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CATHCART: Know your rights on mandatory facemasks

“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.”

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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

Opinion

MORGAN: Alberta needs less talk, and more action from Kenney

“Premier Kenney needs to pick a lane and to stick to it with authority.”

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Support for the United Conservative Party under Premier Kenney’s leadership has collapsed. Exclusive polling for the Western Standard has the UCP languishing at an abysmal 26 percent support while the NDP is at 41 percent while the new and still leaderless Wildrose Independence Party has climbed to 9 percent province-wide. This trend is nothing less than catastrophic for the UCP and they will need to make some major changes if they hope to be re-elected in 2023.

With nearly two years in power now, it is tough to point to any concrete changes or policies from the Kenney government. While Jason Kenney talked a great game at campaign time, we have seen little follow-through. Where is the promised democratic reform through citizen’s initiated referenda and recall legislation? Where is the fiscal conservatism and moves to get the budget under control? When will the government act on even one of the Fair Deal panel recommendations?

While Premier Jason Kenney continues to try to be everything to everybody, he is losing support on all fronts. The NDP-left will never learn to love the UCP, yet Kenney remains reticent to take on the government unions which are opposing all efforts at fiscal reform or efficiencies. Kenney has talked tough with unions, but won’t act. It’s time to take a stand and start cutting spending, not just haircuts. We are running out of money and taxpayers are running out of patience. It won’t become any easier for waiting.

On the democratic reform front, Kenney needs to implement the promised referenda and recall legislation. It has been nearly two years and this doesn’t need to be studied any longer. We know what we need and we know what we voted for. Give it to us already.

On the Western alienation front, Kenney has been at his most disappointing. This again has been clearly indicated in the recent polling commissioned by the Western Standard. Support for independence is exploding to new records in Alberta. While the UCP was not elected with a mandate to pursue independence, they were elected as a party expected to stand up to Ottawa. It is time that they did it.

Ottawa has more control over Alberta today than when Jason Kenney came to office. Tough talk is clearly not working.

No more panels. No more “expert” studies. No more kicking the can down the road. Albertans want some leadership and they want somebody to protect Alberta’s interests from an increasingly hostile federal government.

We have made it clear that we want a provincial pension plan. I doubt that I will see it implemented before I am old enough to collect it, and I am only 49 years old.

Why more study on whether or not we want a provincial police force? We know we want it. Now start working on what it will take to create it. What did we get? The province commissioned yet another study.

Where is the Alberta Chief Firearms Officer we were told we would get? How hard is it to appoint somebody? Instead, we got an Alberta Firearms Advisory Committee. More talk.

We are getting a referendum on equalization at least, but Kenney has made clear that there will be no ‘or else’ consequences if Ottawa and the other provinces fail to make reforms.

We are living in tough times. Citizens want to see leadership and that means seeing leaders making tough, definitive decisions. Wishy washy approaches to issues aren’t acceptable.

Premier Kenney needs to pick a lane and to stick to it with authority. If you oppose lockdowns, don’t impose them. If you support lockdowns, do it unapologetically and do it in full. Trying to appease both sides only alienates both sides.

Talk is cheap and we are tired of hearing it. If the current government can’t discover how and where they want to actually act on things, they will be replaced in the next election, and I fear for what that replacement may be.

Cory Morgan is the Podcast Editor and a columnist for the Western Standard

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Opinion

OUELLETTE & SHAW: Freedom of expression is under attack in Canada

“While Canada is a relatively free country, the pandemic has exacerbated our pre-existing shortcomings in terms of freedom of expression.”

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Our freedom of expression is under attack. In recent years, there’s been a significant trend toward censorship in the media, in academia, and among the general population. The controversy at the University of Ottawa over the use of the N-word is one example among others. Why do we need to worry about this trend? For one thing, an attack on our freedom of expression is also an attack on our standard of living.

The virtues of freedom of expression are widely recognized: It improves the quality of our democratic institutions, facilitates the exchange of ideas, and leads to sounder, more transparent public policies.

But aside from these benefits, there is also a strong link between freedom of expression and economic growth. This is confirmed by the economic literature and by many academic papers from different researchers at Stanford UniversityDartmouth College, and the University of California, Berkeley, who all arrive at the same conclusion: The exchange of ideas stimulates innovation, and innovation is one of the main engines of economic growth and rising living standards.

Encouraging the exchange of ideas and the protection of freedom of expression is therefore intuitively beneficial, and this is confirmed by the scientific literature. But concretely, what would the average Canadian stand to gain if our governments put in place public policies encouraging greater freedom of expression?

According to our calculations and our econometric model, individual Canadians would be an average of $2,522 richer each year. Obviously, this amount wouldn’t be deposited directly into one’s bank account, but rather, a gradual increase in our living standards would result from the effects of more freedom of expression.

In the sample of 132 countries used in our study, Canada is among the top 15 per cent in terms of freedom of expression. But while it is true that we live in a relatively free society, taking this good ranking for granted would be a mistake.

Indeed, governments have a lot of room to grow when it comes to improving freedom of expression, especially if we compare ourselves to Norway, the top country in the ranking. There, it is standard practice for politicians to make constant efforts, encouraged by citizens, to better protect freedom of expression.

In contrast, in Canada, and especially in certain provinces like Quebec, the government can arbitrarily decide to subsidize one media outlet rather than another, which can potentially hinder media independence and lead to biased and less reliable information. Not to mention that it is increasingly difficult to obtain information from our governments through requests for access to information, which hampers proper public debate. This situation should alarm us.

In order to improve the country’s performance in terms of freedom of expression, thereby also improving our standard of living, we have three recommendations:

  1. Favour media independence from government by limiting arbitrary subsidies and, in their place, creating a regulatory and fiscal framework favourable to all media;
  2. Encourage Canadian public universities to protect freedom of expression in order to truly allow their researchers, professors, and students to express themselves freely without risk of reprisals;
  3. Increase the information and data available to the population by reducing the need to make requests for access to information, in order to facilitate public debate.

While Canada is a relatively free country, the pandemic has exacerbated our pre-existing shortcomings in terms of freedom of expression. We must not allow the current situation to become the new normal. For the sake of our standard of living and the wealth of our country, we must do more to promote and protect the freedom of expression of all Canadians.

GUEST COLUMN: By Miguel Ouellette, Director of Operations and Economist, and Maria Lily Shaw, Economist, Montreal Economic Institute

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Opinion

FILDEBRANDT: Kenney culls Rehn from the herd, but none of it adds up

“If Rehn was the sacrificial lamb, it raises even bigger question about why his head was on the block, and not the other six.”

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The Great Snowbird Scandal has finally claimed its first real political victim. On Thursday morning, Jason Kenney fired Lesser Slave Lake MLA Pat Rehn from the UCP Caucus. But none of it adds up.

Rehn – for all his political sin of travelling to Mexico during his own government’s lockdown – was just one of seven snowbird MLAs.

Former Municipal Affairs Minister Tracy Allard was forced to resign from cabinet –a demotion to be sure – but she still remains comfortably in the UCP benches. Jeremy Nixon, Jason Stephan, Tanya Fir, and Tany Yao all still enjoy full membership in the UCP Caucus.

Why is Pat Rehn the only one to be exiled to northwest corner of the legislature – otherwise known as ‘Siberia’?

Publicly at least, Kenney’s statement on the unilateral firing did not mention the Snowbird Scandal at all.

“The most important job of an MLA is to represent his or her constituents,” Kenney wrote in his statement. “It has become clear that Lesser Slave Lake MLA Pat Rehn has failed to do so. He has made no meaningful effort to work in his constituency, or properly to represent his hard-working constituents.”

“I have repeatedly asked Mr. Rehn to be more present in his constituency. He has ignored calls from me, UCP Caucus leadership, and his constituents to do so.”

So the Snowbird Scandal had nothing to do with it, on paper at least. He was fired because he was an absentee MLA not working very hard, according to Kenney. It’s a curious reasoning that requires some scratching below the surface.

The Slave Lake Town Council issued a scathing letter on January 5 with a laundry list of sins committed by Rehn, including their claim that he doesn’t live in Slave Lake. In fact, they allege that he mostly lives in Texas, something Rehn denies.

While Texas would be a bit far aboard, I have a spoiler for readers: many, many MLAs and MPs do not reside full-time in their constituencies.

Even Jason Kenney himself does not live in his Calgary-Lougheed constituency. In fact, there is pretty strong evidence that he didn’t quite live in Alberta for much of the time that he was a Calgary MP.

It doesn’t really matter, so long as an MP or MLA works hard for their constituents, and earns their support come election day. At the end of the day, constituency boundaries are largely arbitrary lines on a map, drawn up by political appointees.

But for Pat Rehn alone, it appears to have mattered to Kenney.

Kenney official reason given – that he wasn’t working hard or around the constituency – holds no water.

Most backbench MLAs – especially those on the government side of the house – have remarkably little of importance to do. They read cue cards with pre-scripted puffball questions and pablum speeches written by staffers when the legislature is in session. When the legislation is not in session, their biggest job is to show up and be seen kissing babies at their local legion.

Most complaints about Rehn from his constituency is that he wasn’t kissing enough babies. Is that alone really cause to fire an MLA from the caucus?

For those not born yesterday, something clearly doesn’t add up.

So why was Pat Rehn really fired by Kenney?

Western Standard reporters have obtained some interesting documents that appear to cast a new shadow over Rehn. Our reporters will do their due diligence with these documents before we discuss them publicly, but if they are what they appear to be, then this is the real reason that Kenney sacked Rehn.

We can only hope that Kenney did his due diligence with these documents first.

But even if these documents prove the worst possible scenario, Rehn deserves a chance to explain himself fairly.

If the UCP had kept its promise to pass recall legislation, then his constituents could judge for themselves. But, they could also decide to pass judgement on the other six snowbirds.

Was Rehn just a sacrificial lamb for the other six Snowbird MLAs? A Mainstreet Research poll conducted for the Western Standard found 68 per cent of Albertans want Kenney to fire all seven (known) Snowbirds. Alarmingly, 41 per cent even wanted Kenney himself to resign over the matter, including 21 per cent of those who voted UCP last time.

If Rehn was the sacrificial lamb for this scandal, it raises even bigger questions about why his head was on the block, and not the other six.

Perhaps Rehn was a rogue and this was a convenient opportunity to cull him from the herd.

One way or another, we don’t know the whole story. I’d be surprised if we know half of it yet.

Derek Fildebrandt is the Publisher of the Western Standard

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