Canadian Constitution Foundation suggests amendments to mandatory mask order in Ontario

The Canadian Constitution Foundation has questioned the constitutionality of orders requiring face coverings in certain Ontario municipalities.

In a letter to Dr. Nicola Mercer, medical officer of health at the Wellington-Dufferin-Guelph public health region, the CCF said that a June 12 order imposing the use of mandatory face coverings in commercial establishments breached s. 7, s. 15 and s. 8 of the Canadian Charter of Rights and Freedoms.

The order prima facie violates the right to liberty of the person under s. 7 because it forces people to cover their faces and interferes with their bodily integrity, the CCF said. It also infringes the right to non-discrimination on the basis of disability under s. 15 since it imposes a disproportionate burden on persons with disabilities, including breathing problems like asthma and emphysema or trauma-based phobia 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 order does include an exemption which allows such individuals to forgo masks, but the CCF argues that requiring a person to disclose private health information in order to claim an exemption infringes privacy rights under s. 8, particularly the right to informational privacy. Forcing such a disclosure may cause a person with trauma-based phobia to re-experience the traumatic experience and suffer reputational harm.

The CCF said that the order should be repealed or at least amended due to these issues. Tested against the requirements found in R. v. Oakes, the limitation imposed by the order is not rationally connected to the objective, is not minimally impairing and is not proportionate, the CCF said.

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 area 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. The CCF said that the order should be amended to require masks only when physical distancing of six feet is impossible.

The order is not minimally impairing because it fails to consider its impact on the privacy and equality rights of persons with disabilities, who risk reliving trauma and experiencing reputational harm, the CCF said. Therefore, the CCF asks for an amendment to the effect that an employee of a commercial establishment should accept a claim for a medical exemption at face value, without requiring a disclosure of private health information.

The CCF then said that the $5,000 fine imposed on commercial establishments who do not enforce the order is disproportionate, given that much lower fines were implemented during the peak of the outbreak. The order should be amended to set a $500 fine instead, the CCF said.

“It is our strong preference not to commence litigation, when simple amendments to the Order would achieve the goal of protecting both the health and the rights of citizens,” wrote Van Geyn.

The CCF intends to send letters to other Ontario communities with similar orders either implemented or contemplated, such as York Region, Kingston and Waterloo.