The Canadian Charter of Rights and Freedoms

COVID and property rights/rights of business owners

Are your rights really being violated if a business asks you to wear a mask?

Corey La Berge

Last week, I provided a perspective on COVID, the Charter of Rights and public health orders in regards to masks and distancing. Arguably, prohibitions on gathering as well. I touched on the fact that the Charter of Rights only applies as against the state and has no bearing as between citizens, be they flesh and blood or corporate. Governments can be found to have breached our Charter Rights – your family, friends, neighbours, local merchants, and business corporations cannot. The Charter of Rights is a part of our constitution which only limits the state and has no application as against the rest of us. Private citizens cannot breach our Charter Rights. Businesses cannot breach our Charter Rights. I write this, after hearing of numerous incidents – regional, provincial, and national – of people taking their frustration out (sometimes by way of assault) on business employees and security. I have also witnessed store staff here in Cranbrook being told by customers that their rights are being violated when asked to wear a mask.

Our local shops and services are generally private – not state run. We purchase goods (e.g., groceries, clothing, housewares, building supplies, etc.) and purchase services (e.g., legal, trades/contractors, dental, etc.) from private businesses on a regular basis. These goods and services are generally provided in the private sector – not by government. None of these private business interests are capable of breaching our Charter Rights because these businesses are not government.

The stores and service establishments where we purchase goods and services are on private property. As I alluded to last week, business owners are subject to the Human Rights Code – a provincial statute intended to prohibit discrimination on a of a number of bases. For example, according to the Human Rights Code, a business providing a service is prohibited from discriminating on the basis of “race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identify or expression, or age.” If a business discriminates against us on one of these bases, then they are arguably in breach of our rights.

That said, courts also take property rights quite seriously. To that end, business owners do have their own rights, including those provided by British Columbia’s Trespass Act.

A business owner can allow you, or prohibit you, from bringing your dog on their premises. They may permit you, or prohibit you, from bringing a backpack into their store. A restaurant owner may require you to wear a shirt, shoes or formal wear. We may be prohibited from entering the premises unless we sign a waiver. We can be required to wear a hardhat, or safety shoes, or be prohibited from using the restroom unless we are a customer or employee. We may be required to wear a mask, or not enter the premises until permitted by staff keeping track of the number of people in the place of business.

If local business owners decide to comply with provincial health orders, or otherwise require masking, distancing, limits on the numbers of people inside, completing contact tracing documentation, etc. – this is their prerogative, and not a violation of our “rights.” We have no right to enter and remain on private property in any manner we may wish. If a property owner running a local business prohibits entry without sanitizing, that’s their business. If a business owner wishes to impose restrictions upon customers in the interests of their health and safety or that of their staff, or their customers – that is their right. If they wish to comply with provincial health orders, that is their right. If we don’t like it, we’re free to bring our business elsewhere.

According to the Trespass Act, occupiers of premises, and those authorized by them, may ask us to leave or stop engaging in an activity. Refusal to do so can result in prosecution under the Trespass Act. So, yes, our local merchants and service providers may ask us to wear a mask, to distance, to not enter the premises until authorized, to sanitize, to complete a contact tracing form, to not bring our dog, to wear socks, to not bring our backpack, to not wear a mascot suit advertising for a competitor, to sign a waiver, to wear steel toed shoes, to not take pictures, or whatever they like so long as it is not contrary to the Human Rights Code or other legislation. And again, the Charter does not apply.

There may be legitimate arguments in regards to the reasonableness of some restrictions (e.g., certain business sectors may argue that some government restrictions are unreasonable or overreaching). However, please let’s not take our frustration out on our local business community or their employees, It is unfair and ineffective to take our frustration out on front line business and service staff who are simply trying to make a living and doing what they are required to do. If we take exception to the actions of government, we should write our MLA, MP or other representatives of governments who have the power and responsibility to enact laws, regulations and orders. Feel free to walk around with a placard. Or write a letter to the editor of your local paper. Let’s not take it out on those of us working on the front lines of local businesses who are not responsible for the decisions of governments.

The overwhelming majority of people I see have been patient, kind and supportive. But this is grinding all of us down. It hasn’t been an easy year for any of us. Please, let’s celebrate a challenging upcoming holiday season by continuing to be supportive and kind to our friends and neighbours working hard in our communities who are as tired as we are, and wish all of this to end as much as we do.

Corey La Berge is a B.C. Barrister, Solicitor & Notary Public