Prosecuting Coronavirus: The Application of R. v. Cuerrier
Prosecuting Coronavirus: The Application of R. v. Cuerrier
On March 10th, 2020, the Department of Justice Canada expressed that a person could be prosecuted for knowingly spreading COVID-19.
In a statement to Global News, Department of Justice Canada said that Criminal Code offences of criminal negligence causing death or criminal negligence causing bodily harm could apply, if the situation involves a person who knows they have COVID-19 intentionally acting to spread the virus to others and one or more of those other people suffers bodily harm or death as a result.
Criminal negligence includes doing anything that shows a wanton or reckless disregard for the lives or safety of other persons.
With the world gripped in the claws of the coronavirus, I think it important for all of us to keep this warning in mind. I alluded to the application of potential prosecution for criminal negligence in another post titled “Covid-19: Hoping for a Little Luck of the Irish”.When I posted about the coronavirus and the Courts on March 12th, 2020, the number of coronavirus cases was 134,183. Today – just a short week later – that number has ballooned to a walloping 227, 931 (at the time of writing this article). The number of fatalities over the last week has doubled. It was reported this morning on CNN that the United States tabbed a 40% increase in infections overnight.
In Canada, I don’t think it’s an overstatement to say that we all operate within society by way of a social contract. A “social contract” is effectively an implied agreement between members of society to cooperate for the benefit of the community, or society as a whole. Baked-into the notion of a social contract is the implicit consent of society members to tacitly surrender some freedoms in exchange for protection though social order. Also baked-in are certain socio-cultural expectations about how we will behave around each other.
With the coronavirus pandemic, our behaviour around each other needs to be significantly modified.
It has hitherto been pretty common to mingle closely with people infected with a common cold or flu. In my lifetime, if one got a cold, one took some Benadryl, pocketed Kleenex and went about one’s daily business. If I interacted with somebody with a cold or a flu, I would simply take some Oregano Oil, dose on Vitamin C and get some rest. I have never been worried about contracting these kinds of everyday diseases. In fact, I have luckily been fairly resistant to them.
Though my mother is by no means a Nietzschean, her motto “what doesn’t kill you makes you stronger” rings in my ears. In my 48 years on this planet I have taken great pride in not getting sick and when sick, fighting through it. Historically, my day doesn’t stop because of the sniffles. Up until now my thinking was that staying home was for Government workers, employees with paid sick leave or people who simply wanted an afternoon to watch the Soaps. Getting the sniffles was not a good reason for playing hooky. I know many (especially those running their own business) once thought the same way. To be fair, small business couldn’t afford to think otherwise; that is, up until now.
We need to change our thinking.
About 10 days ago, fellow Calgary criminal defence lawyer Darren Mahoney, asked me what I thought about the then epidemic, to which my response was rather casual. He retorted “are you an idiot Chow”? As it turns out, he was right.
Getting the sniffles is today a good reason to stay home; it’s a good reason to self-isolate and to think about the health and safety of others. After all, we are not merely risking the spread of the common cold, we are risking the spread of a potentially life threatening disease that takes life in a terrible and violent way.
With this in mind, as of today’s date, even healthy people need to ensconce themselves in virus-free zones and not venture-out unless it’s necessary. As Calgary Mayor Naheed Nenshi stated on Global News this morning (I am paraphrasing), every person – even healthy people – need to act as if they are carrying the virus and to treat every other person as if they are carrying it as well. Indeed, it’s true that many people will not know they are coronavirus carriers until it’s too late. If you pass it along to one person, it’s too late, you have contributed to the spread.
Our social contract has been modified. Where we would in the past tolerate those infected with a cold or flu, today we cannot afford to tolerate them mingling outside of self-isolation.
I was shopping in Safeway yesterday. As I was scanning the frozen fruit section, I noticed an elderly woman hovering quite close to me. Thinking that she wanted to get into the freezer, I quickly grabbed a couple of bags of frozen Cranberries and went to move along; to my surprise, she approached, coming uncomfortably close, put her face near mine, lightly coughed and asked if I liked frozen Cranberries. Startled, I answered “yes” and moved along, quite perturbed.
Let me say this. In the past, I don’t think we have ever social contracted to permit strangers coughing (even lightly) on us; but today, I think it’s safe to say that this kind of behaviour is simply intolerable. We are now well beyond the calm-before-the-spread.
r. v. cuerrier
In R. v. Cuerrier,  2 S.C.R. 371 the Supreme Court of Canada heard an appeal involving an HIV infected male who had unprotected sex with a number of females who were not aware of his medical condition. In this case the Court confronted a number of issues, including whether Cuerrier’s partners had given informed consent to have unprotected sex with an HIV carrier, whether in the absence of a valid consent, Cuerrier assaulted his partners and whether as a result of keeping his HIV status secret, he committed fraud against his partners. The majority of the Supreme Court held:
To prove the offence of aggravated assault, the Crown must establish (1) that the accused's acts "endanger[ed] the life of the complainant" (s. 268(1)) and (2) that he intentionally applied force without the consent of the complainant (s. 265(1)(a)). The first requirement is satisfied in this case by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse. It is unnecessary to establish that the complainants were in fact infected with the virus. With respect to the second requirement, it is no longer necessary, when examining whether consent in assault or sexual assault cases was vitiated by fraud under s. 265(3)(c), to consider whether the fraud is related to "the nature and quality of the act".
Now, I recognize that Cuerrier was a sexual assault case involving the AIDS virus and therefore, on the surface it is quite different from our present COVID crisis. However, it nevertheless has some application.
It is important to remember that for the purpose of our criminal law “assault” is any direct or indirect non-consensual touching of another. Degree of force is not an element of assault; meaning that assault is not limited to a push, slap, punch or a kick. Indeed, it is possible to assault a person without ever actually laying a hand on them.
Though I appreciate that people accidentally cough all the time and that coughing can be caused by many things outside of illness, cases like Cuerrier tell us that coughing on a person can constitute assault. For example, a person can cough because they have something stuck in their throat or perhaps that person just needs to clear his or her throat. This is not likely an assault. However, just as intentionally spitting on a person is an assault, intentionally coughing on another – especially while we are coping with the coronavirus pandemic, could be a prosecutable offence.
My point is that though the Department of Justice Canada warned that a person could be prosecuted for criminal negligence by transmitting COVID-19, if we venture out and intentionally spread the disease or are reckless or willfully blind to spreading it, there are potentially simpler avenues for prosecution other than criminal negligence (assault being one such avenue). The takeaway from Cuerrier is that to prove “assault” it is unnecessary to demonstrate that the alleged victim actually contracted the disease; it is sufficient to prove that the person intentionally directly or indirectly touched the other without their consent.
Now I am not saying the woman in Safeway assaulted me. My sense is that she was just intolerably inconsiderate and negligent. That said, I can envision situations where an assault could be proven; and as this pandemic continues to spread, it becoming less and less acceptable (by social contract or otherwise) to expose others to the risk of harm.
In my opinion, all Canadians are now on notice that we have a collective responsibility to ensure the health and safety of our neighbour. In my opinion, this means that at a minimum, anybody who is experiencing cold or flu like symptoms must self-isolate. For those of us who are out in the community we have a responsibility to other community members to keep a respectful social distance.
This Calgary criminal lawyer foresees that there will be a few criminal prosecutions related to the intentional or reckless spreading of this dangerous disease. As its grip tightens around our communities, there is less-and-less an excuse for negligently contributing to its spread. With all this in mind, I say, be respectful to your neighbour. Give everybody some distance. Whether we cross paths with people in the supermarket or on the bike path, let’s follow the advice of Mayor Nenshi by assuming that even though we might feel fine, we are not. This is especially important in circumstances where the expectation is social distance.
If we sacrifice in the short term, we might more easily get on our feet in the long term.
The long term is a growing concern; for the longer this pandemic persists, the more we will be negatively impacted in ways outside of contracting the illness itself. For example, people with guaranteed salaries today may not have them tomorrow for no other reason than there is simply no economy remaining to guarantee them. If this happens, there could be a lot of Canadians in distress after the virus has washed through.
My friends, stay healthy and think long term.
David Chow is a full service Calgary criminal defence lawyer who offers a free consultation. He defends everyone from impaired driving and drug offences to domestic assault and murder. David is a resident of Cochrane, Alberta, where he offers full criminal law services. His main office is located in Northwest Calgary. Call for a free consultation.