Canadian Civil Liberties Association weighs in on mandatory masks

TORONTO, ON., JULY 7, 2020 — As some people took to the streets and subway near Yonge and Bloor, and Yonge – Dundas to rally against being asked to, in certain enclosed spaces, wear a nose and mouth covering as a courtesy to others, they may even have the support of the Canadian Civil Liberties Association who aren’t backing mandatory masks in public settings.

Today is the first day that wearing face masks is officially mandatory in indoor public spaces in Toronto.

In response the protest on Tuesday, Toronto Mayor John Tory’s said it was understandable but not concerning due to its size.

“It is 40 people and 40 people out of 3 million isn’t a very big number. I am sure there are more who share the point of view but at the end of the day if there were 6,000 people that showed up at Dundas subway station to get on and make a point about masks I would say that is certainly interesting and I should look into that,” said Tory.

Meanwhile on June 26, the CCLA issued a statement cautioning public authorities from going “overboard” on mask regulation. “At this point, the CCLA does not support generalized mandatory mask policies that require the wearing of non-medical masks in all indoor public settings.”

The CCLA says that governments have to justify restrictions on liberty, such as forcing people to wear masks, as being both reasonable and, based on evidence. “The scientific evidence on the effectiveness of non-medical masks is mixed. This is nothing like mandating seat belts in the 1970s. A legal requirement that masks be worn in all indoor public spaces is an attempt at massive, and perhaps permanent, behaviour modification for the entire population. A legal change of this magnitude must be based on stronger evidence than we currently have.”

Cara Faith Zwibel, a lawyer and Director of the Fundamental Freedoms Program at the CCLA has expressed concern about over-zealous regulation and how it will impact vulnerable individuals.

“Wearing a mask is not medically recommended for some people and may be counter-productive for others, for example, young children who may be more likely to touch their faces if they are wearing a mask,” says Zwibel.

While mandatory mask requirements (including store policies) can create exceptions for these people, meaningful enforcement may require invasive questioning to see who can benefit from such exceptions, creating concerns about privacy rights and the sharing of confidential medical information.

Zwibel says the task of enforcement will likely land on businesses and individuals who may be ill-equipped for the task, for example, requiring a greeter at a grocery store to question customers about their health and determine who should be permitted entry without a mask. This approach, “may put both those responsible for enforcement and those subject to it at increased risk,” she says. “As with the enforcement of many rules and laws, we are concerned about who will be most impacted and whether racialised and marginalised communities will be disproportionately affected.”

Mandatory masks aren’t in line with the Canadian Government’s policy, which emphasises a balanced and voluntary approach. In late May, Canada’s Chief Public Health Officer Dr. Theresa Tam said non-medical masks or cloth face coverings are not for everyone.

“Don’t judge people not wearing a mask. Some people have trouble breathing and should not be wearing masks.,” said Dr. Tam. “We have to be understanding that for some, wearing a mask is not possible.”

She said non-medical masks should not be used on children under the age of two, anyone who has trouble breathing, is unconscious, incapacitated, or otherwise unable to remove it on their own. Dr. Tam tweeted the same message on June 19: ”Non-medical masks or cloth face coverings can make breathing difficult in high heat & humidity. When outside in a #heatwave, 2m. #PhysicalDistancing is best. Save the mask for indoors when you can’t keep your distance.”

The moderate approach advocated by Canada’s top doctor hasn’t swayed a few cities like Toronto or Montreal which are doubling down on mask regulation in a race to flatten the curve on COVID-19.

Toronto and Montreal were hardest hit by the outbreak although the overwhelming majority of coronavirus-related deaths in Ontario and Quebec occurred in long-term care facilities among the frail elderly and those with chronic conditions and not primarily via community transmission. These facts haven’t dampened enthusiasm for mask-wearing as a pandemic panacea among mask supporters despite the fact that Dr. Tam didn’t recommend wearing a mask at the peak of the pandemic. She has continually stressed social distancing, stepped-up personal hygiene, and disinfection of surfaces as essential mitigation measures, saying only that a mask provides an “added layer of protection” when social distancing isn’t possible.

It’s been oft said that freedom is the first thing to go in a crisis and there has been zero concern for civil liberties since COVID-19 hit resulting in a protracted lockdown, heavy fines for minor infractions, and now mandatory masks.

The CCLA is urging the public to consult its report released in June 2020, Stay Off the Grass: CCLA and Policing the Pandemic Mapping Project on Ticketing During COVID so that individuals and businesses will have a clearer perspective on where the fault lines are on wearing a mask and other regulations.

Despite the best of intentions behind mandatory masks to possibly stem the transmission of a potentially deadly disease, many citizens do take their rights seriously and may simply decide to opt-out of the public directive on wearing a mask in public: to work from home, not use public transportation, and boycott local, derailing the economic relaunch.

story by Deborah Rankin