The coronavirus pandemic is more than a mere health crisis; it is an economic, social and legal crisis. As of April 28th, 2020 Canada remains under lockdown.Various levels of Government -- municipal, provincial and federal -- have initiated COVID-19 measures to both stop the spread of the disease and to offset the social and economic devastation caused by home isolation (to include quarantine, physical distancing and social distancing).
Federally, Canada's Government has invoked powers under the Quarantine Act and the Emergencies Act. In Alberta, the Provincial Government has invoked powers under the Emergency Management Act. As I previously warned would happen, the Criminal Code of Canada has even been invoked a number of cases to charge people with COVID-19 related crimes. For instance, in Alberta, a 59 year-old man was charged in Wetaskiwin with assault after he claimed to have the coronavirus and coughed on RCMP members,
covid-19 and the criminal code
From a Criminal Code perspective, there are a variety of offences that could be triggered in a COVID-19 scenario. For example, it has always been an offence in Canada to spit on somebody (this is a form of assault). It has also been an offence to threaten a person with assault (such as for example, threatening to spit). As was discussed in a previous post, R. v. Curriere could even allow the Crown to prosecute for assault causing bodily harm or worse for intentionally assaulting another in a manner that could spread coronavirus.
The penalty for common assault is quite vast, ranging from non-criminal record type dispositions (such as Peace Bond, Alternative Measures or discharge) to criminal record sanctions, such as fines, probation and jail. As the severity of the assault increases, there is a greater likelihood that the sentencing response will increase. For instance, assault causing bodily harm often results in a jail sentence.
If a person assaults another by coughing coronavirus in their face, and that person dies as a result of the coronavirus infection, it woud be possible for the Crown to prosecute for unlawful act manslaughter. The penalty for manslaughter is as high as life imprisonment.
If a person was to infuse him or herself into a crowd of people while knowingly having coronavirus and declines to take reasonable steps to protect the public, it might even be possible for the crown to prosecute for criminal negligence -- that is a wanton and reckless disregard for the health and safety of others. If any of those others become infected or worse, perish from the disease, it might be possible for the crown to prosecute for criminal negligence causing bodily harm or death. The penalty for criminal negligence could include time in custody.
beyond the criminal code
As with most law in Canada, violating the law has consequences. In the opinion of this Calgary criminal lawyer, the law is most often a sword, not a shield. With that in mind, the Criminal Code of Canada is not the only instrument for which a person can be prosecuted and penalized for a coronavirus related offence. For instance, under the Quarantine Act, a person could be liable if prosecuted by indictment for fines up 1 million dollars or up to 3 years incarceration.
In Alberta, a person could be prosecuted under the Emergency Management Act and if convicted, be fined up to one-year imprisonment, a $10,000 fine or both.
defending a coronavirus prosecution
Defending a coronavirus related prosecution will likely require an innovative and novel approach by your defence lawyer. Other than some judicial interim release/bail cases, there has yet to be a coronavirus prosecution in Canada fully litigated in Court. Many of the same defences to the usual offences will continue to apply. For instance, can the Crown identify the accused? Can the crown prove that an actual assault or threat occurred? What is unique about a coronavirus case, however, is whether the Crown can prove the accused was a carrier of COVID-19. Testing for the virus in a person under police detention will almost assuredly demand Charter compliance. It is very likely that R. v. Curriere will be instructive. Prosecutions under the Emergency Management Act and Quarantine Act are relatively novel and as such, the defences will be novel.
Every case must be determined on its own merits. If you have been charged with a COVID-19 related offence such as assault, uttering threats (or worse), call for a free consultation. If you have been charged under the Quarantine Act, Emergency Management Act or any other Act of Parliament with a coronavirus related offence, dial 403.452.8018 to discuss your options.
David Chow is a full service criminal defence lawyer in Alberta. He is a local Cochrane criminal lawyer and a Calgary criminal lawyer with his main office located in the Varsity area. David Chow is actively involved in researching and preparing to defend coronavirus related offences.