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Home News Articles Are mandatory masks constitutional? Most likely yes, but with limits

Are mandatory masks constitutional? Most likely yes, but with limits

By | on Jun 10 2020

From News, Articles

Public health officials and politicians across Canada have been strongly encouraging people to wear cloth face-coverings in places where it’s not possible to maintain two metres of physical distance. The goal is to slow the spread of Covid-19.

Many believe that strong encouragement isn’t enough. Some argue that Canada should follow the lead of countries like Slovakia and Czech Republic, which have made it mandatory to wear face-coverings whenever people leave their homes for any reason. Others say our governments should require masks in groceries stores, as Austria has done. Others still think they should be mandatory on public transit, like in South Korea, Germany, and the City of Ottawa as of June 15.

A non-representative survey by Leger Opinion of 1,536 Canadians found 53 per cent agreed that masks should be mandatory in “confined spaces such as grocery stores, shopping malls or public transit,” while 37 per cent were opposed and 10 per cent were unsure. New Brunswick said it would require masks in public spaces like grocery stores but relented after a backlash.

For a variety of reasons, including the fact that faces are so closely linked with our identities, some people feel uncomfortable wearing a mask. Luckily for them, the constitution appears to limit the extent to which governments can require us to cover our faces.

Section 7 of the Charter of Rights and Freedoms states that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Supreme Court has said that “liberty” protects not only the right to be free from physical imprisonment (except in accordance with the principles of fundamental justice) but also “inherently private choices” that go to the “core of what it means to enjoy individual dignity and independence.”

Kerri Froc, a law professor at the University of New Brunswick, says that it’s possible for a person to argue that requiring her to wear a mask whenever she’s outside would violate her right to liberty in the sense that government would be “restraining (her) physical movement” unless she complies. However, Froc doesn’t think that would be a very strong argument.

Froc says a stronger claim would involve arguing that the decision about whether to wear a mask is such a fundamental life choice that making it mandatory infringes one’s liberty. To make this argument, a person would “need to bring evidence that being able to show their face in public is basic to their life—such as their identity and ability to communicate,” Froc explains.

A person might also claim that her security of the person is harmed by a face-covering. The Supreme Court has said that security of the person involves both physical and psychological integrity. Froc says that a person with respiratory problems could argue that putting something on that causes difficulty breathing could violate his physical integrity. A person with serious mask phobia could argue that forcing her to cover up could violate her psychological integrity.

Of course, mandatory masking would not be a violation of liberty or security of the person if the law is “in accordance with the principles of fundamental justice.” So how do we figure that out? There’s no set list of principles of fundamental justice, but two commonly used to challenge laws are the principles against arbitrariness and overbreadth. Former Chief Justice of the Supreme Court Beverley McLachlin explained in the case R v. Bedford that an arbitrary law is one with “no rational connection” between the purpose of the law and its impacts, while an overbroad law is one “so broad in scope that it includes some conduct that bears no relation to its purpose.”

Froc says that determining whether the law is arbitrary or overbroad would require looking at the specifics of the wording, including any exemptions, and the scientific evidence supporting the requirement. For example, if a mandatory mask law put in place to reduce the spread of Covid-19 applies whenever people are outside their homes—including places where physical distancing is possible, making the risk extremely low—then the law might be considered overbroad. If the law is tailored to situations where a two-metre distance is not always possible to maintain—like on trains and buses—then the court would be less likely to consider it overbroad. A law that doesn’t allow for exemptions for asthmatic or mask-phobic people might also be overbroad.

If a law is found to violate a person’s section 7 rights in a way that’s not in accordance with fundamental justice, the government could try to save it using section 1 of the Charter, which allows for “reasonable” limits that are “demonstrably justified in a free and democratic society.” The Supreme Court has said that infringements of section 7 “are not easily saved by section 1,” but they have also said that limits are possible in “exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.”

Froc says she suspects that attempting to justify a violation of security of the person against someone who can’t wear a mask due to pre-existing health problems as “for the greater good” would “offend a court’s sensibilities as well as the principles of a free and democratic society.”

In Quebec, the situation may be even more complicated. Premier François Legault has resisted calls for mandatory masking on public transit, and that may be because one of his first acts as premier was to pass the constitutionally-questionable Bill 21, which restricts religious face-coverings for some public sector workers and in certain places including public transit vehicles. The law is purportedly to maintain secularism but in fact targets Muslims who wear face-obscuring burkas and niqabs. “If you had a law saying you must cover your face for health reasons but it excludes religious garb as an acceptable means to comply with the law … I would argue that law is arbitrary,” Froc says. “A niqab is just as capable of stopping Covid-19 as a bandana.”

In other words, a blanket ban on leaving our homes without wearing a mask would likely violate at least some people’s constitutional rights, but there may be specific situations like public transit where the government could justify requiring most people to cover their noses and mouths.

Image by Olgierd Rudak and used under CC 2.0.

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