The Toronto Mask by-Law: Velvet Law in a Velvet Glove?

Laws serve several purposes. In broad terms, they reflect government policy and prescribe the behaviour required to achieve it. More specifically, they tell us what we cannot do, unless we want to risk penalty, whether criminal, civil or regulatory; they identify (and these are not all laws) the moral attributes of a society; they serve to control, by framing the parameters of permissible activity; they have the goal of changing behaviour. Generally, laws are successful when they are enforced effectively and fairly, although neither may be the case for a particular law. And they tend to work when people think something bad will happen to them if they disobey them. And then we have the City of Toronto’s new mask by-law, coming into force today, which seeks to direct behaviour without actual enforcement (or so the mayor tells us because it does in fact include enforcement provisions). Given the promised lack of enforcement, does the by-law do any more than a strong recommendation would do?

City of Toronto By-law 541-2020, stated simply, is straightforward: members of the public (and staff of affected enterprises) are to wear a mask or other cloth face covering (“a mask”) inside public places (face shields are not considered equivalent). The onus is on management of the location to post a mask-wearing policy set out in the by-law and to ensure that people neither enter nor remain inside unless they are wearing a mask. There is a fine of $1,000 for non-compliance.

The public places covered by the by-law (pun intended) are the following: stores or places offering services, including malls; places of worship; community centres (including indoor recreational facilities); libraries, galleries and similar places; community agencies providing services to the public; event spaces; places where open houses or real estate presentations are made; the common areas of hotels and other short-term rentals; and entertainment facilities.

Certain indoor locations are excluded: schools, post-secondary institutions and child care facilities; transportation; and hospitals and other health facilities, including the “offices of regulated health
professionals”. (The colleges governing regulated health professionals have issued their own guidelines; the College of Optometrists of Ontario, for example, expects patients will wear masks and if one is not available, it may be necessary to reschedule the appointment.) (See a chart explaining when a mask is required and when not for sample establishments.)

Although the Toronto by-law says that “no member of the public” shall enter a premises without wearing a mask, and staff are to wear masks, there are some “compulsory” exceptions, that is, people who are not required to wear masks: children under two years of age (who should not wear a mask); individuals whose medical conditions makes it difficult to wear a mask; individuals who cannot place or remove a mask without help; employees in their own areas where the public is not allowed or are behind a physical barrier; and those who would be accommodated under the Ontario Human Rights Code (HRC). Furthermore, people who are excluded from having to wear a mask do not have to show proof of the reason (see COVID-19 Guidance re the wearing of masks). (Also see here for exemptions.)

The City’s mask by-law should be viewed in conjunction with the TTC mask by-law and the Go train policy.

The TTC by-law, has the same exemptions as the City’s by-law, although rather than simply excluding persons whom the HRC requires to be accommodated, the TTC by-law says, “Additional accommodations in accordance with the Ontario Human Rights Code will also be considered” (emphasis added). (I note that there does not appear to be a specific TTC by-law about wearing masks; it has been developed under By-law No. 1 s. 3.13(a), which reads: “No person, unless otherwise authorized, shall do any act in contravention of instructions, a) on any sign erected on TTC property”.) Like the City’s by-law, it will not be enforced, since “[n]ot all medical or other conditions are visible” and people who are not wearing a mask will still be allowed to board (although contraventions may be subject to a set fine of $195 (for a total of $235). Despite the TTC’s statement that the mask requirement would not be enforced, according to a report in The Star, the mayor indicated repeat offenders might be ticketed: “’We’re not going to be out blitzing and enforcing, … Does that mean no one will ever be given a ticket? Of course it doesn’t.’”

Go asks riders to wear masks, but also says, “we ask for your understanding as not everyone can wear face coverings for health or [unspecified] personal reasons” (see here).

The bottom line on “mandatory” masks: technically mandated inside most premises in Toronto that are accessible to the public and on the TTC, but not on the Go train. However, if you do not wear one, there will be no repercussions under the by-laws (at least not now); people who have a reason not to wear a mask are not required to wear one, but if people simply don’t want to wear one, they will not have to, because there will be no need to provide any evidence of a reason.

This appears to make the by-laws little different from the strong recommendation from the provincial medical officer of health to, for example, maintain physical distance when out for a walk (this being separate from limitations on group size). Generally speaking, this has been effective up to now, when most people, other than essential workers, were staying at home most of the time; we’ll see whether this is still the case as other aspects of society “normalize”.

Are there benefits to a mandatory by-law when everyone is on notice that it won’t be enforced? If the city and TTC by-laws’ persuasive power is insufficient, they can be enforced, of course. However, it is clear that enforcing them will pose difficulties, because non-compliance by people who simply don’t want to wear a mask is so easy. This does not mean that there are not people who have difficulty wearing a mask or, for example, need to lip read and therefore need someone else to remove their mask, but that there will be people who simply do not want to wear one. Those ostensibly “enforcing” the by-laws will not be able to go beyond people’s claims that they cannot wear a mask for one reason or another.

Part of the difficulty is that advice about wearing masks has made a 180 degree turn over the pandemic. While now they are treated as lifesavers for those wearing them and others with whom they come into contact, this was not always the case. In fact, people were discouraged from wearing masks because there were concerns about ensuring enough masks for health care workers, that people would be more careless if they thought they were protected and that people would touch their faces more. (See here, from January or here, from April.) The message then focused on protecting others. Advice in Ontario as of April 10, 2020 suggested there was no advantage to wearing a mask if you didn’t have symptoms of COVID-19 or weren’t caring with someone with COVID-19 (although it might protect others). A Public Health Ontario flyer stated, “Unless you have symptoms of COVID-19, there is no clear evidence that wearing a mask will protect you from the virus, however wearing a mask may help protect others around you if you are sick.”

And now masks are ostensibly mandatory in certain contexts, some of which take a stronger line than others (for example, dentists or optometrists). Based on personal observation, it seems that over the duration of the pandemic, more and people have started wearing masks. Initially, for example, in grocery stores, people wearing masks were the exception, perhaps even perceived as “overdoing it”; now people who don’t wear masks are noticeable. Will more people wear masks, when they might not otherwise, because of the Toronto by-law? One might think that anyone willing to wear a mask is doing so in indoor places by now. On the other hand, a “mandatory” requirement may constitute an additional nudge.

A recent poll by Abacus Data found that most people are in favour of mandatory requirements to wear masks and that a relative few are actually opposed. The percentage of people saying they wear a mask all the time now varies across the country (ranging from 23% in Saskatchewan and Manitoba to 69% in Ontario, although combined with those wearing a mask half the time or less, these figures are 61% and 86%, respectively). But even in provinces where over a third of people never wear a mask, the majority would either support or go along with a mandatory requirement to do so: thus 86% in Saskatchewan and Manitoba would support or accept the requirement (compared to 91% in Ontario). Relevant to the City of Toronto and TTC mask by-laws, 93% of people in the Greater Toronto area would support or go along with mandatory requirements.

Thus the by-laws come at a time when it appears there may be little opposition and that reinforcing the wearing of masks, particularly for those for whom it has not already become a habit in certain contexts, such as in stores or on the subway, may benefit from a mechanism that looks like a requirement rather than advice. Although the City of Toronto and the TTC by-law are relatively easy to circumvent for those who really wish to do so (quite apart from those who genuinely fit the exceptions), there may be advantages to enacting a by-law rather than issuing a very strong recommendation.

Those responsible for indoor locations will now be able to post a policy that says people must wear masks. Some people may treat the word “mandatory” seriously and believe they have no choice. Because it is not likely that people will be refused entry if they don’t wear a mask, the opportunity for people to build an anti-mask movement, as we have seen in the United States, or the temptation to deliberately flout a law because it won’t be enforced should not arise. However, even those who have not been wearing masks may be more likely to do so and those who do not (purely out of personal preference) may feel peer pressure to wear them. Furthermore, it may be that mask-wearers, even somewhat reluctant ones, may accept that it isn’t possible to tell why their fellow shoppers aren’t wearing a mask. And while these by-laws are not being enforced now, their terms contemplate that they may be if the soft approach doesn’t work.

Health experts now tell us that masks are a “very good thing”, a protection against COVID-19, and an effective substitute — to a point — for physical distancing when the latter is not possible. These mask by-laws are a perfect example of laws, the main objects of which are to identify “appropriate” behaviour and to persuade people by making a strong statement — in the form of an actual law — that they should conduct themselves accordingly. This is consistent with the stance that the preferable way to deal with the pandemic is to engage with community and to see ourselves as responsible not only for ourselves, but for others. But the apparent velvet law in the velvet glove can be transformed quickly on its own terms into an iron fist that enforces mask-wearing if the community approach doesn’t work. And then the issue will be the extent to which it is possible to enforce a by-law that recognizes that genuine objectors may be difficult to discern and differentiate from those who simply don’t want to wear a mask or object to being told to do so.

Comments

  1. Perhaps my statutory interpretation skills are rusty, but… By-Law 541-2020 does *not* make mask-wearing mandatory (whether indoors or otherwise) – all it does it require that any Operator of an Establishment “adopt a policy” regarding entry being subject to mask-wearing. In other words, the only people who can contravene the By-Law are “Operators” who fail to adopt (and/or enforce?) the required policy and/or fail to provide or post the required policy in accordance with the By-Law. An individual who refuses to wear a mask, regardless of location, is not subject to the By-Law and cannot be punished for failing to abide it.

    The recitals seem to indicate that this is intentional: “an enforceable temporary by-law requirement will help to educate the public on the importance of a properly worn mask or face covering *and encourage voluntary compliance* [i.e., on the part of members of the public who should be wearing masks]”.

  2. By-law 541-2020 focuses primarily on having “establishments”, as defined in the by-law, responsible for providing a policy for wearing a face covering within their respective establishment where “physical distancing is difficult to maintain”. Does this mean that these defined establishments are not responsible for ensuring physical distancing within their premises? Or are there other by-laws and provincial regulations pertaining to physical distancing within venues such as “a mall or similar structure which contains multiple places of business”, for instance, on escalators and elevators?

  3. Patricia Hughes

    Right, Bob Tarantino, only establishments have an enforceable obligation under the by-law; as I said, the onus is on the operators of establishments to post a policy that reflects the by-law. It appears that only operators face fines for failing to comply with the by-law, including posting the notice and ensuring training, etc. (the Information for Business Owners and Operators under the explanation of the by-law states this is $1,000). But it is also the case that the by-law and the various explanatory documents use obligatory language in referring to obligations of the public. For example, the Information for the Public states, “You must wear a mask or face covering when you are in indoor public spaces.” The chart is headed, “Areas Where Customers Must Wear a Mask or Face Covering.” The by-law states that the notice is to be headed, “All persons entering or remaining in these premises shall wear a mask or face covering … as required under City of Toronto By-Law 541-2020”. But the onus is on the operator of the business to ensure people wear masks; even so, they do not have an obligation to deny entry to people who refuse to wear a mask. I agree that apart from making a claim on the basis of the broad exemptions, anyone who is charged with failing to wear a mask would have a good defence that there is no explicit legal obligation on the individual under the by-law, just a great deal of implicit obligation.

    Verna, as I understand it, the regulation governing the opening of “essential businesses” (O.Reg. 82/20, which expires on July 10th) covers the other ways of ensuring the public is safe by requiring “[t]he person responsible for a place of business that is open shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.” And there are guidelines for various businesses. (Of course, if the emergency declaration lapses, it would be a different matter.) Also the businesses are subject to the Occupational Health and Safety Act as far as employees are concerned and that’s true regardless of whether the emergency declaration continues. I don’t think the mask by-law is intended to displace other safety measures.

  4. It is worth noting that the Toronto mask by-law is now subject to constitutional challenge. It is over broad, not proportional to the current state of the pandemic, not based on science or data and deals inadequately with the issue of exemptions.

    Also, there are reports of it being applied by businesses in ways that are inconsistent and that violate both privacy laws and human rights, as this is being done in a discriminatory manner. This was inevitable given the poor manner in which the by-law was constructed.

    This is, further, not surprising given that these by-laws were enacted based on “polls”, the details of which are largely unknown (and not likely to be an accurate reflection of public opinion), despite that “health experts” most certainly do not agree that masks worn by the general public (especially in the manner that is being done and that is allowed for by the by-law) is in fact effective in controlling viral transmission. And there is much available information, including past statements from public health officials (even the WHO itself) that indicate it poses a number of serious risks to physical and mental health, especially to children (even according to the reports of HSC).

    Having said this, some of the justifications that are being cited. for these by laws, whether they be “polls” or reference to the psychological impact of widespread marking i.e. making people feel better, reminding us that there’s a pandemic or creating a “community standard” seem very problematic if not illegitimate. In fact, they are not even doing this, as they could be said to be creating more of an atmosphere of hysteria, as well as contributing to a culture of division, shaming, bullying and harassment towards anyone who doesn’t wear a mask.

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