Since COVID-19 was declared a global pandemic, there have been ongoing rules and guidelines set in place by the Canadian government regarding wearing masks, social distancing, and staying at home as much as possible.
The province of Ontario issued their last provincial-wide lockdown on April 8, 2021. This shutdown, which ended June 2, not only called for Ontarians to stay at home and only travel if absolutely necessary, but heavily restricted social gatherings.
Ontarians were called to forgo indoor gatherings with anyone from outside their homes, but were allowed to engage with up to five people from outside their place of residence in outdoor settings — as long as they were at least two metres apart from each other.
The rules regarding social gatherings and face coverings in Ontario were strict enough that if you were found breaking any rules, fines were distributed. However, there were exceptions. Alterations to the mask requirements were available for those who required specific accommodations, including dental services, health conditions, and more.
Certain features of the stay-at-home order raised questions amongst the public, some of whom felt there were contradictions within the rules.
Associate Professor at Osgoode Hall Law School, Dr. Faisal Bhabha says: “This government has been both unclear and irrational at various times in its policies and rules pertaining to maintaining public health and safety during the pandemic. Sadly, this has generated a lot of skepticism towards public officials and public health policy.”
“For example,” continues Bhabha, “it is still not clear to many people why outdoor public amenities are closed and why reasonable outdoor gatherings are not permitted.”
Many Ontarians seemed to not only disregard the social gathering rules, but also the rules regarding wearing masks or face coverings in public spaces. These were done in the form of “anti-lockdown” and “anti-mask” protests, which caused some legal action to take place.
CTV News reported that the protest known as “Barrie Freedom Rally” is a weekly event in Barrie, Ontario and one of such protests in late April “saw approximately 400 people in attendance, all calling for an end to the government’s strict lockdown measures.”
“All rights, even rights that are foundational to a free and democratic society, are subject to limits that are reasonable and demonstrably justified.”
Though hundreds attended this protest, the article reported that “up to 15 tickets were handed out, and one woman was taken into custody for obstructing police on the scene,” according to Barrie police.
While protesting without a mask during a pandemic that mandates wearing masks and social distancing may seem illegal, Bhabha explains that there is a constitutional right to protest under Section 2 of the Canadian Charter of Rights and Freedoms.”
“However,” Bhabha warns, “all rights, even rights that are foundational to a free and democratic society, are subject to limits that are reasonable and demonstrably justified, according to Section 1 of the Charter.”
Bhabha adds that, “police have discretion when it comes to enforcing the law” and “this can be a highly contentious issue.”
For example, the organizer of Barrie Freedom Rally, Tyler Nicholson, has been arrested and charged thousands of dollars in legal fees. As well, Robert MacFarlane’s arrest for causing a disturbance and resisting arrest at an event at Centennial Park.
The policing of anti-lockdown protests may raise questions about other forms of assembly, including anti-racism demonstrations.
Bhabha says that racial justice issues and protests against systemic discrimination are “distinct from the issues raised by anti-lockdown protestors.”
“Anti-lockdown protestors are not an identifiable social group and have not collectively experienced historical disadvantage or stereotyping,” states Bhabha. “I’m not convinced that anti-lockdown protestors are raising a true justice issue.”
However, Bhabha notes, “this doesn’t mean that people are not free to disagree with the lockdown, or contest the evidence, or express skepticism about public officials’ decisions. However, their right to object does not in itself make the lockdown measures any less constitutional.”
“Just as customers unwilling to wear masks have the ‘right’ to not wear a mask in our facility, we too also have the right to work in a safe environment, as well as the right to refuse service…”
Some who may not agree with these protests are company owners who do not have the ability to move completely online and would rather be safe when it comes to the spread of COVID-19.
For instance, Connie Carroll is director of client care for TruBliss Wellness & Beauty Spa which requires all customers to wear a mask/face covering. Despite their requirements, Carroll says, “We have had a handful of people refusing to wear masks, as well as some saying that they are ‘mask exempt’ due to health reasons.”
Carroll explains that TruBliss listens with compassion to their concerns and opinions. However, staff ultimately “explain to customers unwilling to wear masks that just as they have the ‘right’ to not wear a mask in our facility, we too also have the right to work in a safe environment, as well as the right to refuse service if they are not willing to comply with our Health and Safety Protocols.”
Carroll adds that because of this, TruBliss has had to refuse service to approximately six individuals.
It is also important to remember that Canadian medical health professionals do have a say in these rules.
Ontario Medical Association (OMA) President Dr. Samantha Hill stated, “we all want the third wave to be the last wave. We’re just not ready to reopen yet. No one wants to start lifting restrictions too soon, only to find the virus spreading again and we have to go back into lockdown.”
OMA also stated that though doctors believe more outdoor recreational facilities should be reopened so that people have options to improve their physical and mental health, they caution that it must be done safely and with clear guidelines.
So while evidence suggests that the lockdowns are effective in stopping the spread of COVID-19, Canadians cannot have any of their fundamental rights, including the right to protest, taken away from them. However, people should never lose sight of why these lockdowns and rules were put in place to begin with.