A CONSTITUTIONAL ANALYSIS OF FACE MASK LAWS.

• Author: Scott, Donald

Introduction Public Health in Canada Federal, Indigenous, Provincial, and Municipal Authorities under the Constitution Federal Authority Indigenous Authority Provincial Authority Municipal Authority Section 1 of the Charter--the Limitation Clause Section 7 of the Charter--The Right to Life Liberty and Security of the Person Section 2a of the Charter--Freedom of Conscience and Religion Section 2b of the Charter--Freedom of Speech Conclusion Introduction

The very word "epidemic" can strike fear and even panic into the most stolid of individuals. Yet, the human experience with epidemics has a long history, with recorded epidemics going back to 412 BC and ample evidence of earlier but unrecorded epidemics. (1) In 412 BC, Hippocrates first coined the word "epidemic" for medical purposes and noted the symptoms of the earliest example we now have on record. The language of transmittable disease has shifted, and since 412 BC, we have used terms including plague, outbreak, pestilence, virus, crowd disease, and infectious disease. In more recent times, epidemics and pandemics (an outbreak over a wide geographic area or the world) have entered the public lexicon with brief descriptions of the disease itself, such as Ebola, Spanish Flu and COVID-19. No matter how we describe them, epidemics and pandemics have significantly impacted human development and history.

Using face masks to combat diseases was a late development in the history of airborne diseases. Mask use developed as an early attempt to fight "corrupt air" that began in the 1600s. Cambridge graduate Lien-teh Wu made a pivotal breakthrough to fight a plague in Manchuria in 1910. (2) Wu designed what would later be modified into the N95 mask, which is now widely used worldwide. (3)

Both government and legal responses to pandemics began to crystallize and take greater hold at the time of the Spanish flu. Mask laws came into effect in various parts of the world, with varying degrees of enforcement and success. History appears to repeat itself with the legal response in the context of a pandemic, including mask-wearing ordinances being implemented.

For example, at the time of COVID-19 pandemic, governments throughout North America mandated wearing a mask in specified circumstances. The magnitude of the government response to COVID-19 has resulted in face mask laws coming under sharp scrutiny and focus. Canadian case law is developing on this issue at the time of writing. Reported decisions of legal challenges from the United States and commonwealth jurisdictions demonstrate potential trends Canada may experience. (4) The Florida decision in Machovec et al v Palm Beach County dealt with the constitutionality of a mandatory face-covering law enacted in response to the COVID19 pandemic. (5) The Circuit Court of the Fifteenth Judicial Circuit for Palm Beach County, Florida, noted that the respiratory illness spreads quickly from person to person, causing severe illness and deaths. (6) The Court also recognized that there was no known cure, no effective treatment, and no vaccine at the time. (7) The spread can occur when asymptomatic people unknowingly infect others. (8) Based on this background and its analysis of the Mask Ordinance, the Court concluded that "no constitutional right is infringed by the Mask Ordinance's mandate to wear a facial covering, and that the requirement to wear such a covering has a clear, rational basis based (sic) on the protection of public health." (9) The Court cited three other Florida courts which have addressed the same issue and came to the same conclusion and decision. (10)

Wearing a face mask in public spaces is no longer foreign to Canadians after the outbreak of COVID-19. What has been the public health justification for the mask mandate? As of the date of writing, there seems to be strong support from the medical community that the face mask primarily protects others and prevents transmission with a dual purpose of protecting the wearers. (11) From a legal and philosophical perspective, the private right gives way to the public good. This approach is consistent with the philosophical stance of limiting harm. One consistent theme that tips the balance as we shall see is an implied or an explicit endorsement of duty to others throughout the jurisprudence. This duty to others and to protect others is the prevailing theme where there is uncertainty or when rights are in dispute in the circumstances of public protection. The balance of interests in all diverse cases is no easy task for an elected official or court to achieve, as demonstrated throughout this paper. The focus of this article is not on the political debate of whether a face mask law should or should not be enacted; instead, the focus is on the constitutional legal analysis of the law once it is passed.

The question that arises explicitly concerning the mask laws in Canada is this: Are mandatory face mask laws constitutional and in accordance with the Canadian Charter of Rights and Freedoms at the time of an epidemic or pandemic?

The framework for this paper will be a brief examination of the public health law in Canada and the authority of each level of government: Federal, Indigenous, Provincial, and Municipal, to mandate a mask law and the constitutional jurisdiction for such a mandate. The following section considers the impact of relevant health measures imposed by governments that have fallen under the scrutiny of the Canadian Charter of Rights and Freedoms. (12)

Several authors have examined the constitutional tension between public health and civil liberties. (13) The literature, however, is not extensive. Indeed, the specific topic of the constitutionality of face mask laws has not been the subject of a detailed analysis. (14) This article provides a detailed doctrinal analysis of how Canadian courts are likely to look at some of the more pertinent Charter issues in the context of pandemics or epidemics and potential challenges to mandatory face mask laws based on analogues from the legal precedents. The analysis includes specific focus and consideration of Charter sections 1, 2, and 7. Finally, this article concludes with a constitutional analysis of the developed case law to determine if challenging government-imposed face mask requirements are likely to succeed. Throughout, we tackle key arguments that could be made in support or opposition. Unique circumstances could bring many additional sections of the Charter under scrutiny. However, this paper discusses the broad challenges that could be seen once the laws are enacted, focusing on more relevant and applicable areas.

The authors conclude that each level of government in Canada has constitutional authority to enact face mask laws to combat an epidemic or pandemic, and such laws will survive Constitutional and Charter scrutiny provided the law is supported by reasonable evidence and tailored for the circumstances. We conclude the potential Charter challenges have merit, but in each case, the section 1 proportionality test lands in favour of upholding face mask laws to protect public health.

Public Health in Canada

The book Canadian Health Law and Policy introduced "public health" as "what we, as a society, do collectively to assure the conditions for people to be healthy." (15) The public health law has been defined as the "study of legal powers and duties of the state to promote the conditions for people to be healthy ... and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the protection or promotion of community health". (16)

From this definition, we can see that public health law in Canada is dedicated to studying the balance between societal interests and individual interests in public health matters. Society has placed limitations on personal interests to protect societal interests. Society is interested in protecting and promoting public health, sometimes by curtailing individual interests protected by laws. However, the idea that rights and freedoms are bound to an extent by the rights and freedoms of others is not foreign to most living in a democracy. For instance, individuals cannot infect others with viruses or diseases. It is an offence for a person with HIV to expose another person to a significant risk of infection of this disease through sexual intercourse without the prior informed consent of the other person. (17) Even if the complainant is not infected, the courts have held that "the realistic possibility of transmission of HIV" would be considered "a significant risk of serious bodily harm." (18) It is also an offence for a person to inject another person with a needle full of infectious viruses. (19) Legislation in some provinces mandates immunization against diseases and viruses either generally or in an emergency. (20) Laws that prohibit a person from smoking or vaping in enclosed indoor workplaces and public spaces are prevalent across Canada and have been ruled constitutional time and again. (21) These are merely instances where societal interests in public health outweigh individual interests in autonomy over one's body regarding immunization, privacy in one's health status, or liberty in personal choices such as smoking or vaping.

Federal, Indigenous, Provincial, and Municipal Authorities under the Constitution

One constitutional challenge to a mask mandate would be whether its issuing government has the authority to enact face mask laws in the circumstances of an epidemic or pandemic. Canada has four distinct levels of government that can independently or in concert potentially pass face mask laws. This section examines whether each level of the government has the constitutional ground to enact such face mask laws.

Federal Authority

The division of powers within Canada fosters intergovernmental collaboration. For example, the Supreme Court summarized Canadian...