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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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76 thoughts onMandatory Face Masks Raise Constitutional Concerns
People NEED to question and challenge mainstream media and politicians more than ever. Having a degree in multi-media I went on to work for a Canadian Federal communications department in Ottawa, ‘news’ outlets, and a specialized pharmaceutical ad agency. Combined I have witnessed some pretty sketchy and manipulative tactics from all fronts. I am shocked that the general public has not revolted. We have created a society of followers that are handing critical thought over at the expense of basic freedoms. Put me down 1000% in support of this lawsuit or any other related suit using the covid as an excuse to limit human rights.
It is time people stood up and spoke up against all this false information that is being put out ,and also the likes of Facebook erasing any proven fact that it is false and out and out lies
Add me to any class action that may be commenced. I am fed up with those who work for us (politicians) trampling our constitutional rights and freedoms. Telling me what I can and can’t do and what risks I can/can’t take. Not to mention forcing hospitals ( in Ontario) to cancel all elective surgeries until the lock downs have ended
i have asthmatic/bronchitis i can not breathe with a mask i lost my son on July 21 he shot himself i have been trying to see his 2 children since then and courts being closed makes it even harder to get this achieved i have only 1 child left and i am not allowed to see her or my grandson do to new lockdown measures i have not been in a store since march of 2020 as i almost passed out because of the mask i am required to wear my daughter trys to keep my spirits up by video chat and my grandson keeps asking me when i will come see him all of this is so depressing that i feel if i am going to die then let me die my way and now our mp in quebec says we have to be curfewed from 8 pm to 5 am i can not take a drive to cheer myself up to even see the lights on houses something i have always done every year all my life, i have been locked up since 2020 july since when have my freedoms placed me in jail in my own home
I am a 72-year old male who had TB a couple years back (took the 6 month drug regime to eradicate that), and now has serious COPD most likely additionally caused by 1) numerous past episodes of pneumonia and bronchitis while living in a 3rd world country, and 2) an earlier history as a 1-pack/day smoker. There is zero doubt that – if I catch Covid – I will die. If anybody has a case that millions of Canuks should wear a mask to protect me from catching their germs so I won’t die, it might be me. However, I would rather die than expect such a massive courtesy from all Canadians. Of course, I wear a mask too, and can’t breath – even with a special thin layer handkerchief type of mask that cost me 17 bucks. But if I must die I would say “it should be so” and not have my personal health problems contribute to the far greater damage being caused to all Canadians socially (especially the children) because of these Draconian new “anti-Covid” measures imposed upon us recently. Importantly, I personally suffer far more from the social isolation in this new crazy world where I can’t even be with my children for Christmas than I would have with a normal life – even if that includes an earlier death.
What is wrong with old people dying – be it cancer, the flu or Covid? Because I should not die millions of Canadians should lose their shuttered businesses? Because I should be protected from my own past “errors in lifestyle” our youth should be denied the greatness of sports, competitions, choirs, and caroling this season? Oh, don’t give me this crap about the new trend to “carol in a virtual setting”. That isn’t caroling!
The very worst is that my many feeble attempts to mask myself (and unmask as I need to breathe) are what is actually probably going to kill me because I can’t maintain a constant self-sanitize routine and an endless supply of fresh masks. I believe my chances of moving corona virus from some public surface to my face because of my inability to live properly with a mask whenever I go out is greatly increasing my odds of catching this killer. “Yes”, I like people wearing masks because masks do help – if handled properly. But having “mask police” is not the way to make Canada a better place. “Yes”, I do approve of a person who is obviously sick being denied entry to public places like stores – just like people with noticeable skin problems are not allowed into swimming pools. But “no” – I don’t believe in forcing people to “don masks – or be fined”. Let each person be responsible to protect themselves, if they wish. And let there be public coercion to properly do social distancing – but not massively deny human interaction. We are, after all, very social beings and lack of socialization is extremely damaging to us – especially to our children and seniors.
I wish to give a big “thank you” to all places of business for the free masks and hand sanitizer bottles everywhere. And we do need masks in crowded and confined spaces like buses, but we don’t need to mask people sitting in their cars on ferries or walking down a sidewalk. I mean, mask yourself if you wish. But there is no need to regulate this with fines because that is not the Canada most of us want. Sure – if somebody is coughing and spiting all over the place in public – an exception at enforcement needs to be made to apprehend that person just like anyone walking down the street with a firearm.
What Canada needs are logical measures to combat this pandemic, and not maximum extreme measures regarding masking – an activity that is proven to be more dangerous than no mask unless handling masks according to very precise techniques that eliminate the fingers ever touching the face. Most people don’t know how to do that correctly and think hanging their mask from one ear or a car rear view mirror when not needed magically “cleans the mask” before it’s used again. In reality – if any corona virus was caught by the mask – now the mask is a perfect breeding ground and becomes a nearby reservoir to eventually transfer virus to the face next time the mask is put on. Unfortunately it seems easier to try to make us all into mindless sheep with “blanket laws” than tackle the problem using far better flexible protocols tailored to the specific situation, place, or mode of transport. So Bonny, please stop your daily unbearable monotony and start inventing innovative solutions tailored to specific needs … and you will discover that most British Columbians (and other Canadians too) are extremely supportive of public decisions. Just make sure the decisions are correct decisions and not an exercise to discover how well more autocracy and sheer totalitarianism might work.
Thank you, Chris. I agree with you totally.
Donna
I also have a compromised immune system and am legally exempt from wearing a mask, I go out daily to help seniors get groceries and to help keep them safe. No mask wearing and it’s been a year, I have not been sick once, but people are losing their businesses and family members from suicide!! This is crazy! Open up and let people live life again, if I get sick so be it! I know I have to take precautions, I’m ready to live life again !
My friend was informed by a CBC insider that they are required to produce 80% COVID news coverage with 20% left to other news items. The government is fomenting fear, depression, anxiety, and isolation which is causing a mental health epidemic. I cannot wear a mask due to PTSD and allergy issues. I cannot get a letter of exemption because my doctor and the whole medical centre no longer exists. I am told to go to a walk in clinic because no doctors in my community are taking new patients. There are numerous beds available in the hospitals; there are staffing shortages as medical personnel exit the medical field with PTSD and fear, leaving few to care for patients. Manditory vaccines for medical personnel will get rid of any who are left. Nurses are coaxed back to work with triple the wage promises. Violence is starting to erupt with attacks on East Indians as supposed “super spreaders” although their numbers in ICU are far less than Caucasians. Society is being destabilized with maskers vs anti-maskers. PIPA is violated as medical information is explained to complete strangers. Even then, I have been yelled at several times now in public and feared for my safety. I am a senior. Even wearing a mask temporarily does not stop the abuse. Some people think they are self-appointed experts on mask wearing and are becoming abusive. This weekend, a man was demanding that Christians wear masks in the local park. This government is responsible for destroying the fabric of our society. They have destroyed our medical system. They are holding our citizens under house arrest with no reasonable cause. They should be charged with treason and removed from office, both provincially and federally. CBC needs to be terminated.
I agree. Thanks for writing. I am sorry you have to face abuse from strangers while out. My father has been yelled at while shopping as well, despite following all rules. This has been done to him by young people. So much for care and consideration for our elders, who are supposed to be the vulnerable ones. It seems many who act entitled, and expect others to suffer for them, are the same ones calling other people selfish when they refuse to do so. I hope this case is won.
I don’t think anyone should be forced to wear a mask or be locked down! Especially for a 99.8% survival rate not to mention the PCR TRSTING IS A TOTAL FAIL! The roles should be reversed if your scared stay home your sick stay home your old or compromised stay home. I have a disease that makes it difficult to wear a mask, I already suffer with anxiety and now my anxiety is even higher bc I’m scared to go out and be harassed by maskers! This is insanity! Also Tam the man and Bonster the monster should be questioned Trudeau needs to be in jail!
Regina, I couldn’t agree with you more! i suffer from phobias when waring masks in stores. not to mention I have difficulty breathing when wearing a mask .i TRY to compromise by not covering my nose so that I can still breath (somewhat) only to get into arguments and at times it almost comes to blows. this is obviously planned by the governments to create just this kind of reactions within the populace.
I have several medical issues including trauma ptsd use of an inhaler phobia and asthma and yet as recently as today I was escorted out of a store for not wearing a mask. Even after explaining I was medically exempt…..I was told “we aren’t accepting that reason anymore”. This is the second time this week and apparently is a growing trend in Ontario. How can they do this to someone on a disability with medical reasons? Curb side pick up requires a minimum purchase at some stores which is above what I went out to get…….my medications can’t be 3rd person pick up…..and due to my dogs they won’t deliver. My freedoms are being removed from me and I refuse to be treated like a caged animal because I need bread and milk……..and can’t wear a mask. Why do I have no rights at all? Yes I am outraged and I think something needs to be done!
People with medical doctors notes should not have to wear masks. It is now either take a medical leave or wear a mask, or face covering. Why should you have to explain traumatic incidents over and over again or lose your job. Please add me to the list.
I 2nd your sentiments. under pipeda, you do not need to explains any medical condition. you just need to state your exempt. ( i know stores , cops, security personnel etc., do not want to accept the fact that they have no right to demand what your condition is). no even a “note from your doctor is contrary to our privacy rights in this county.
I don’t feel that there is enough evidence to support any of the actions that have been taken so far. If we really want to make change and protect the vulnerable, then let’s do something about the care in institutions, homes for the elderly, etc., but instead we have further isolated them. I guarantee that the number of deaths due to Covid have been grossly exaggerated. My civil rights have been trampled for the sake of appeasing the public hysteria that is being fanned by the media and anyone profiting from the pandemic. To what end will this virus grow in the voice of media? I has gone from “can be killed with soap and water” to being treated like the plague. When will common sense prevail?
To add to this comment. Now BC has imposed a mandatory mask in all public places and have backed it up with fines and policing. I totally understand the individual right to wear a mask because it makes you feel safer, but what happened to the choice of “not wearing” a mask for personal, or medical reasons that I should not have to explain to every door greeter in every store. And now, not only is it down to public shaming, threatening to others safety, it is a criminal offense to not wear a mask in public. Bonnie Henry just commented this morning,”for those that cannot wear a mask, you can order on line, or just stay home”. She assumes that everyone has a credit card, let alone a bank account, a vehicle to pick, the computer and internet savvy to order online, etc. It’s not only discrimination, it’s a violation of our very basic human rights, the right to privacy (our medical situation, physical or mental), the right to choose (our medical/non medical application to our health), the freedom to move (within our community, province, and country), the right to choose whether a vaccine is the right choice for our health, and the right to access of basic needs like groceries, medication, gas and other necessities of life. The additional stress of having to navigate the public opinion, oppression, and separation from family, friends and neighbours, is doing more harm to us than any virus every will. Maybe we need to be looking at the medical profession in a different light. Maybe we need to ask ourselves, does the medical profession have the right approach to this virus? Is the issue that they cannot control it with their methodology, medicine and science. Maybe it’s just as simple as “let the virus run its course and strengthen your immune system”. We are over medicated to the point of destroying any human resilience to this “virus” and the next one coming. In my opinion, we are incubating the virus in our approach to controlling it, and it is growing into a super virus. Not an expert, just my observations of past and present.
I am so tired of being condemned because I can’t always wear a mask with my anxiety, or half wear it. What’s next? I have isolated, I always distance myself, I see many others who don’t. I have been denied grocery services, ridiculed by people in stores, and stared at because my nose isn’t covered. The government is creating scapegoats in the public. What rights do we really have? I have no choice as a single parent to shop, whether I panic or not. What’s next?