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Is Mandatory Masking Constitutional and What  About The Science?

By Pina Di Biase :-

Is Mandatory Masking Constitutional and What  About The Science?

Mandatory masking interferes with one’s personal autonomy, so how can it be constitutional? While it is a new requirement which was only made mandatory 6 months ago, it will be interesting to follow the case law and examine how the courts will weigh individual freedoms versus fundamental justice, under the Canadian Charter of Rights and Freedoms.

Constitution vs. Civil Liberties

Constitutional scholars believe that the violation of fundamental rights is justified, in the context of the current COVID-19 pandemic, while civil libertarians argue that mandatory masking is an unjustified authoritarian position, and a fundamental indignity to have the State impose its evaluation of risk, on the individuals. 

Canadian Charter and Reasonable Limits

The constitution provides individuals with fundamental human rights, but these rights are subject to restrictions.  In the United States, these rights are embedded in the Bill of Rights and in the First Amendment.  In Canada these rights are embedded in the Charter.  Section 7 of the Charter states “everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice.”  This raises the question of whether dictating mandatory masking falls under the exception of “fundamental justice.”  Section 1 of the Charter is the limitation clause which allows courts to restrict individual rights.  Section 1 allows for “reasonable” limits that are “demonstrably justified in a free and democratic society.”  The question the courts will ask is whether the restriction imposed on individuals rights, to not be able to make their own decision on wearing a mask, is justified in our current society. 

The court has said that infringement of Section 7, “are not easily saved by Section 1,” but they have also said that limits are possible in “exceptional conditions, such as natural disasters, the outbreak of war, pandemic  and the like.” 

Meets the Test for Justification

According to the letter of the law, and as most constitutional scholars would argue, in the context of COVID 19, mandatory masking is constitutional.  This argument was made and accepted in a recent Quebec case, on July 18, 2020, where la Commission des droits de la personne et de la jeunesse (CDPDJ) considered that the violation of fundamental rights is “justified” in the context of the current COVID-19 pandemic.   The CDPDJ found that the the provincial legislation allowed the Quebec government to regulate fundamental rights and freedoms, if it demonstrates that the restriction is neither irrational nor arbitrary, and that the means are proportionate to the objective.  The Commission was of the opinion that the chosen measure could rationally and proportionally meet these requirements.

What About Science?

While a pandemic is viewed  by the courts as a justified reason for restricting individual freedoms, why has the lack of scientific evidence, as stated by the World Health Organization (WHO),  not been taken into account in the case of the COVID-19 pandemic?

According to WHO,

“At the present time, the widespread use of masks by healthy people in the community setting is not yet supported by high quality or direct scientific evidence and there are potential harms and benefits to consider.” 

No benefits have been statistically detected in the many reliable trials which have been conducted.

When assessing the benefits and the potential harms identified by WHO, it is clear that the harms/disadvantages outweigh the benefits.  The benefits include reduced potential stigmatization, making people feel they can play a role in society, reminding people to be compliant with other hygiene measures and potential social and economic benefits of encouraging the public to create their own masks.  

The harms/disadvantages as listed by WHO include potential self-contamination, headaches, breathing difficulties, facial lesions, skin irritations and difficulty communicating.  The harmful consequences of mask wearing are much more severe than the benefits. 

Dr. Anthony Fauci, member of US coronavirus task force said that masks are symbolic of being a responsible citizen, rather than a dependable infection control measure.  

The New England Journal of Medicine explained that “wearing a mask outside health care facilities offers little, if any, protection from infection.”

Sweden flattened the curve and was viewed internationally as having been very successful in fighting the pandemic, yet it never implemented a mandatory mask requirement. 

Since there is no scientific evidence illustrating that wearing a mask prevents the spread of COVID-19, how can it be “justified” in a free and democratic society?  Perhaps the question that should be put before any court is whether mandatory mask wearing is constitutional, in light of the fact that science does not provide any evidence that it prevents the spread of this infection.  How can state power be applied in the absence of a valid scientific basis, and with little to no parliamentary debate on such a fundamentally important issue.  In the absence of such evidence shouldn’t an individual have the right to make their own evaluation of personal risk?

Pina Di Biase

Lawyer

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