(Tiffany Goodwein/CHATNewsToday)

By Liam Verster

Constitutional scholar says Charter argument not valid in fight against masks, other COVID restrictions

Nov 29, 2020 | 8:06 PM

An expert on Canadian constitutional law says the argument that public health regulations imposed by the provincial government infringe on personal rights and freedoms are invalid.

Professor Eric Adams, a Constitutional Scholar who teaches the very subject at the University of Alberta’s School of Law, says the big argument right now is over mandatory mask bylaws, which people argue infringes on Charter of Rights and Freedom.

While an argument could be made that requiring a mask or face covering could be seen as an infringement on a person’s freedom of expression, Adams says in this scenario,with the ongoing COVID-19 pandemic, it would be very likely to fail in a court of law.

He says the Charter of Rights and Freedoms is not a document set in stone.

“In a normal state of affairs, we would think that the Charter protects your ability to wear or not wear what you want on your face as a matter of your expressive freedoms,” says Adams. “And all of that is true, but where the Charter provides a right to Freedom of Expression, it also, in Section 1, declares that our Charter Rights may be reasonably limited in a free and democratic society.

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“So, the question is ‘Would a limit on your expressive freedoms not to wear a mask, is that reasonable during a pandemic during which a government is trying to control the communicable spread of a deadly disease?”

He says those limits are considered reasonable, and though the matter could be brought before a Court of Law, it would be almost impossible to be used to overturn any rules or regulations that have been put in place to protect the greater population.

“Not that they couldn’t make the challenge, but the prospect of a court of law looking at the current public health emergency in which over 500 Albertans have died; in which sometimes there are more than a dozen deaths in a day; in which there are thousands and thousands of infected persons, and say that [the health measures] was an unconstitutional infringement on somebody’s liberty not to wear a mask?” says Adams.

“That’s just hard to fathom given the way our constitution is structured, which says that of course we have rights and freedoms, but from the very creation of the Charter it has been recognized that our rights and freedoms are subject to reasonable limits, and that governments will have to pursue objectives which sometimes limit those rights and freedoms, often in the name of the public good.”

Adams adds that those who rebel against the health measures and bylaws may be inadvertently doing exactly what they think is being done to them. However, in those situations it’s not the Freedom of Expression being infringed upon, but instead Section 7 of the Charter of Rights and Freedoms: Life, Liberty and the Security of a Person.

“[The measures for] dealing with the pandemic, it’s also an expression of protecting rights. It’s protecting the rights of vulnerable people, it’s protecting the rights of the elderly who are far more susceptible to this disease, and it’s protecting the rights of anyone engaging in the health care system. Because if the health care system is unable to function as a result of COVID-19, it also has tremendous impacts on cancer patients and anyone else that’s using the Canadian health care system.”

On the topic of mask laws and policies, Adams says municipal bylaws, such as the Face Covering Bylaw in the City of Grande Prairie, are enforceable as Municipal Governments have the authority to establish laws designed to protect people. The only way this bylaw could have been seen as illegal would be if it went against laws involving face coverings set out by the Provincial Government, of which there are none.

On the topic of masks and who is required to wear them under these bylaws, Adams does say there would be a “very small category of people” who could be exempt from the mandatory mask laws. He says it would have to be for extraordinary health reasons, pointing to asthma specifically, which is a spectrum disorder and affects people differently, and exemptions should only apply in the most rare and extreme cases of asthma.

Businesses, meanwhile, have a duty to protect their staff and patrons, and a duty to follow laws laid out by governments, which includes mandatory mask bylaws. However, they must make sure those policies do not infringe on anyone’s rights, and must provide alternatives to those who do fit the exemption criteria. Those alternatives could include providing a select time for that person to shop when no one else is there, or delivery or curbside pickup options.

Outside of those with medical exemptions, businesses do have the right to deny entry to someone who won’t follow the laws or store policies.

“An individual who has a political objection to wearing a mask is certainly not covered, and a store would be well within it’s rights to refuse service.”

Adams adds that with the stress of the situation, there is a risk to front line workers of verbal and sometimes physical abuse when enforcing these policies. Adams says he hopes that employers are providing resources and training to their staff so they can deal with confrontations and not be put in harms way when trying to maintain guidelines set out by either the businesses themselves or the government.