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“It is not unlawful to wear a mask,” he said. “It is unlawful to do so with criminal intent.”
Prosecutors are required to weigh all relevant circumstances to determine the intent of the person wearing the mask prior to proceeding with a charge.
“That was true before COVID and remains true now …,” Gerein said. “We’re going to look at particular aspects of the entire event, so where did this happen, when did it happen, what sort of mask was being worn, was there a weapon involved? … What did the person with the mask do? Did the person with the mask say anything? If they did, what did they say? So you take all of that and then whatever else occurred. It’s not a closed set of categories.”
Sometimes the answer is fairly straightforward. If a person walks down the street on Halloween night with a mask on, not doing anything wrong, that suggests one thing, and wouldn’t result in a charge.
“If they walk into a confectionary at three in the morning with a mask and they have a weapon, that sort of thing may well suggest another,” he noted.
Gerein said there could potentially be cases where a disguise with intent charge is laid when someone commits a robbery or other offence while wearing a COVID mask — “if there’s an indication of an intent to disguise” for the purpose of committing the crime.
“That doesn’t stop a person then saying, ‘Well, I wasn’t wearing it for that reason,’ ” Gerein said. “But then we’ll litigate that and we’ll see what the judge decides.”