Scientists agree that masks help stop the spread of COVID-19. So why aren't Canadian governments making them mandatory? Is this just general Canadian politeness? Or is there a real concern that such orders may not stand up to a court challenge?

So far, few Canadian authorities have made masks mandatory in public indoor spaces such as stores, places of worship, or public transit. This list includes the municipality of Côte St.-Luc in Quebec, the Guelph medical health unit in Ontario, and a slowly growing number of public transit authorities in Ottawa, Brampton and now Mississauga.

This leaves Canada trailing behind the more than 80 countries and 10 U.S. states that have already mandated masks.

Instead, Canadian governments have largely chosen to leave this crucial public health measure in the hands of businesses and individuals to do the right thing.

The problem with voluntary masking is that masks don't protect the wearer from others as much as they protect others from the wearer. But if 60 per cent of people wear masks that are at least 60 per cent effective, that's enough to control the epidemic.

This is why mandatory masking is about collective action, not individual freedom. While adults can generally decide what risks to take for themselves, that changes when their actions endanger others, especially in the context of a contagious disease spreading throughout the community. The liberty to go about unmasked is not absolute.

This is the common-sense view taken in Canadian constitutional law. The Canadian Charter of Rights and Freedoms permits limitations on liberty that accord with the principles of fundamental justice. This means that the limit cannot be arbitrary, overly broad or grossly disproportionate.

Similarly, infringements of individual rights can be justified by a pressing and substantial interest if the measure being used is rational, reasonably tailored to the problem and a proportionate burden on individual freedom.

Numerous limits on normal life have already been adopted (and embraced) to try to control the COVID-19 pandemic. Assuming appropriate exceptions for those who are unable to wear a mask for legitimate reasons, wearing a mask in public indoor spaces is a low-cost, minimally intrusive act that can significantly benefit those around you. The imposition on individual liberty, if any, is minimal.

Nor should there be any doubt that Canadian governments have the power to mandate masking.

Each province has emergency powers and public health legislation that could be used to implement mandatory masking within their jurisdiction.

In Ontario, for example, medical officers of health for each regional health unit can order a class of people to take action that is necessary to decrease or eliminate the risk to health from a communicable disease outbreak.

Ontario cabinet could also make a mandatory masking order under its emergency legislation as part of its reopening plans.

Municipally, the City of Toronto has broad authority to pass by-laws in respect of the health, safety and well-being of Torontonians, and has the power to compel people to act.

Whom we should not be waiting on to impose mandatory masking is the federal government, which cannot do so without invoking the Emergencies Act, though, for its part, the federal government has already made masking mandatory on airplanes and trains, areas that fall within its jurisdiction.

Masking should appeal to everyone. It is eminently pro-business: it facilitates the safe reopening of the economy, clarifies the law and mitigates liability for business owners, and relieves businesses from choosing between employee safety and customer preference in adopting and enforcing a masking policy. It also protects the community and those most vulnerable to infection, including essential service workers, many of whom come from low-income and marginalized communities disproportionately impacted by the virus, and the immunocompromised.

In the context of a global health crisis, collective action to minimize the spread of the virus enhances everyone's freedom. Declining to adopt mandatory masking leaves the burden on those who are already at risk. It's also ineffective. At the end of the day, the virus will not care about philosophical differences. When it comes to mandatory masking, neither should we.

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Originally published by The Star, 24 June 2020

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