Page - 181 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

181The Duty to Govern and the Rule of Law in an Emergency Challenges for the Rule of Law Against the requirements of the Rule of Law, the directives issued fur- ther to extraordinary powers may leave much to be desired. Though such directives will be published, their promulgation and diffusion may not have the prominence of legislative enactments and so be less readily available and known to the community members. Some members may struggle to distinguish between directives that have the force of law and recommendations that have the force of advice. In turn, the needs of an exceptional or emergency situation may require a great number of directives in quick succession, thereby increasing the risk of contradiction between directives. These same needs may require those with responsibility to govern to communicate the con- tent of a directive before formally enacting it,13 with the possibility that the directive will be given retroactive effect. The need for quick action may result in directives burdened with unanticipated ambigui- ties, some of which may emerge in debates surrounding enforcement. And this same need for quick action in response to rapidly changing circumstances may disrupt any sense of stability in the state of the law, such that the community’s members may have little confidence that yesterday’s set of directives remains the same today.14 Such departures from the Rule of Law may be expected when it comes to the exercise of extraordinary powers. The law-making pro- cedure established for the normal situation privileges deliberation so as to guard against error and misjudgment, including errors with respect to Rule of Law requirements. Having set such procedure aside in favour of extraordinary powers, rapid decision-making is liable to depart from the Rule of Law. The exigencies of the situation may excuse many such departures, where failures in promulgation, clarity, coherence, non-retroactivity, and stability all have their source in the need to respond to circumstances. Yet, even when excused by the exigencies of the circumstances, departures from the Rule of Law cannot be total or far-reaching, for, if they are, the government’s directives will fail to achieve what all 13. See Daly, this volume, Chapter B-6, for how the Government of Ontario’s emer- gency alert notice in April 2020 predated the corresponding regulation. 14. A compendium of the many orders issued by federal, provincial, territorial, municipal, and First Nations’ authorities helps to illustrate the possible risks for the Rule of Law: see Craig Forcese, “Repository of Canadian COVID-19 Emergency Orders” (updated on 25 May 2020), online (blog): Intrepid <www.intrepidpod- cast.com/blog/2020/3/19/repository-of-canadian-covid-19-emergency-orders>.