Can Police Demand That You Remove Your Mask?

I recently wrote a blog post in which I provided some recommendations for how people can survive a roadblock this summer. In that post, I recommended that people wear a mask when approaching a roadblock or interacting with police, due to the way it can protect from COVID-19.

This got me thinking… can police demand that you remove your mask?

The answer is, well, it depends.

On the one hand, police have to be able to investigate crime and that includes determining the identity of the people they are investigating and detaining. And, in Canada, when you are detained you do have a legal obligation to identify yourself. If you fail to state your name, or you provide a false name, you could be charged with obstruction.

That being said, police do not always have the right to demand you produce your identification or reveal who you are. If you are walking down the street, minding your own business, and police are not suspicious that you have committed an offence and are not investigating an offence, they cannot stop you and demand you tell them who you are. This is a practice known as a street check, and it disproportionately happens to people of colour.

It is also illegal, as it violates the Charter by arbitrarily detaining individuals. What is not illegal, on its own, is wearing a mask. The law in Canada only prohibits wearing a mask for the purpose of disguising your face and to commit an offence.

Indeed, the Charter guarantees that you have the right to be free from arbitrary detention. So police stopping you and demanding you remove a mask without a very good reason to do so would likely be in violation of the Charter.

Police do have the right to identify you, in certain circumstances. For example, police can ask that you stop and state your name any time you are operating a motor vehicle. You can also be compelled to produce your license. But here’s where it gets tricky.

A driver’s license is not required to have a photograph on it. While some licenses, and in fact most licenses, do have photographs on them, we all know that the yellow paper interim license does not. If you produce this after being demanded by an officer, you cannot be ticketed for refusing to produce a license.

So, by extension, the police should not be able to compel you to remove your mask to identify yourself. After all, your mask only covers a portion of your face. It does not cover your eyes, eyebrows, the top half of your nose, forehead, or hairline. Eyes, eyebrows, and hairline are all very unique. Presumably a trained professional can identify a person based on those factors, right?

Consider too that police can conduct other inquiries to verify your identity.

In circumstances where people are investigated outside their vehicles, they are not always in possession of identification. Police routinely deal with individuals who do not possess identity documents. If you’re stopped for some sort of an investigation while out for a jog, or while walking the dog, chances are you don’t have your license or health card on your person. And in those circumstances police, without the benefit of photo ID, are still readily able to identify people.

This is because they have access to databases of personal information that only you would likely know. Information like your name, date of birth, address, are then used to identify you and things progress from there. So police have the tools to determine who you are without making you remove a mask.

In fact, case law in Canada suggests that merely producing an identity document bearing your name and claiming that it belongs to you is sufficient to prove your identity. This comes from an old case called R. v. Shryvers that involved a man who produced his license in a speeding ticket case.

So there is no need to have you remove a mask, in most circumstances, just to learn who you are.

But it does become complicated in situations where police are investigating a specific offence that may include seeing your whole face. While parading you out without your mask would obviously run afoul of a whole bunch of laws about how police lineups are to be conducted, there may be some investigative need to have you take your face mask off.

Additionally, police have the right when charging a subject to take a booking photograph and fingerprints. This is where things become very interesting, as the definition of whether someone is charged and whether the right to take photographs and fingerprints arises before or after Crown has approved charges is not yet put to rest.

The Identification of Criminals Act gives police power to take photographs and fingerprints of anyone charged with an indictable offence (including a hybrid offence) for the purposes of identification. The power may or may not also arise at common law, though this is under debate. The photographing process typically includes a photograph of the face and identifying marks, which means the mask should come off.

But there is case law that suggests that the process of taking the photographs and fingerprints cannot create prejudice to an accused. So for those who are masked up to protect themselves from the spread of COVID-19, if there would be some prejudice, which could arguably include health risks, then demanding they remove the mask may be unreasonable.

Of course, this would likely be better advanced as an after-the-fact challenge than asserted at the police station, lest you not be released. That would expose you to greater danger.

Remember too that the fingerprint and photograph process constitutes a search. This means that Section 8 of the Charter is engaged. And a search is only considered to be reasonable if the manner in which the search is conducted is reasonable. A demand that a person remove a mask in the midst of a respiratory viral pandemic could be considered an unreasonable manner of search.

Ultimately, someone will end up litigating this. But the ruling about whether it is a violation of Section 8 will come long after a vaccine is developed and face masks are once again a thing of the past.

For now, if you are asked by police to remove your mask, I suggest the following:

  1. Ask whether you are being detained. If you are not being detained, do not remove the mask.
  2. Ask what authority the police are relying on to demand you remove the mask. If they cannot articulate the specific authority on which they are relying, do not remove the mask.
  3. When in doubt, call a lawyer.

And also, remember, if you’re not dealing with police please do wear a mask, respect social distancing, and wash your hands.

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