Toronto shouldn’t make masks compulsory — even if it needs to

OPINION: Masking orders could help stop the spread of COVID-19. They could also have unfair and tragic consequences
By John Michael McGrath - Published on Jun 24, 2020
Toronto’s medical officer of health, Eileen de Villa, has the legal power to issue a mask order. (ZouZheng/Xinhua via Zuma Wire/CP)

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Well, at least that’s settled: if Toronto’s medical officer of health, Eileen de Villa, wants to issue a mandatory order in the province’s largest city for people to wear masks, Queen’s Park is emphatically of the opinion that she has the legal power to do so.

Why this is even a question is a bit of a mystery. De Villa told Toronto’s board of health earlier this month that she believed a compulsory mask order was not within her legal powers and would overstep into the powers that are properly the provincial cabinet’s. According to this theory, it should be the premier’s job (through an emergency order) to impose a mandatory mask order, or not.

The premier almost certainly could do that with an emergency order under the province’s Emergency Management and Civil Protection Act, the same legislation that has underpinned the provincial state of emergency and all the emergency orders issued since March 17. But, when asked about it, both the premier and his health minister have said that they’re hoping people will rely on common sense and good judgment.

Perhaps not content to trust the control of an infectious disease to people’s good judgment, some local medical officers of health around the province have gone ahead and made masks mandatory. Starting June 12, anyone entering a public place of business in Wellington-Dufferin-Guelph Public Health’s area has been required to wear a mask or other form of face covering. The medical officer for the Windsor-Essex PHU, which has been rocked by outbreaks among migrant farm workers, says he will issue an order by the end of the week.

Their legal grounds for doing this? Interestingly-to-dorks-like-me, it doesn’t involve an emergency power at all: rather, the Health Protection and Promotion Act gives local medical officers of health very broad powers to control infectious-disease outbreaks. Section 22 of the act allows a local medical officer of health to “require a person to take or to refrain from taking any action that is specified” to control a “communicable disease.” COVID-19 certainly counts as a communicable disease, and local officers have the power to make an order for a whole “class” of people, not just individuals. (Section 22 (5.0.1), for the very curious.)

Local officers have used their Section 22 powers already in this pandemic. De Villa, for example, issued a Section 22 order to make 14-day quarantines mandatory for anyone who tests positive for COVID-19. A Toronto-wide mandatory mask order would fit under the same powers.

In order to remove any doubt, the Ministry of Health contacted Toronto Public Health on Tuesday (after inquiries from TVO.org) and confirmed that de Villa has the legal power to make a mask order if she so chooses.

So, having established that de Villa has the legal power to make this order, let me ask the advocates for compulsory masking, who are legion on social media and quite energetic about their cause, to pump the brakes for a minute.

There are entirely defensible reasons why a medical officer of health in our system might choose not to make a mask order. Chris Mackie, medical officer of health for the Middlesex-London PHU, explained some of his in a Twitter thread yesterday.

There’s also a non-medical reason not to make one, and it has something to do with the other, non-COVID-19, crisis we’re facing. Already in this pandemic, there have been numerous cases around the province of police or bylaw enforcement officers applying public-health rules in absurd, disproportionate ways: A father was attacked in Ottawa. A mother was ticketed in a park in York Region. Two women were told, “I’d be licensed to shoot you” by a Toronto bylaw-enforcement officer. The sheer number of these cases makes it impossible to have any confidence that a masking rule would actually be applied fairly or reasonably in the real world.

And that’s before we even get to the possibility that the police could be called on someone for not wearing a mask in a place of business and that that could end with a person’s death — but that’s a possibility that simply can’t be dismissed.

This is a tragedy, twice: first, because Ontarians can’t trust that the law will be applied fairly and equally — something that’s not supposed to be an extravagant entitlement in a democracy — and, second, because that lack of trust makes it impossible to embrace a public-health measure, such as mandatory masking, even if it would do a lot of good.

So my family and I will continue to wear masks when we’re indoors and in public, and I’ll advocate for people to do so whenever they’re able for the duration of the pandemic. I may revisit this position if the next wave of COVID-19 is particularly brutal — but, until someone can demonstrate that the actual enforcement of mask rules won’t be a nightmare for marginalized people in Toronto, I’m not going to scream at de Villa if she practises some forbearance.

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