Mandatory Face Masks Raise Constitutional Concerns

Are mandatory face mask orders constitutional? Are you worried about your provincial government infringing your rights? Although most Canadians don’t seem to be bothered by the mandatory face mask orders, especially given the global pandemic, the Canadian Constitution Foundation (CCF) has written an open letter while several other plaintiffs are questioning the constitutionality of these orders before Ontario’s Superior Court of Justice.

The constitutional challenge involves about 20 individuals, entities, municipal and regional governments, and public health agencies. Among them are Prime Minister Justin Trudeau and Ontario Premier Doug Ford, Canada’s Chief Public Health Officer, Dr. Theresa Tam, and Toronto Mayor John Tory.

Are Face Masks Ineffective?

According to the constitutional challenge, the plaintiffs argue that the health measures established to combat the new coronavirus are ineffective, unjustified and illegal because they are not based on any scientific or medical evidence.

The 900-page challenge is extensive, complex and takes issue with mandatory mask orders, as well as other measures such as quarantine, physical distancing and the mandatory business closures at the onset of the pandemic.

“We have the testimonies of 43 experts in Canada and around the world who argue that these measures are not supported by any scientific evidence, that they have not been the subject of any prior clinical trial that could have proven their effectiveness, and that they are extreme under the circumstances,” said the plaintiffs’ lawyer, Rocco Galati, in an interview with Radio-Canada.

Galati maintains that there is abundant scientific literature regarding the ineffectiveness of face masks against airborne viruses and the danger masks represent for those suffering from certain medical conditions, such as breathing problems.

Charter Rights and Mandatory Face Masks

In an open letter, the CCF claims that Ontario’s June 12 order imposing mandatory face masks in commercial establishments breaches the Canadian Charter of Rights and Freedoms.

According to the open letter questioning the mandatory face masks, the order prima facie violates the right to liberty under s. 7 because it forces people to cover their faces and interferes with their bodily integrity. The CCF also argues that the mandatory face mask order infringes the right to non-discrimination on the basis of disability under s. 15 of the Charter, because it imposes a disproportionate burden on individuals with disabilities, such as asthma, emphysema or trauma-based phobias of breathing obstructions.

“[I]f a person has PTSD related to having their breathing obstructed, they should not need to discuss this with strangers in order to buy toilet paper or fill up their gas tank,” said Christine Van Geyn, litigation director at the CCF.

The CCF wants the mandatory face mask order to be repealed or at least amended due to these issues. Tested against the requirements established by constitutional caselaw, the limitations imposed by the order are not rationally connected to the objective, they are not minimally impairing and they are not proportionate, the CCF argues.

Section 1 of the Charter allows potential limitations to Charter rights and freedoms where the limitations are “demonstrably justified in a free and democratic society.”

In order to satisfy these criteria the government must show that any limits it imposes on Charter rights:

• Are of sufficient importance to warrant overriding a constitutionally protected right or freedom; and
• The means chosen are reasonable and demonstrably justified.

Constitutional caselaw expounded on the second criteria, creating the “proportionality test,” that the CCF argues the face mask order fails.

According to the proportionality test, Charter limitations must be rationally connected to the objective. For example, mandatory face masks must be rationally connected to the goal of protecting Canadians’ against COVID-19. Second, the means, even if rationally connected to the objective, should impair the right or freedom in question as little as possible. Finally, there must be a proportionality between the effects of the limitations, such as mandatory face masks, which are responsible for limiting the Charter right, such as the right to bodily integrity, and the objective.

To support its argument of a lack of rational connection to the objective, the CCF cited the relatively low local rate of community transmission in the areas under a mandatory face mask order, and questioned why the order applies to retail commercial establishments but not to other places also subject to public gatherings, such as churches or community centres.

Do you think that mandatory face mask orders are justified even if they infringe your Charter rights? Share your thoughts with us in the comments below!

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