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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

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Opinion

CARPAY: Kenney’s “not a lockdown” is very much one. And it’s more dangerous than COVID.

John Carpay writes that despite the government’s claim, Alberta is very much in a lockdown that is violating freedoms without just cause.

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It seems that Jason Kenney is taking his government’s communications strategy straight out of George Orwell ’s classic 1984. The government in 1984 uses propaganda as a cornerstone of exploiting people and remaining in power, with slogans like “War is peace; Freedom is slavery; Ignorance is strength.”

Too harsh?

After declaring a new public health emergency in Alberta this week, Kenney said: “Let me be clear, we are not moving into a lockdown.”

He then proceeded to make all indoor social gatherings illegal; impose fines of $1,000 or more on people gathering “socially” outside of their homes (including weddings and funerals) in numbers larger than 10; limit religious gatherings to one-third capacity while requiring masks and prohibiting singing; shut down all banquet halls, conference centres, trade shows, auditoria, community centres, children’s play centres and indoor playgrounds, and all team and individual sports; place onerous and profit-killing restrictions on restaurants, pubs, bars, and lounges; harm retail establishments by reducing them to a fraction of the capacity needed for profitability; limit museums, galleries, libraries, movie theatres, indoor entertainment centres and indoor fitness centres to 20 per cent capacity; severely damage “personal services” businesses providing haircare, esthetics, wellness services, professional services, taxi and rideshare, hotels/motels, and private lessons; and keep grade 7-12 children away from school for six weeks (November 30 through to January 11).

This, maintains Premier Kenney, is not a “lockdown.”

Our caring and compassionate premier magnanimously acknowledges that these severe restrictions on our Charter freedoms to move, travel, assemble, associate and worship will be “disruptive to businesses and to all Albertans.”

Not a lockdown; just “balanced” measures that are a bit “disruptive.”

Not that our premier would know what it’s like to have to take care of children at home when you are used to them attending school from 9:00 to 3:00. Not that our Premier’s own public sector salary will in any way be impacted by his own measures. Not that he would ever need to survive on only $2,000 per month in government benefits while shouldering the responsibility of supporting a family and paying for rent or a mortgage.

Premier Kenney wants to “thank all Albertans in advance for [our] understanding and what [we] have done personally” to “stop the spike and protect each other.”

Premier Kenney ignores Alberta Health Services (AHS) data which does not justify or support the daily fearmongering perpetrated by him and by Chief Medical Officer Deena Hinshaw.

As of Tuesday, November 24 there were fewer than 500 COVID-19 deaths in Alberta since March, in the context of more than 27,000 Albertans who die each year: more than 2,000 per month and more than 500 each and every week. Of course, the 492 COVID-19 deaths are troubling, but so are the other 26,500 deaths from cancer, drug overdoses, cancelled surgeries, suicides, lack of access to health care, and other causes of death. Many of these 26,500 deaths are caused directly by the government’s lockdown measures, like cancelling 22,000 medically necessary surgeries and delaying thousands of vitally important CT scans and MRIs to diagnose cancer.

Only 348 COVID-19 patients are currently in hospital according to AHS, leaving more than 8,100 hospital beds available for more COVID-19 patients, and for patients suffering from the various conditions that cause 98 per cent of deaths in Alberta. COVID-19 patients are occupying 4 per cent of Alberta’s hospital beds, which is pretty close to the 2 per cent of deaths in Alberta that result from COVID-19. Why and how is this a crisis that justifies the lockdowns we have been suffering under – to various degrees – since March?

Is it Jason Kenney’s goal that our 8,500 hospital beds remain empty? If yes, why bother spending more than $7,500 per person on health care each year? Is the health care system here to serve citizens? Or are citizens supposed to refrain from using it, as though we wish to avoid troubling our masters? Overcrowding, bed shortages and delayed surgeries have been serious problems for many years, long before COVID-19 arrived. Why is it a crisis when COVID-19 patients occupy 4 per cent of available hospital beds? Is this percentage actually higher than when flu patients enter hospital each winter, of which we are told there are “zero” this year?

What applies to hospital beds also applies to ICU capacity. AHS tell us that COVID-19 patients are using 66 ICU spaces, which is 5 per cent of the 1,300 total ICU capacity. And we are to accept the destruction of businesses, livelihoods and mental health because of some danger of the health care system being “overrun”?

With COVID-19 patients occupying 4 per cent of hospital beds and using 5 per cent of ICU capacity, there is obviously no danger of our health care system being overrun. We are now hearing in November the same misinformation that Jason Kenney and Deena Hinshaw told us in March and April.

Media-supported fearmongering about large numbers of “cases” is misleading in the extreme. Aside from the small number of people who actually require hospitalization, 97 per cent of these “cases” concern healthy people experiencing no symptoms, and a small number experiencing symptoms which they can take care of themselves at home. Not my opinion; check the data for yourself.

There is no excuse for Premier Kenney and Deena Hinshaw to ignore AHS data on COVID-19 deaths and hospitalizations. There is no excuse for fearmongering about meaningless and irrelevant numbers of “cases” of perfectly healthy people.

If George Orwell were writing his novel in Alberta today, he could have added a fourth slogan to his government’s list of mantras: “War is peace; Freedom is slavery; Ignorance is strength; There is no lockdown.”

Lawyer John Carpay is a columnist for the Western Standard and President of the Justice Centre for Constitutional Freedoms (jccf.ca).

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Opinion

WAGNER: Kenney needs to follow Moe’s lead in putting someone in charge of provincial autonomy file

Michael Wagner writes that Scott Moe’s appointment of an MLA responsible for the autonomy file should be replicated in Alberta.

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Shortly after an election that saw surprisingly strong support for the new independence-minded Buffalo Party, Saskatchewan Premier Scott Moe assigned his new legislative secretary the task of exploring how his province could “exercise and strengthen” its powers within Canada. This legislative secretary, MLA Lyle Stewart, explained that “there is more work to do in standing up for Saskatchewan’s interests within Canada.” 

Moe has already joined other premiers in launching a legal challenge to Justin Trudeau’s carbon tax, replaced the federally appointment firearms officer with a provincially appointed one, establishing trade offices in Asia, and is discussing provincial control over immigration. The legislative secretary can focus on how to build on these initiatives. Having an official charged with this responsibility sends a message that Saskatchewan is fed up with the status quo and is serious about considering new measures.

Appointing an MLA responsible for exploring provincial autonomy is a good idea and one that should be emulated by Alberta Premier Jason Kenney. Last year he appointed the Fair Deal Panel to gather input from Albertans about their views on how to improve the province’s position within Canada. The panel conducted its work and released its report, which many – including one MLA on the panel – saw as being weak. Appointing an MLA dedicated to working on this file would demonstrate that the premier is serious about addressing the ongoing challenges Alberta faces from the federal government and the prime minister’s hostility to the energy industry.

If he really wanted to up his game, Premier Kenney could borrow ideas from a proposal advanced by retired University of Alberta political scientist Leon Craig. In an August 2019 article for C2C Journal entitled, “Alberta Needs A Minister Of Independence Preparation,” Professor Craig recommended creating an entire government department with the responsibility to develop a plan for an independent Alberta. As he explains, “Since declaring independence would involve major changes in how governmental business is done, it is not a step to be taken without having thoroughly thought through the practical difficulties and prepared accordingly. Thus we need a cabinet minister charged with that responsibility – the Minister of Independence Preparation (MIP).”

Needless to say, that would be a bridge too far for Premier Kenney. However, establishing a ministry, or an agency within an existing ministry, to plan and implement the best recommendations of the Fair Deal Panel (as a starting point) would be a meaningful and effective way to demonstrate that Alberta will no longer passively accept the status quo.

This new ministry could be charged with developing blueprints for establishing an Alberta provincial police force, enacting provincial control of tax collection, and creating an Alberta Pension Plan. 

If Trudeau continues to block opportunities for Alberta to develop and export its petroleum products, the ministry could expand its work into developing proposals for an independence referendum and establishing contacts with foreign governments that may be sympathetic to Alberta’s plight. Public information sessions about the process outlined in the Clarity Act could be initiated to create widespread discussions among Albertans about options for the province’s future. 

Of course, whether Premier Kenney was to appoint a legislative secretary for this purpose – or create a ministry – the obvious person for the job would be Cypress-Medicine Hat MLA Drew Barnes. Barnes has distinguished himself as an outspoken advocate for Alberta, more so than any other sitting MLA.

Unfortunately, it’s unlikely that any such position or ministry will be established in the near future. Were he to do so, Premier Kenney could show he is serious about changing Alberta’s relationship with the rest of Canada, fire up his increasingly disenchanted base, put meaningful pressure on Justin Trudeau, and drive the NDP into apoplectic summersaults. That sounds like a winning combination to me.

Michael Wagner is a columnist for the Western Standard. He has a PhD in political science from the University of Alberta. His books include ‘Alberta: Separatism Then and Now’ and ‘True Right: Genuine Conservative Leaders of Western Canada.’

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Opinion

LETTER: Trump is undermining democracy

A reader says that Trump intentionally lies to destabilize and undermine the people’s trust in their public institutions.

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RE: Biden projected to win the presidency (assuming courts agree)

Trump has a lot of media savvy, and his strategy is to continue to engage and manipulate the media, to make sure the cameras are on him – not Biden.

He does that by constantly baiting the media with all kinds of lies and claims a hungry media readily responds to like he was throwing them small chunks of political ‘raw meat’ because he knows the media will respond by promoting, speculating, and arguing credibilities and probabilities for days, sometimes weeks, depending on how ‘juicy’ it is, and he will continue to scream – ‘I never lost’ – till he is a shadow on the horizon:

He will forever insist he won the election while insisting Biden is stealing it.

He will continue to scream fraud and fake till he dies.

He will continue to feed the media and the public misinformation to destabilize and undermine the people’s trust in their public institutions, including the democratic process.

He is a very sick boy.

Andy Thomsen
Kelowna, BC

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