of voices at the table while many of these important decisions were being made, and directions set that will impact municipalities for years to come. (p.5) To bring the analysis to ground level, the Report provides two case studies of municipal regulation that has particularly affected BIPOC communities: physical distancing and public transit (to which I refer later).
One of the significant effects of many of the emergency declarations, as is the case with the provincial declarations, is to permit the executive to by-pass the representative branch, such as municipal councils. (Provincial declarations of a state of emergency give the premier or Cabinet the power to make decisions, while public health emergencies grant the power to the provincial medical officer of health. The Report provides an excellent description of the ways the declarations operate and their impact on municipalities on p.7, with clarifying examples, and a summary of each jurisdiction’s process and timeline on pp.8-11.)
Processes for municipal decision-making have been truncated considerably during the pandemic. In many cities, contrary to the usual relationship between mayors and council in which the mayor is little more than one among many, the mayors have exercised unilateral authority with, in 10 out of 65 cities, councils not even meeting in the early days. For example, in Oshawa, Ontario; Edmonton; and Winnipeg, council gave the mayor and the chief administration officer power to make decisions without have to seek council approval. Even when councils began meeting again later in March or by the end of April, in many instances virtually and perhaps with fewer meetings or agendas restricted to pandemic issues, their role was often merely a consultative one.
In addition to the instigation of municipal states of emergency or public health declarations and the processes during them, States of Emergency also expresses concern about their length and termination practices. It reviews the various provincial and municipal termination dates, concluding, “How and when a municipal state of emergency can be extended or comes to an end presents one more area where COVID-19 has highlighted a need for both greater legislative clarity and more accountable municipal practice.” (p.34)
One problem is that there is no requirement that a municipality (or anyone else) notify the public that a period of emergency has terminated. Furthermore, through extensions, an initial period may become lengthy and, although the Report does not mention this explicitly, “normalized”. (p. 34)
The Report also targets committees and commissions, which either did not meet or did not encourage participation. It makes a strong case for the importance of standing committees and commissions to the transparency of municipal decision-making and the related opportunities for public participation that allow a more targeted approach to issues (p.23). Yet, even more than the councils themselves, these committees were effectively “closed for business”, as it were during the early days of the pandemic. There were examples of committees that met virtually and that allowed public delegations to make submissions, as well as some that allowed in-person or hybrid submissions (p.24).
However, the Report is more positive about committees and commissions municipalities have created especially to respond to Covid-19 issues. In some cases, committees were formed to address the issues facing particular cohorts, such as seniors, while others included members of various communities. The Report commends these efforts, saying they “require more study, but they hold promise as part of the innovation and flexibility that is possible at the local level.” (p.30)
Municipalities may engage in consultations about a particular issue. The Report notes that public consultation “at the best of times” may have problems: they have been described in some cases as “‘consultation theatre'”, with the public being presented with an almost completed plan rather than something that allows input at the earliest stages.
Although open meetings are fundamental to municipal governance, some councils suspended in-person public participation, particularly through “live deputations”, replacing it by written submissions, including email. The Report nevertheless recognizes that in-person participation can be replaced by other means: the important point is that there should be some way for residents to contribute to the process of decision-making.
Remote participation has been permitted during the pandemic. Early in the pandemic, for example, the Ontario legislature enacted the Municipal Emergency Act, 2020 (MEA), which allows that members of council participating electronically will be counted towards a quorum. (For a detailed description of how the MEA affects usual processes, see this piece by Weir Foulds.)
In fact, the normal process of requiring residents to make submissions in person can pose difficulties for many people, since “[i]naccessibility and inconvenience can … be an issue, as the location, public transit options, and time of day can be barriers to participation by many interested parties.” (p.26, citation omitted) Not surprisingly, then, online meetings and consultation feature prominently both in how municipalities have responded to not meeting in person and in the Report’s recommendations for post-pandemic reforms.
Remote participation in many fields has become prominent, alone or in hybrid form, whether in elementary or college and university education, office-work, in the legal profession, whether lawyers or courts, entertainment, recreational activity and just about any arena in which in-person appearance is not absolutely required. And just as in most of those arenas, while online activity may be a necessity during the pandemic and may in some cases be desirable post-pandemic, some of the original enthusiasm has dissipated and the disadvantages of remote involvement become clearer. (The disadvantages are not newly discovered, it must be said, but have been identified previously in contrast to a tendency among some commentators to see online activity as a panacea.)
As the Report notes, the public participation picture during the pandemic has not been all bad. “Best practices” for public consultation over this period include online engagement, as has occurred in certain cities, as well as more innovative tools such as the app PlaceSpeak that “Cowichan, BC has begun using … to allow residents to input feedback directly onto an online map”. (p.28)
The Report promotes some “best practices” that might be continued after the end of the pandemic:
Holding meetings on online platforms has provided opportunities for residents to conveniently access council meetings both live and after the fact. Some have argued that the more intimate online framing of virtual meetings (individual screens for mayor and each councillor) have permitted residents to feel more connected to councillors than previous webcasts that simply showed the full council chambers. Better video capacity would be an improvement even as meetings return to happening in person.
The move to online meeting platforms has facilitated convenient electronic sharing of council meetings and video clips of statements made by councillors during debates, which has widened the number of residents who can view council proceedings. Online proceedings have also allowed for “watch parties” and online chats where residents can meet together and discuss the proceedings in real time.(p.21, citation omitted).
One of the “mistakes” many of us often make is assuming we know what other people need or prefer. This applies to participation: thus the Report describes consulting with residents about how they want to be consulted as “commendable”. Generally, online consultation has
… the potential to facilitate more and different discussions than may take place in person. They also encourage and allow people who may otherwise have barriers related to mobility, working hours, or family responsibilities to participate. Additionally, online availability allows people to review a past presentation and offer feedback at their convenience. This added flexibility may be important in encouraging members of vulnerable communities to participate in public consultations. (p.28)
However, the Report recognizes that the opportunity to participate remotely carries with it in this context the same disadvantages as occur in other contexts (such as legal hearings, especially for unrepresented litigants):
Virtual meetings can be “colder” and less efficient when compared to in-person setups, where visual and verbal cues have an integral role in aiding and adding to discussion. Further, many residents across Canada do not have ready access to the internet in their homes. Internet services are patchy in rural and Indigenous communities. People who relied on public spaces including schools, offices, recreation centres, and libraries for the internet also lost this access following the closures of many of these spaces during COVID-19. Additionally, with the temporary closures of many workplaces and businesses, as well as a number of layoffs, residents may no longer be able to afford the luxury of home internet — a low priority in comparison to rent, groceries, and other daily costs of living. (p.20)
One perhaps minor comment here: The Report uses the term “best practices”, a label that is admittedly employed to reflect standard practices and those that have been determined to be most effective. And at least some of these practices might be the most effective for their purpose, in this case facilitating consultation. However, they might better be described as “normal practices”, when referring to the in-person meetings that have continued or resumed, and “desired practices” or “preferred practices” when considering “new” approaches, leaving open the possibility that there are even more effective and innovative ways to achieve the goal of public participation than those already employed.
The Report’s two case studies are helpful in appreciating the impact of Covid-19 measures and the practical benefits of consultation.
There were many examples of overly enthusiastic enforcement of physical distancing rules and the Report notes, “It has been reported that between 1 April and 15 June 2020 approximately 10,000 tickets were issued across the country, totaling roughly $13 million in fines.” (p.36) This is one area where the report very clearly links Covid-19 rules with the experience of BIPOC communities, as well as “people with mental health [disabilities], and people living in homelessness”, pointing out that the requirement, as in Ontario, to identify oneself when an enforcement officer demanded it, is similar to carding. Here, too, the Covid-19 decision-making processes (at least early in the pandemic) did not take into account the experiences of BIPOC communities:
physical distancing by-laws and provincial regulations handed more power to police and by-law officers, often with little clarity about the measures being policed. Yet rather than being debated in a process in which those likely to be most affected could have their say, at least some municipal distancing by-laws were enacted by mayors acting under their emergency powers. For example, Toronto’s mayor unilaterally enacted the Toronto physical distancing by-law on 3 April 2020, almost four weeks before city council meetings resumed. The mayor of Oakville, Ontario implemented a physical distancing bylaw on the same day, two weeks after cancelling all council and committee meetings. A council debate, and/or brief consultation process with residents or at least community leaders, focused on eliciting input from BIPOC and other communities likely to be affected by the by-laws, would have allowed for a more robust consideration of these specific concerns before municipalities enacted physical distancing and sanctions. (p.36)
Although many people are affected by transit decisions (“public health officials or other experts, transportation unions, city administrative staff, and transit users, among others”) and the issues involved are complex (“public safety and the reduction of COVID-19 transmission amongst the general public, the safety of staff who operate public transit, the financial hardships associated with operating public transit with significantly reduced ridership, the alternatives available to riders in the event of service reduction, and implications for the ongoing viability and improvement of transit systems”), nevertheless, decisions to reduce transit availability (in some cases to eliminate it for a period) were made in at least some cases unilaterally by mayors or executive officers (p. 38).
Yet again, some people were affected more than others. For example, while many people were able to work remotely, these were more likely to be people who owned cars or lived near services, whereas people who were “essential workers”, in hospitals, long-term care homes and grocery stores (for example) were less likely to own a vehicle and were more reliant on transit to get to work. According to the Report, “A recent survey found that young BIPOC Canadians are likely to have been the hardest hit financially as a result of COVID-19.” (p.38)
The Report makes recommendations for better municipal governance during times like these. Recognizing that executive decision-making might be necessary during the earliest days, the Report maintains that the decisions made under this approach should be “extremely limited” and a return to participatory forms of decision-making “should be prioritized” (p.40). Both the province and the municipalities have responsibilities in this regard.
Provincial and territorial legislation should be clear about the conditions justifying a municipal declaration, who has authority to make decisions, the requirement for consultation with council members, “[a] presumption of council vote on matters which would normally come before it … to be bypassed only in the most pressing of circumstances)”, a requirement that municipalities “prioritize public participation in council and other meetings and in decision-making”, circumstances justifying an extension or extensions and their permitted length and methods of communication with residents about extensions and termination (p.42). (Provinces and territories are governed by such requirements under emergency legislation; however, it is possible to avoid them, as did the Ontario government, which provided under the Reopening Ontario Act that certain orders passed under the EMCPA would continue despite the termination of the declaration of emergency: see my post “Democracy, Emergency and the Reopening Ontario Act” here).
Although recognizing that there may need to be temporary adjustments in processes, municipalities should ensure that the principles governing municipalities, including “accountability, transparency, and integrity in local decision-making” should continue to govern even during an emergency. (See my Slaw post, “Yes, We’re in an Emergency and Yes, We Still Have a Social Contract” in relation to the provincial government.)
These governing principles require continuing to hold regular council meeting where decisions are made except in the “most extreme and pressing of circumstances” and even then, the mayor should consult with members, and continuing to hold other meetings or if it is necessary to cancel them, to reinstate them “as soon as possible” (p.40). The Report also recommends that municipalities enact their own emergency by-laws “outlining both the criteria for declaring a local state of emergency and the governance framework which is to operate in such a circumstance” (p.41). (I note that such by-laws would have to interact with provincial legislation.)
Not surprisingly, the Report has specific recommendations in relation to municipal consultation with residents. These include public participation whenever possible in meetings or, alternatively, online or by telephone; participation should not be prevented through procedural requirements (such as not registering by a specific date); where actual participation is not possible, solicitation of views may substitute; accommodations to permit participation by those who might otherwise be excluded; and creation of advisory groups to help determine the best approaches, among other recommendations. The Report also urges that “decision makers … continually rethink best practices on public consultation to ensure that consultations are truly participatory” (p.42).
One might argue that all levels of government should have been better prepared for the pandemic, having had the experiences of other countries as a warning. Regardless, it seemed to come upon us quickly and government responded more or less overnight to change some fundamental aspects of our lives. People left offices leaving documents and shoes behind, expecting to return in short order. Theatres anticipated a short hiatus, with a return to the stage within two or three months. Restaurants closed quickly, reopened and have closed again. Opposition to restrictions has grown. The evolution of mask-wearing requirements illustrates how much of the decision-making has been ad hoc and sometimes not as informed as we would have liked it to be. And this continues with rather confused and differing guidance for Hallowe’en.
In other words, the responses to the pandemic by municipalities (and by provinces) have addressed the moment, wielding a blunt instrument at times when something less might have done. It is to the credit of States of Emergency that its approach has been not to take a condemnatory tone, but rather a positive one. Realization of its recommendations would stand municipalities in good stead once the pandemic is over, whenever that might be, as well as improving the process of consultation even as the pandemic continues.
While it would benefit municipalities to review States of Emergency, the hard work of adding detail to the recommendations will be a challenge. It is possible to identify circumstances in general that warrant an emergency response (see, for example, Yukon’s Civil Emergency Measures Act, which divides emergencies into peacetime and wartime emergencies with lists of types of emergencies, but allows for circumstances not listed; this is in contrast to the EMCPA, which provides the following general definition: “’emergency’ means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise”). Even a definition that seeks to be precise requires the exercise of some discretion. And part of that discretion will be the extent to which public participation is feasible. It is here that the Report’s principles governing municipal governance (and other levels of government) come into play: how can they best be achieved or if is not possible to achieve them or any of them, an explanation about why that is the case is warranted.
States of Emergency‘s contribution to the literature about the pandemic lies in part on the information it provides in detail about municipalities’ different responses to the pandemic, and in its its discussion about the limitations posed to participation by too many in BIPOC communities. However, it contributes in another way: it reminds us that the barriers facing BIPOC communities during the pandemic reveal that these merely reflect the barriers apart from the pandemic context.
