Asthmatic passenger acquitted for removing mask on Air Canada flight

Judge finds the passenger’s actions were proportionate to the situation.

CALGARY: A passenger who removed his mask after struggling to breathe during a flight to Calgary in July 2021 has been acquitted of breaching regulations under the Aeronautics Act.

Courtney Sailer was facing a fine of up to $5,000 for failing to comply with instructions given by a crew member after he removed his mask during a flight at the height of the COVID-19 pandemic.  

Sailer, who suffers from asthma and anxiety, removed his mask after a serious medical emergency in the seat behind him triggered his anxiety and caused him to feel that he could not get enough oxygen. He did not reapply his mask when instructed to do so by Air Canada flight attendants and was subsequently arrested by police upon arrival in Calgary.

Judge Lloyd Robertson of the Alberta Court of Justice found that Sailor only removed his mask when the situation became unbearable for him.  He noted in his judgement that Sailor complied with masking requirements before and throughout the flight and found that Sailor removed his mask to recover his oxygen intake and prevent the situation from becoming worse.

While Sailor’s actions created a “possibility of harm” to his fellow passengers, that risk was mitigated by other protections in place, including pre-flight screening procedures, vaccination requirements for travellers, an air filtration system, and the fact that other passengers were still wearing their masks.

Judge Robertson described the situation as a joint failure of communication. Sailor communicated with the flight crew about his breathing problems but could have done so in a more meaningful way. He was focused on his breathing to the exclusion of all else. As for the flight crew, they failed to question Sailor about his medical situation or meaningfully engage with him. As Justice Robertson observed, they “only communicated the command to re-mask”

Sailor was represented by TDF-funded lawyer Sean Mihalcheon.

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About The Democracy Fund: Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports access to justice initiatives for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.