The Chronicle Herald (Provincial)
• Pandemic rules lack clarity: experts /
Family bubble confusion illustrates case, they say
Confusion about whether only family households qualify for the new family bubble policy is the latest example of a government pattern of authoring unclear emergency public health rules and then telling Nova Scotians the rules are more restrictive than they actually are, says a Dalhousie University law professor.
“The best example of this is Premier Stephen Mcneil’s famous order telling Nova Scotians, 'Stay the blazes home,'" said Wayne Mackay, an expert in constitutional law.
“There’s nothing directly in the order that requires anyone to stay the blazes home. It may be iconic and might have captured a lot of interest but it was never a real law.”
The Nova Scotia government issued a news release Friday introducing the family bubble, allowing "two immediate family households to come together without physical distancing.”
The released further emphasized the policy meant “two immediate family households are allowed to interact without physical distancing and that the two households must be mutually exclusive.”
The next day the premier clarified in a tweet that people without families could also partner with another household of their choice.
“If you don’t have immediate family to bubble with, you can choose another household to be in your immediate family bubble," stated the tweet.
Meanwhile, the clarification has not been included in the province’s COVID-19 emergency order, stating that “a family household may engage in close social connection with another immediate family household without adhering to the social distancing requirements of two metres or six feet.”
The term “immediate family” can be interpreted as a person’s closest relatives, such as parents, siblings, and children. New Brunswick and Newfoundland permitted a similar two household bubble before Nova Scotia and under each province’s emergency order neither includes the word family in its definition of the policy.
The Nova Scotia government would not specifically address why it chose to include the word family in the definition, or if it would omit the reference.
Spokeswoman Marla Macinnis said in an email that "it’s up to Nova Scotians to figure out who is in their immediate family bubble," and "that this is a first step toward opening up our social networks in a measured way.”
Mackay and other legal experts have criticized many of the public health rules as being vague and hard to follow. For example, as the rules stand now, even members of the same household, including family members, could be ticketed under the emergency health orders for not social distancing.
Emergency orders in other Atlantic provinces specifically exempt people in the same household from social distancing. In Nova Scotia the rule states: “All persons present and residing in Nova Scotia must maintain social distancing of two metres or six feet and keep social gatherings to 5 persons or less."
Despite the province's public health order containing a "patchwork of rules that are hard to find, complicated and difficult to interpret," the law professor said the government has been effective in making the rules far stronger on the ground than on paper.
Katherine Fierlbeck, a Dalhousie University political science professor, agrees.
“What’s interesting to me is that there has not been too much public pushback against the blurriness of government declarations,” said Fierlbeck.
“You had the government saying here’s the rules: if you want to go for a walk don’t drive to get to your destination. The public health order doesn't prohibit anyone from getting in their car and going for a walk in the woods. But then you have the government suggesting this is against the rules. They are mixing up what is legally prohibited with what their opinions are of what you ought not to do.”
Robert Strang, the province’s chief medical officer of health, has ventured beyond the parameters of the public health order to keep Nova Scotians indoors. He’s recommended people drive as little as possible, though there is no rule against driving during the pandemic. He’s also advised parents in custody arrangements keep the child in one location during the pandemic. But a day later walked back the reccomendation, asking parents to follow court orders and family arrangements.
The pair has demonstrated an authoritarian, sometimes bullying style of managing the pandemic, said Mackay. While that strategy has proved largely effective in keeping the public in line, the government has perpetuated its unflattering reputation for going against the standards of democratic governance, said the law professor. He pointed to the province’s efforts to hide important information detailing the spread of the virus. In late April Nova Scotia Health Authority mapped out “COVID clusters” by postal code that identified higher rates or spread of the virus. That list was never made public.
Mackay argued the premier and Strang have effectively taken control of managing the pandemic on their own. That centralization of power exacerbates the government’s reputation of secrecy but also reinforces the benefits that can come with limiting public accountability.
"Once government and those in authority see the benefits and efficiencies of being able to dictate conclusions with people rather than consulting and debating there’s a danger that some of those tendencies will continue POSTCOVID-19 hangover," said Mackay. "How many of these less democratic characteristics will remain in day-to-day governing?"
The province would not respond to questions about the public statements Mcneil and Strang have made that are included in this article.
Fierlbeck said Mcneil and Strang’s outwardly bullish approach to keeping people in check stands in contrast to Nova Scotia's relatively lenient public health order compared to other provinces
"It’s interesting to look and to compare them," said Fierlbeck. "Nova Scotia had a very liberal response to the pandemic on paper."
For example, provinces like Ontario, New Brunswick and British Columbia had shut down all non-essential businesses, while Nova Scotia has permitted almost all retail and not-for-profit businesses to remain open during the pandemic. New Brunswick has halted temporary foreign workers from entering the province while Nova Scotia did not. Quebec prohibited construction activity, and put regional travel restrictions in place. Besides requiring social distancing, Nova Scotia didn’t put any restrictions on either.
Yet Fierlbeck said Mcneil and Strang have gotten away with a kind of command and control approach to managing the pandemic. They’ve succeeded using a strategy called governmentality; that a government can get the population to think in a certain way that it will police other parts of the population.
“You could say well that’s a good thing because if everybody does what they think the law says, even though it doesn’t, then we’re as a society ahead because everybody is minimizing their footprint," said Fierlbeck. "But then again maybe we were allowed to have a much less onerous form of a lockdown.”