Anyone who has left their house in recent months knows that the rules on mandatory face masks are hardly uniform. In some places there are no masking requirements at all. Some stores insist on masks, some do not.
Only in situations where the requirement to wear a mask is forced on an individual by a government body, or by a government order or law, does the Canadian Charter of Rights and Freedoms apply. That is, if a business is not required by government to enforce the wearing of facemasks – but does require them of their own accord – the Charter does not apply.
A store doesn’t have to follow the Charter, they aren’t the government. However, they are required by law to comply with the applicable provincial human rights code. Businesses and private companies are legally allowed to require that employees, customers, clients, or visitors to their premises wear face masks. Stores and companies have a general right to refuse service to anyone, provided that they still comply with human rights legislation. Businesses cannot discriminate based on grounds like race, religion, creed, physical disability, mental disability, etc.
If someone is unable to wear a mask because of a mental disability, such as claustrophobia, a business would be engaging in illegal discrimination if it denied services to such a person for not wearing a mask, and did not provide some form of reasonable accommodation.
A requirement to wear a mask as a condition of employment, or as a condition to receive a service, may be discriminatory toward people with exemptions. If a business denies such a person service or employment because they refuse to wear a mask, that denial may form a legally valid basis for a human rights complaint.
Some people refuse to wear a mask for religious reasons. Other people cannot or should not wear masks because of various medical and health conditions. Many of the municipal bylaws are worded broadly enough to exempt those with “health concerns” or ” health conditions”, including mental conditions like claustrophobia. Laws must not disproportionately punish the vulnerable who are unable to wear masks.
There are jurisdictional questions regarding mask bylaws, as well. Cities have no inherent jurisdiction to enact laws because they are entirely creatures of statute: their power is delegated from provinces through legislation. If a province has chosen not to enact mandatory masking requirements, then what empowers a municipality to do so? The answer may well be “nothing”.
Despite the poor drafting of mask bylaws and jurisdictional and constitutional issues, a legal challenge to them is not guaranteed to be successful. Hard data now demonstrates that the virus has a survivability rate of 99.98 per cent, but the mask requirements remain.
If a store or service accommodates non-mask wearers with curbside pickup, online shopping, or some other alternative, a provincial human rights commission would likely rule that sufficient accommodation has been provided.
An individual is typically not required to disclose his medical condition to any store, service, restaurant or facility, provide proof of exemption, or discuss religious beliefs. Individuals are not required to prove that they have a mask exemption.
If asked to wear a mask, you can reply, “I can’t wear a mask.” A store or company can ask if you have a doctor’s note due to ignorance of the law, however, you are under no legal obligation to provide a note, discuss your medical condition, or get into detail about why you cannot or will not wear a mask. The exception to this is if you file a Human Rights Complaint. You are likely going to be required to provide proof as part of the complaint process.
The mask exemption cards that are circulating on the internet are merely symbolic. While some stores may accept them because they look like an “official” piece of paper, they have no legal weight.
Legally, the question of mask bylaws remains circumstance-dependent and uncertain. Scientists and doctors disagree on the benefits of masks to prevent the spread of COVID-19. Ultimately, the constitutionality of requirements to compel non-medical masks can only be determined by a court after it considers all factors, including the fundamental rights of liberty, security of person, freedom to make ones’ own medical decisions, and the right to control ones’ own body and bodily integrity.
Some insist that masks are like seatbelts, and since the government requires seat belt use as a precaution, it also ought to require mask use. The comparison between face-masks and seatbelts is a poor one, however. Seatbelts are extensively standardized, factory- and crash-tested and customized for each age group, weight, model of car, etc. Non-medical masks and fabric masks are not tested, standardized or even customized, and there are zero studies on the safety of masks for children, or long-term wearing of masks for eight hours or more a day, seven days a week. Further, seatbelts do not interfere with an individual’s breathing, or cover one’s face, which is a fundamental and personal part of existence, and also involves the most visible part of human identity.
No one can physically force you to cover your face in a free country, however you may have to shop in stores that welcome all customers regardless of disability or condition. Stores may choose to enforce the mask bylaw on their premises, but customers will likewise choose not to spend their hard-earned money in that store. In this economy, can stores afford to turn away customers?
Importantly, medical offices, hospitals, and nursing homes are the most difficult places to exercise a mask exemption. These are places full of sick people, where the risk of catching any kind of cold, flu or virus is high and can result in death. However, Alberta Health Services produced a COVID information instruction sheet which clearly stated: “No patient shall be denied service in AHS because they cannot or will not wear a mask.” This has since been removed from the original website.
In short, the local municipal governments are on shaky legal ground in imposing mask by-laws. Businesses in mandatory-mask municipalities are only enforcing what they are told to do, and businesses that voluntarily impose mask requirements have a right to do so as private, non-government entities, with several “human rights” caveats.
Know your rights.
Marnie Cathcart was a reporter and journalist for more than 15 years and is Director of Communications at the Justice Centre for Constitutional Freedoms
SLOBODIAN: Not so quick with allegations of hate crimes
It wasn’t a fair fight, but a police investigation determined it was also not a hate crime.
On the surface, a gang of white boys piling on one black boy sure looked like it could be a hate crime.
As it turns out, there was more to the story regarding the April 16 attack in an Edmonton schoolyard.
It wasn’t a fair fight, but a police investigation determined it was also not a hate crime.
A video of the incident, during which the 14-year-old was swarmed and beaten is painful to watch. It made local news and the “racist” incident was featured on the CBC The National.
That seven boys, all aged 14 but for one 12-year-old, attacked one boy is profoundly disturbing. Whoever stood back to video this is just as guilty as his bully buddies who kicked, punched and put the victim in a chokehold.
Predictably, some swiftly concluded this attack was purely driven by racial hatred. The facts be damned.
They didn’t talk to the boys involved.
But police did.
The hate crimes unit concluded this incident didn’t meet the Criminal Code criteria for a hate crime.
“There is still not sufficient evidence that this event was motivated by hate bias or prejudice toward the complainant’s race,” said Edmonton Police Service chief Dale McFee. “As such, it does not currently meet the Criminal Code threshold for a hate-motivated crime.”
During the melee one of the boys yelled out the nasty N-word. McFee rightfully acknowledged this as “highly inappropriate” but not sufficient to meet hate crime standards.
Police discovered the boys had a troubled history but didn’t elaborate.
“Our investigation currently shows this began as a consensual schoolyard fight and was part of an ongoing dispute between a group of male youths, that reportedly started last year,” said McFee.
Admittedly, McFee’s choice of the word consensual is cringeworthy considering that the victim was grossly outnumbered. McFee opened himself up to criticism and is obliged to explain why police arrived at this conclusion.
Police everywhere are working under a microscope, constantly being accused of discriminating against minorities. With budgets being slashed and calls to defund them, they can’t afford to be careless or callous.
After hearing the results of the investigation, one anti-racism activist with A Fight For Equality insisted it was a hate crime and said charges should be laid against the boys. Essentially, this is a demand for police to ignore the Criminal Code.
Canada cannot ever go down that slippery slope.
Other activists accused police of not getting the zero-tolerance for hate crimes message across.
What are they doing as activists to bring people with all skin colours together and repair relations in communities? How are they helping to teach their children tolerance and that beating up anyone is unacceptable?
Knee-jerk reactions fuel division, create unwarranted fear and anger, and are grossly unfair to victims and perpetrators. To wrongly insist this was hate crime doesn’t help these boys who should be the priority. It ignores the root of why this happened and interferes with determining appropriate punishment. A problem, not honestly addressed, doesn’t get fixed.
The reaction to this incident is symptomatic of a growing Canada-wide problem.
McFee dared to say race wasn’t a factor. This is something Canadians are increasingly afraid to say out loud, even when true.
These days, people who denounce or even question accusations of race-based hate are – sometimes viciously – targeted as racist. That’s a bad thing to be. False accusations can destroy reputations.
Race baiters, seeking to support agendas or personal biases, skillfully use this fear tactic to silence anyone who challenges potentially unfounded claims.
We must cautiously discern between those who earnestly want unity and seek to protect victims of hate and those seeking to serve their own interests.
Yes, there are racists in Canada.
No, Canada’s not a systematically racist country.
When Canadians learn someone has been the victim of a hate crime it tears at their hearts. They generously support activist groups who fundraise off of every incident. Ironic isn’t it?
Moving forward, we must tread carefully on this issue of alleged systematic racism some insist permeates Canada.
Meanwhile, the definition of hate-crime victims sometimes gets confusing.
If seven black boys had attacked one white boy would anyone call it a hate crime? Or would it have been recognized for what it was?
In today’s climate that’s an uncomfortable, but fair, question.
Linda Slobodian is the Manitoba Political Columnist for the Western Standard.
HARDING: Maverick is poised to make gains as Conservatives turn their back on the West
“Until recently, the party said it will run candidates solely in ridings where a “split” of the vote wouldn’t elect a Liberal or New Democrat. Since O’Toole’s carbon tax flip-flop, interim party leader Jay Hill has hinted he may drop this policy and run in tighter races, seeing little difference between the Tories and Liberals on western issues.”
In the coming federal election, whenever it may be, the Conservative Party is positioning itself to lose a significant portion of its western and rural base to the upstart Maverick Party. It’s not hard to see why.
The policies and person of Prime Minister Justin Trudeau fanned the flames of western discontent, and even independence in some quarters. Outdoing all his predecessors since Brian Mulroney, federal Conservative Leader Erin O’Toole has taken the west for granted. In a bid to win more votes in Toronto and Quebec, he has embraced a huge carbon tax with enthusiasm. It could just prove to be the most hated policy on the prairies.
Erin O’Toole’s carbon tax Petro Points plan turned some party faithful into real doubters, or downright hostile ones. Even the phrase “carbon Petro Points plan,” plainly demonstrates the mixture of a bad idea made worse by a gimmicky joke. Even Trudeau’s tax-and-give-it-back-to-you premise – however punishing – is still better than the Tory proposal. O’Toole wants to tax you, but deny he’s taxing you and leave you no recourse to recover your seized money except to make “green” government-approved expenditures. The anti-oil movement meets the nanny state, with a vengeance.
And O’Toole will actually campaign on the idea. The only previous time a major federal opposition leader openly campaigned on a carbon tax was the Stephane Dion Liberals of 2008. They had the most dismal showing in Liberal history to that date, thanks in part to Conservative attack ads that said, “Stephane Dion is not a leader,” and Harper’s comments that his carbon tax was “a tax on everything” that will “screw everybody.” The same could be said of Erin O’Toole and his carbon tax. Obviously, he must have some savvy, having won the Conservative leadership, but his about-face on the carbon tax has turned his reception from “meh” to “blech.”
A recent encounter brought home the seriousness of O’ Toole’s miscalculation for me. At the Chris Sky rally in Regina, I met a man from the Assiniboia Sask. area who told me, “A lot of people are saying they’re not voting Conservative anymore. I’ve never seen anything like it.”
If you don’t know Assiniboia, it’s got about 2,400 people and the closest place with more people, Moose Jaw, is an hour’s drive away. It’s farming and ranching all the way, though the coal-fired power plant in nearby Coronach is a big employer.
In rural Saskatchewan, the two things heard most often in the 2019 election were: “The election is over as soon as it hits the Manitoba border” and “If Trudeau gets in again, I’m all for Western independence.”
The Maverick Party is best positioned to capitalize on that sentiment. Until recently, the party said it will run candidates solely in ridings where a “split” of the vote wouldn’t elect a Liberal or New Democrat. Since O’Toole’s carbon tax flip-flop, interim party leader Jay Hill has hinted he may drop this policy and run in tighter races, seeing little difference between the Tories and Liberals on western issues.
PPC leader Maxime Bernier gets it on many of the big western issues, but the loss of his own Quebec seat in the last election left a vacuum in the west for discontented conservatives. With no major party capable of electing MPs to champion western issues, Maverick is poised to fill that vacuum.
The late Joseph Garcea, a University of Saskatchewan political science professor who died in November, shared an important insight on the last provincial election. He said the Saskatchewan NDP had many little policy ideas, but no big idea to rally support. Similarly, the PPC has many little ideas. It’s hard to convince people to vote for change with little ideas. The Maverick Party has a big – and some would say radical idea: an independent west – whether within confederation or apart from it.
People make decisions emotionally, then justify them rationally. The Maverick Party will harness both the anger and grievance in western alienation and the hope found in western independence. The Maverick platform adds substance to the sentiment.
As a fresh party with rookie campaign teams, I’d be surprised if Maverick won any seats. However, they stand a good shot of landing plenty of second place finishes. That might be enough to make O’ Toole remember the West. If the Mavericks can do that, it will be accomplishment enough.
Lee Harding is the Saskatchewan Political Columnist for the Western Standard
MORGAN: I was a part of Kenney base. No longer
“I know who Kenney’s base was. The base hasn’t changed. Jason Kenney has.”
I was a part of Jason Kenney’s base.
Like most Albertans after 2015, I was mortified that we had managed to give the NDP a majority government due to our incessant political infighting and corruption in conservative ranks. I was eager and searching for a way to free ourselves from a provincial government that was farther to the left than Ottawa’s Liberals. I was ready to embrace pragmatism and compromise on the partisan front to ensure that Rachel Notley was a single-term premier, or as Jason Kenney put it, “one and done.”
Jason Kenney entered the Alberta political scene and offered us a plan. He showed us a path to conservative unity and he offered to lead us there. I was thrilled.
I have always respected and admired Jason Kenney. As a fiscal watchdog with the Canadian Taxpayer’s Federation, Kenney mercilessly held Ralph Klein’s feet to the fire in the 1990s on issues of spending and corporate welfare. As a Reform Party MP, Kenney took the Chretien Liberals to task on spending and corruption. Kenney deserves some of the credit for the balanced budgets that both Klein and Chretien eventually presented. It takes steady, reasonable pressure in order to get government leaders to take on tough tasks and Kenney was masterful at putting that pressure on.
As a cabinet minister in the Stephen Harper government, Jason Kenney was no less impressive. Immigration has always been a difficult file for conservative governments and as the Immigration and Citizenship Minister, Kenney made great inroads into relations with immigrant communities and was respected across the country. Kenney was no slouch in other ministerial portfolios as well and it has been long established that his parliamentary work ethic is second to none.
Because of that impressive political resume, I was confident that Kenney was the man who would bring Alberta back into being a province known for good, no-nonsense conservative governance.
I supported Kenney’s efforts to unite the Wildrose and Progressive Conservative Parties. I encouraged people to buy memberships in both parties and to vote to merge. I supported Kenney in his multiple leadership races and I supported the UCP in the 2019 Alberta election.
I know who Kenney’s base was. The base hasn’t changed. Jason Kenney has.
The Western Standard reported in an exclusive story, Premier Kenney said, in reference to Albertans who attended a rodeo south of Bowden last week, “If they are our base, I want a new base.”
I didn’t expect Premier Kenney to endorse or support the rodeo. Indeed, it was intentionally modelled to be in defiance of provincial regulations. Kenney clearly realized that the attendees of the rodeo did represent a large part of his base, and while that doesn’t obligate him to support them, it does obligate him to respect them. Kenney instead chose to insult them in public, and show contempt for them in private.
We were your base Premier Kenney, but we aren’t any longer. As for your new base, I am not sure where you expect them to come from. Rest assured, you will not be winning any love from NDP supporters no matter how much you spend or suppress individual rights.
Jason Kenney has turned into a terrible disappointment as Alberta’s premier and it is well reflected in his current support numbers. Kenney’s support among his base was slipping well before the pandemic struck. In this year of crisis however, Kenney’s support has truly evaporated. Kenney has tried to be everything to everybody, and ended up being nothing to anybody. It is a fate that befell Jim Prentice before him.
The conservative base hasn’t left Alberta. They have simply left Jason Kenney and it appears that he is just fine with that.
The base will not go back to Jason Kenney after having been abandoned and taken for granted by him though and he can’t win the next election without them.
The base will find a new home. It may be through replacing Jason Kenney within the UCP, or through a new partisan vehicle. That base may dominate in the next provincial election or we may end up with another NDP government. Time will tell.
Cory Morgan is the Alberta Political Columnist for the Western Standard and the Host of the Cory Morgan Show
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