How the Supreme Court of Canada would Rule on TransLink’s Mandatory Mask Policy

Abstract

I argue TransLink’s COVID-19 mask mandate would be found to infringe the Canadian Charter of Rights of Freedoms section 2(b)—freedom of expression—but upheld as a reasonable limitation under section 1 as it serves important public health purposes. I conduct a legal analysis with a blended approach, using scientific evidence on mask effectiveness and the experience of TransLink and other jurisdictions alongside reasoning from analogous cases given a dearth of Canadian mask mandate jurisprudence. I pay specific attention to the role of court deference. Evidence supported that an infringement of s. 2(b) would be found; not wearing a mask is potentially a political statement, and expression is compelled by effect by forcing mask-wearing. Despite controversy, I believe the SCC would uphold TransLink’s policy under section 1 of the Charter, at least on a s. 2(b) challenge. Lowering the incidence of COVID has been recognized as a highly-pressing and substantial goal. The Court is likely to defer to government’s evidence and accept a rational connection based on past cases involving public health and medical evidence. The means are within reasonable alternatives given how widespread mask policies are, the exceptions delineated, lack of apt substitutes, and non-overbreadth/vagueness. The limitation is proportional given the Court’s import given to COVID against the low value of the supressed speech.