There is no doubt that we are all frustrated with the pandemic. Over the past 20 months, our various levels of government have made new laws in response to growing concerns for public safety. Some have been repealed seemingly before the ink was dry but others have stayed in place. Laws are only the starting point though, they are just words on paper until they are interpreted by the Court. It is our Judges that put the bite in the dog, the lawmakers just provide the bark. What concerns this criminal defence lawyer is that there are some Judges that are interpreting laws during this pandemic in the name of public safety, but they seem to ignore the fact that their judgments will be in place long after the pandemic is complete. A perfect example of this is a very recent decision by Justice Lamoureux in Alberta. The case involves Mr. Pruden and whether or not his unmasked cough could constitute an assault. The decision says yes, creating a dangerous precedent that could be used to criminalize yelling or singing as well.
The judgement comes down to droplets, deep lung air and the force required to expel the deep lung air out of the body. In order to understand the absurd nature of this decision, there needs to be a brief explanation of what constitutes an assault. Section 265 of the Criminal Code of Canada tells us that an assault can occur when, “a person without consent of another person, applies force intentionally to the other person directly or indirectly.” In this particular case the Judge ruled that the force requirement, one of the necessary elements of the offence, was substantiated by the force needed to expel the deep lung air. While the decision deals with a cough in the era of COVID19, the judgement does not include the element of COVID19 in relation to the force, nor do the essential elements of the offence require that the force be accompanied by a threat of or the potential for harm. The language in the decision is clear, the force element is satisfied by the act of coughing. Seemingly now, in response to an interpreted need for increased public safety measures, the Court has outlawed the act of coughing, with an uncovered mouth in the direction of someone else or in someone else’s space. Pandemic or not, coughing with an uncovered mouth in someone else’s personal space is inconsiderate, but it is clearly not criminal. The decision goes on to quote the World Health Organization wherein it was said that the deep lung air droplets are transmitted when a person “coughs, sneezes, talks or sings“. This case opens the door to the criminalization of singing at or close to other people who do not consent to that occurring. While there are some, myself included, who should avoid singing because frankly, I suck, my unwanted attempts at harmony should not be considered a criminal act. Interpreting that the force element of an assault charge is satisfied by deep breathing opens the door to the potential to criminalize a variety of acts that ought not to be considered criminal. The use of the Criminal Justice System to implement social safeguards during this pandemic has gone too far and, in this particular situation, it is encroaching on individual rights unnecessarily.
You don’t have the right to cough at someone else. That being said, it is not a criminal act. Members of the legal system need to remember that our laws and the precedent set will be in place long after the pandemic is all but a terrible memory. By casting such a broad net, the legal system will most certainly catch people that it has no business catching. Everyone has the right to have a trial. The prosecution bears the onus of proving the charge against the accused beyond a reasonable doubt. That burden does not shift. That doesn’t make it any easier though for someone who has been unjustly caught up in the system. The time, effort, expense, stress on oneself and their loved ones, and stigmas associated with criminal court involvement. All of these things need to be absolutely avoided when they can be. When a Judge’s ruling works to broaden the criminal court’s catchment area, it will no doubt lead to more people being victimized. This is why we defend. If you or anyone you know has been charged with a criminal offence, Cake Criminal Defence is here to help. We are just a phone call away, call today!