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Face mask mandates most likely constitutional

by Grailing Anthonisen - September 04, 2020   10432 Views   7 min
Face mask mandates most likely constitutional


Mask mandates are unconstitutional and hinder people’s rights


Inaccurate as a whole (with reservations)

An article on the group ACT! For Canada’s website claims that mandating face masks during the ongoing international COVID-19 pandemic is unconstitutional, unenforceable and hinders a variety of rights enshrined in Canadian legislation. This claim is inaccurate, with two reservations: the first is that there has been no formal national ruling on the question; and the second is that there have been concerns raised about how to correctly and appropriately enforce the wearing of masks, especially with regards to those who have medical reasons to not wear masks but are not expected or required to disclose that information under the law.

Here’s how we arrived at our verdict. From reliable sources, we analysed the evidence put forth by ACT! For Canada to support their claim and found several false assertions. We then looked at mask mandates across Canada and the context in which they were issued. We examined how human and constitutional rights work in Canada to see if requiring people to wear masks is unconstitutional. We then studied concerns about individual privacy and about enforcement of mask mandates and researched mask exemption cards.

What evidence does ACT! For Canada give?

ACT! For Canada cites the names of several pieces of federal legislation specifically when making their claim that mask mandates are unconstitutional and hinder people’s rights. In addition, they include several false assertions, such as that the pandemic is “over”, and masks do not slow the spread of COVID-19. They also provided templates for an unofficial “mask exemption” card, which have faced criticism from a human rights commission and municipalities. The legislation the group lists does not actually provide a case against face mask mandates.

There have been concerns raised about how to correctly and appropriately enforce mask mandates. Because the mandates are not overly broad or arbitrary, they can require people to wear masks in specific situations. The Supreme Court has said in the past that limitations on the Charter are possible in exceptional cases, like epidemics. In the case of Quebec, the mandate has already been ruled to conform with their human rights code. The privacy legislation, however, has no bearing on face masks.

Checking the assertions

To bolster their claim, ACT! For Canada asserts that the pandemic is over and that face masks are ineffective. They are wrong on both counts.

COVID-19 cases and deaths have been growing since December 2019 around the world and continue to increase - the pandemic is definitely not over. The number of new infections may have been decreasing in Canada since June 2020, largely as a result of sanitary measures being observed. With the progressive relaxation of measures such as confinement, the reopening of schools, and the cooler months ahead requiring people to spend more time inside and in closer proximity, the number of new infections may rise again. And as the American Centers for Disease Control and Prevention notes, there is not yet a cure or a vaccine for COVID-19.

There is a growing body of evidence to support face masks’ effectiveness in slowing the spread of COVID-19 from journals like the Lancet and the International Journal of Nursing Studies among many others. Masks protect in two ways: they protect those who wear them, but most importantly, they protect others around them. According to the US CDC, asymptomatic and pre-symptomatic people can still transmit COVID-19. This makes face masks an important precaution in addition to physical distancing and frequent hand hygiene, as people may not realize they are infected and putting others at risk.

How do mask mandates work?

In Canada there are mandatory mask laws and by-laws in a number of provinces, such as Quebec, Nova Scotia, Newfoundland and Labrador, and in various cities across Ontario, like Ottawa, that require people to wear masks in indoor public places and on public transit. Many have exemptions built in, particularly for children under the age of two – the World Health Organization recommends no masks for those under the age of 5 - and for those with legitimate medical conditions or disabilities, such as respiratory problems or cognitive difficulties that would prevent them from safely wearing a mask. For others, as we noted in another fact-check, wearing non-medical masks does not cause serious health risks.

Notably, while there are people who have these conditions, not everyone who does are unable to wear masks. For example, the American Lung Association told ABC News that “People with underlying chronic lung disease, such as [chronic obstructive pulmonary disease] or asthma, should be able to wear a non-N95 facial covering without it affecting their oxygen or carbon dioxide levels.”

All of Canadian provinces and territories have declared either states of emergency or states of public health emergency and enacted emergency measures to help contain the spread of COVID-19. According to the Canadian Civil Liberties Association, these were declared according to provincial or territorial legislation. General emergency laws grant premiers or governors in council broad powers to act according to this legislation, while public health emergency laws grant health ministers or the chief medical officers broad powers to act according to this legislation. This can include shutting down businesses and preventing large gatherings of people.

How do human and constitutional rights work in Canada?

According to the Canadian Human Rights Commission, human rights lay out the way people expect to be treated, as human beings and describe how everyone is entitled to a life of equality, dignity, respect, and free from discrimination. In Canada, they are protected by provincial, territorial, federal and international laws, including the Canadian Human Rights Act, which guarantees equality when they are employed by or receive services from the federal government, First Nations governments or federally-regulated private companies. It prohibits discrimination on the basis of race, religion, age, sexual orientation, or disability. Provincial and territorial human rights legislation and agencies are similar and many of them apply the same principles. Mask mandates already have exceptions for the cases of disability built in.

According to the Canadian Human Rights Commission, the Canadian Charter of Rights and Freedoms is part of Canada’s Constitution and it protects Canadians’ rights to be treated equally under the law. It only applies to governments and not private businesses or citizens.

Are mask mandates unconstitutional?

While the group claims mask mandates are unconstitutional, they do not provide a reason for this claim. Quebec’s human rights commission released a report that found that the mask order conforms with the Charte des droits et libertés de la personne du Québec.

The Canadian Constitution Foundation released an article that said mask mandates most likely were constitutional. They note that mandates could be deemed unconstitutional if they were overly broad or arbitrary. For example, if they completely banned leaving the house without a mask or did not include exemptions for those unable to wear a mask. These are not the case for the Canadian mask mandates.

In addition, Section 1 of the Charter allows for “reasonable” limits that can be “demonstrably justified in a free and democratic society.” Notably, Canada’s Supreme Court has found that Section 1 limits are possible in cases of “exceptional conditions such as war, natural disasters or epidemics.” The mask mandates come in response to an international pandemic, which corresponds to an exceptional condition.

What about privacy concerns?

The group’s claim also includes Personal Information Protection and Electronic Documents Act (PIPEDA) as a reason why face masks hinder rights. PIPEDA regulates the private sector and outlines legally obtaining someone’s consent when collecting, using or disclosing their personal information. This has no relation to individuals wearing face masks as they are not information that can be collected.

What are the concerns about enforcement?

There are difficulties around enforcing mask mandates in places like Ottawa and Toronto where the by-laws prevent businesses from asking for proof of why someone cannot wear a mask. This is because legitimate reasons for not wearing a mask are related to medical history or disabilities and these questions could contravene human rights legislation. However, the problem of enforcement does not lie with those who are legitimately unable to wear a mask. It lies with those who chose not to wear one, despite being able to do so.

What are mask exemption card?

The group included templates for “mask exemption” cards and other anti-mask groups have been selling such cards online. In a tweet, the Ontario Human Rights Commission disavowed these cards and urged people not to use them. The city of Edmonton initially instituted official cards, but then cancelled the program within days due to widespread abuse. Toronto Public Health does not endorse such cards.

What is the importance of finding reliable information for your provincial or local context?

Because mask mandates and emergency laws are specific to your province and local context, it is important to refer to legitimate provincial and local authorities. Particularly in this case as, ACT! For Canada’s About page declares that they are against “political Islamism”, while, they have faced criticism for Islamophobia and been labelled “extreme right” and have previously had their event cancelled by their venue for promoting discrimination and Islamophobia. Using mask exemption cards without legitimate a reason goes against the advice of human rights groups.

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Canada Public Health

The World Health Organization

The American Centers for Disease Control and Prevention

The Lancet

The International Journal of Nursing Studies

Government of Nova Scotia

Government of Quebec

Government of Newfoundland and Labrador

Ottawa Public Health

ABC News (Quoting the American Lung Association)

Canadian Civil Liberties Association

The Canadian Human Rights Commission

Canadian Charter of Rights and Freedom EN

The Department of Justice

La Commission des droits de la personne et des droits de la jeunesse

The Canadian Constitution Foundation

The Supreme Court of Canada

Office of the Privacy Commissioner of Canada


CTV News

Digital Extremisms: Readings in Violence, Radicalisation and Extremism in the Online Space

CBC News


ACT! For Canada

Mask mandates are unconstitutional and hinder people’s rights


Inaccurate as a whole (with reservations)

 September 04, 2020


Learn more about our fact-checking methodology HERE.

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