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Learning Task One: Group Law Essay Focusing on the Mask Policy Case

Diana Bohutska, Samia Fakih, Megan Meshi & Tristan Seguin

EDUC 525 L01 Ethics and Law in Education

Werklund School of Education, University of Calgary

Rhiannon Jones

October 22, 2021- Revised Edition

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Introduction
The coronavirus pandemic continues to have strong impacts on school districts, teachers,

students worldwide. Although mask mandates are in place and complied with at most schools,

one particular teacher in Alberta faced termination, not for his refusal to wear a mask, but for

expressing his personal opinions about the matter on his face mask and social media account.

Bill, who is a junior high teacher within the John Deer school district of Alberta made a tweet

relating the mask mandate within schools to George Orwell’s novel 1984. Shortly after, he wore

a mask to school that had the following written: “This mask does nothing”, making his stance on

the mandate clear to students, and furthermore, influencing a student to question and disobey the

mask mandate. As a result, Bill was reported to the school and given an ultimatum to take down

his tweet and no longer wear such masks to school, or be fired. Bill would face the latter. Bill

claims that his section 2(b) rights of the Canadian Charter of Rights and Freedoms which

guarantees freedom of thought, belief, and freedom of expression (Canadian Charter of Rights

and Freedoms, 1982) are in violation as a result of the school’s decision. However, Section 1 of

the Charter states that “Charter rights can be limited by law so long as those limits can be shown

to be reasonable” (Canadian Charter of Rights and Freedoms, 1982). Were Bill’s rights infringed

upon when he was given a choice to remain employed as long as he stopped making offensive

comments about the mandate? Were his actions offensive? Were these requests reasonable, or

did they infringe upon his freedoms guaranteed by the Canadian Charter of Rights and

Freedoms?

For

Section 2(b) of the Canadian Charter of Rights and Freedoms states that “everyone has

the following fundamental freedoms: freedom of thought, belief, opinion and expression,
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including freedom of the press and other media of communication” (Maddock, n.d.). Under that

context, Bill is properly allowed to have a personal opinion regarding that of masks in (and

outside) the classroom, as he never did (or plan to) violate the mask policy (i.e. not wearing a

mask when required). Regardless of factual implications, Bill’s central opinions were: masks

were a hindrance to students’ mental health, masks were unjustafiable given the risk of the

pandemic at the time, and that enforcing masks is similar to practicing the beliefs in 1984 (i.e a

dystopian fictional Novel by George Orwell, in which society controls its citizens with strict

policies and propaganda). This is also supported by the Ross v. New Brunswick School District

No. 15 case, which stated that “the truth/falseness of expression is irrelevant to whether it

contains meaning [and is protected by the charter]” (CanLII, 1996).

For the sake of context, it is important to consider that Bill never denied the existence of

the COVID-19 pandemic or the validity of vaccinations and sanitizer as well. The entirety of his

expressions were rooted entirely in the issues around masks, something that Bill never argued or

stated in his class with his students. Having the school board force Bill to remove his Tweet and

wear masks that did not challenge mask policies is an inherent breach of Bill's freedom of

expression. This is something that can be proved through the Oakes Test in that it was not

“pressing and substantial” (Centre for Constitutional Studies, 2019) to remove his personal

tweet. From a contextual standpoint, Bill’s opinions regarding masks do fall within the

guidelines of Section 2(b), as explained in the R. v. Keegstra case (CanLII, 1995), where the

Supreme Court explained that “the s. 2(b) protection is extremely broad, so as to protect a

plurality and diversity of opinion, thoughts, and beliefs” (Pyzer, 2019).

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Whilst many disagree with Bill’s opinions regarding the mask policy, the fact that his

beliefs challenge the mandates and policies instilled by the Alberta Government and the

respective school board, is a often considered benefit of Section 2(b), where its cited that it “is

essential to ensure that our society promotes the freedom to dissent against commonly held views

or hold uncommon moral/ethical beliefs” (Pyzer, 2019). Despite how appalling the school board

and Aidan’s parents found Bill’s comments, Section 2(b) does cover opinions no matter how

"repugnant, shocking, or hateful its content” (Pyzer, 2019). The main exception to Section 2(b)

circulates around the point made by the Supreme Court of Canada regarding the notions of

violence, i.e. “where meaning is communicated through physical violence” (Pyzer, 2019). If

threats of violence are spoken through the expression of one’s such opinions or beliefs then

Section 2(b) no longer backs the individual's rights; which is emphasized in the Ross v New

Brunswick School District 15 Case (CanLII, 1996). This is not the case for Bill, as throughout

his Twitter post or in the classroom he never once incited violence in regards to his beliefs

surrounding the mask policy. Whilst Bill’s post did incite malicious compliance, i.e “the

behaviour of intentionally inflicting harm by strictly following the orders of a superior while

knowing or intending that compliance with the orders will have an unintended or negative result”

(Sensagent, n.d.). The fact that Bill never took violent action, or intended to physically challenge

the mask policy emphasizes that his Twitter post did not incite violence.

Against

Although individuals are entitled to the fundamental rights outlined in the Charter, other

important factors must be taken into consideration (Maddock, n.d.). Board policies, case and

statute law, and professional code of conduct all communicate complex legal duties of a teacher

to the employer, the government, parents and students. Even though teachers are entitled to
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section 2 of the Charter, the freedom of expression in respect to the teaching profession must

recognize the intricacy of the teacher’s relationships with the students, their parents, the

community, as well as the school (Reyes, 1995). In the Code of Professional Conduct, section 9

states that “the teacher fulfills contractual obligations to the employer until released by mutual

consent or according to law” and section 11 states that “the teacher adheres to agreements

negotiated on the teacher’s behalf by the Association” (Code of Professional Conduct, 2018).

This means that the teacher is bound to comply with the conditions of his or her employment.

Although Bill obliged with COVID-19 regulations set by the school board and Alberta

government, Bill failed to comply with the Teaching Profession Act. Which indicates in section

23(1) (a) that any conduct of a member that in the opinion of a hearing committee is detrimental

to the best interests of (i) students, (ii) the public, and (iii) the teaching profession and (b) harms

or tends to harm the standing of teachers generally (Teaching Profession Act). With Bill’s choice

to express his opinion in regards to the mask policy is not justifiable, he undermines the standing

of other teachers within the school who are complying with the mask policy. Also, a series of

surveys done within schools depicted that in-person learning is the most beneficial for students

and their mental health. If John Deer experiences an outbreak due to transmission of COVID-19,

students will be forced to switch to online learning which has shown to be less beneficial for

student learning and have a greater effect on their mental health (Alberta Teachers’ Association,

2020).

Under the Alberta Teaching Quality Standard, a teacher “employs classroom

management strategies that promote positive and engaging learning environments” (Alberta

Education, 2018). Bill did not utilize this opportunity to properly educate his students about why
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he believes masks are not effective, he chose to use masks with slogans “So you think this mask

works?”, “This mask does nothing”, “Only wearing to make you feel better”, and “Pointless

placebo”, without an explanation. As the world is collectively dealing with the COVID-19

pandemic, the use of masks has been proven to reduce the risk of transmission of the virus,

keeping the individual and the people around them safe. According to a study done by

Eikenberry et al. (2020), the findings state that the transmission rate can be reduced by one third,

even if 80% coverage of masks are only 20% effective. Given the reason behind the mask policy

is a virus that can harm or potentially kill individuals, expressing such an opinion to an

impressionable group of young individuals can make Bill liable if any harmful consequences

arise from this situation.

Although individuals are entitled to the Fundamental Freedoms, potential for defamation

can serve as a restraint in certain circumstances. In Elkow v Sana (2015) statements made were

tested for defamatory meaning, statements that “tend to lower a person’s reputation in the

estimation of ordinary, reasonable members of society generally, or to expose the person to

hatred, contempt, or ridicule”, support the claim made by the defendants as such claims made on

Bill’s tweets and choice of protection attire lower the reputation of Bill’s coworkers as well as

the validity of the authority of Aidan’s parents. Defamation can be proven if three conditions are

met: (1) the material in question is defamatory, (2) proving that the material refers to the

defendant (the school board), and (3) the material is published to a public (Klar, 2012). The first

condition is satisfied because Aidan disregarded the authority of the school and chose not to

wear the mask which is direct evidence that Bill’s actions are harmful. The second condition is

satisfied because the tweet points to the school at which Bill was employed that mandated masks
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for teachers and Bill having to purchase these masks to be able to teach his class. Lastly, the last

condition is satisfied because the material was published on Twitter where Bill has over 5,000

followers and the masks were worn in the school with a high student population.

To conclude, taking into account the current pressing and substantial circumstances due

to the pandemic, Bill’s fundamental right for expression is conditional to his employment

contract and the duty of a teaching profession. The claims he made online are highly sensitive in

defamation and thus limit his Section 2(b) rights. The repercussions of choices following Bill’s

expression of opinion can have immediate or non-direct effect on the health of the students and

their families as supported with evidence provided on Alberta website.

Conclusion

As the case demonstrated, Bill was reported to the school and given an ultimatum to take

down his tweet and no longer wear such masks to school, or to be fired. Bill was given a decision

in which he claims to be an infringement of his section 2(b) rights of the Canadian Charter of

Rights and Freedoms, which guarantees freedom of thought, belief, and freedom of expression

(Canadian Charter of Rights and Freedoms, 1982). However, Section 1 of the Charter states that

the “Charter rights can be limited by law so long as those limits can be shown to be reasonable”

(Canadian Charter of Rights and Freedoms, 1982). The Alberta Government and the respective

school board argue that Bill's actions should be encouraging students to comply with the Mask

Policy, instead of undermining both the School District and the Government through publicly

criticizing it. The School Board states that any limitation of Bill’s section 2(b) rights by the

School Board is a limit “prescribed by law.”

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Within the teaching profession, teachers must acknowledge the stance that they carry, as

well as the influence that they have amongst their students. Educators are bound to the Teaching

Profession Act, which demonstrates that a teacher should act in the best interest of the students,

the public, and the teaching profession (Teaching Profession Act, 1990). As Bill is bound to the

Code of Professional Conduct, he must adhere to it in order to remain an educator within the

school board; section 9 states that “the teacher fulfills contractual obligations to the employer

until released by mutual consent or according to law”, and section 11 states that “the teacher

adheres to agreements negotiated on the teacher’s behalf by the Association” (Code of

Professional Conduct, 2018). As Bill went against the respected school board’s wishes of

deleting the tweet and no longer wearing the masks with said phrases, he did not fulfill the

contractual obligations of the Teaching Profession Act with the school board, and in doing so

they were able to fire him.

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References

Alberta Education, Teaching Quality Standard (Ministerial Order No. 001/2018), online:

https://open.alberta.ca/dataset/4596e0e5-bcad-4e93-a1fb-

dad8e2b800d6/resource/75e96af5-8fad-4807-b99a-f12e26d15d9f/download/edc-alberta-

education-teaching-quality-standard-2018-01-17.pdf

Alberta Teachers’ Association, Alberta Teachers Responding to Coronavirus (COVID-19):

Pandemic Research Study Initial Report (2020), online:

https://www.teachers.ab.ca/SiteCollectionDocuments/ATA/News%20and

%20Info/Issues/COVID-19/Alberta%20Teachers%20Responding%20to%20Coronavirus

%20(COVID-19)%20-%20ATA%20Pandemic%20Research%20Study%20(INITIAL

%20REPORT)-ExSum.pdf

Alberta Teachers’ Association, Code of Professional Conduct (2018), online:

https://www.teachers.ab.ca/SiteCollectionDocuments/ATA/Publications/Teachers-as-

Professionals/IM-4E%20Code%20of%20Professional%20Conduct.pdf.

Attis v The Board of School Trustees, District No 15, 1996 CanLII 237 (SCC),

<http://canlii.ca/t/1frbr> at paras 1-8, 20, and 34-113, [1996] 1 SCR 825 (sub nom Ross v

New Brunswick School District No 15).

Centre for Constitutional Studies. (2019). The oakes test. University of Alberta, Faculty of Law.

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Eikenberry, S., et al. (2020). To mask or not to mask: Modeling the potential for face mask use

by the general public to curtail the COVID-19 pandemic. Infectious Disease Modelling,

5, 293–308. https://doi.org/10.1101/2020.04.06.20055624
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Elkow v Sana, 2015 ABQB 803 (CanLII), <http://canlii.ca/t/gmnjt> at paras 1-35, 82-223.

Klar, L. (2012). Defamation in Canada. The Canadian Encyclopedia. Retrieved from

https://www.thecanadianencyclopedia.ca/en/article/defamation.

Maddok, J. (n.d.). Section 2(b): Freedom of Expression. Charter Cases. Retrieved from: Section

2(b): Freedom of Expression | Charter Cases

Pyzer, J. (2019). Charter of Rights and Freedoms: The Fundamental Freedoms. Pyzer Criminal

Lawyers. Retrieved from: Section 2 of The Canadian Charter of Rights and Freedoms: The

Fundamental Freedoms - Pyzer Criminal Lawyers (torontodefencelawyers.com)

Reyes, A. (1995). Freedom of Expression and Public School Teachers. Dalhousie Journal of

Legal Studies 35, CanLIIDocs 2. Retrieved from: https://canlii.ca/t/288q.

R. v. Keegstra, 1995 CanLII 91 (SCC), [1995] 2 SCR 381, <https://canlii.ca/t/1frkd>

Sensagent. (n.d.). Malicious compliance definition. Sensagent Dictionary. Retrieved from:

malicious compliance : definition of malicious compliance and synonyms of malicious

compliance (English) (sensagent.com)