With recent news reports of individuals licking deodorant in stores, or spitting on elevator buttons or coughing in the face of police, many people have asked me about what criminal consequences these individuals can face.
A lot of these incidents have one thing in common: they put the public at risk.
Let’s look at the most extreme examples first. In those circumstances, people have asked me whether criminal negligence causing death could be used to prosecute someone if there is a death that results from someone contracting COVID-19 in these circumstances.
The answer is probably no. It would be incredibly difficult for the prosecution to prove that the COVID19 virus was contracted from someone spitting on elevator buttons or licking hygiene products in a store. With the untracked ways that COVID-19 can spread in the community, there would almost always be reasonable doubt that the virus was contracted as a result of this incident.
A further complication in prosecuting people in such circumstances under criminal negligence causing death would be establishing that there was some sort of a legal duty of care to the other individuals. If, for example, a store employee licked a product they put on the shelf that would be different than a customer simply doing so. If a parent spat on an item before handing it to a child, the duty of care could be made out. But with stranger-to-stranger relationships it is hard to say they meet this definition.
Similarly, because the act is clearly intentional rather than negligent, it is hard to say that this is an example of criminal negligence as opposed to purely deliberate conduct. Which begs the question, could murder or manslaughter apply in these circumstances?
Murder likely would not apply, as there is no intent to kill. Also, in looking at the examples listed above, most of these do not appear to be planned and deliberate courses of conduct but stupid impulses, eliminating the likelihood that first-degree murder could apply.
Manslaughter would be the most likely extreme charge that could flow from this behaviour. This is defined, in part, as an unlawful act that unintentionally causes the death of another person. The big question in a prosecution in these circumstances would be whether the unlawful act actually caused the death. This again relates to the unanswerable question of whether the licking or spitting or coughing actually caused transmission of the virus.
Frankly, I think these evidentiary hurdles would be too difficult to establish, thereby making a homicide-type charge unavailable to the prosecution in these circumstances.
But what about other criminal offences?
There are many criminal offences that could apply to capture the unlawful conduct of licking, spitting, or coughing to spread or pretend to spread COVID-19.
One such offence is common nuisance, contrary to Section 180(1) of the Criminal Code. This offence applies if a person commits an unlawful act, or who fails to discharge a legal duty, and consequently endangers the health and safety of other individuals. On first blush this may apply to capture the conduct listed above.
However, one difficulty arising in a prosecution of cases involving common mischief is the question of whether the actual act of spitting, licking, or coughing is itself unlawful. While there are city bylaws that prevent spitting in many places, those may not apply to private property. Coughing itself is not an unlawful act, as if it were people who have colds or allergies or respiratory conditions would be barred from participating in society. And there are no explicit legal bans on licking things.
So while common nuisance may seem like a good fit because of the requirement that there be a risk to public health, defence counsel in a case could potentially successfully argue that the underlying action is not unlawful and therefore an essential element of the offence is not made out.
Which brings me to mischief.
Mischief is an offence that can capture a broad range of conduct. It applies, in part, in circumstances where a person obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property.
As far as licking or spitting, that clearly interferes with or interrupts the lawful use of property. Even in a condominium setting, this offence can apply because the common property is owned by all members of the condo building. For store products, the lawful use of the property belongs to the store who has it there to sell. If it’s been licked, it can’t be sold. And for police, if a person coughs on a piece of equipment used by the officers, which then must be taken out of service to clean and sanitize, the mischief can be made out.
This seems like the offence that most closely captures the conduct that people are engaged in when they spit, cough, or lick products during this pandemic.
The last offence I want to address is assault. Some police officers have suggested that assault could apply in circumstances where people cough on police officers. This may have a few procedural hurdles.
While spitting on police has been deemed to be assault in some circumstances, coughing is a much greater hurdle to overcome in a prosecution.
Assault requires the application of force, or the threat of application of force, against another person. Spitting is a type of force. And while the level of force required to spit on a police officer is minimal, the seriousness of the conduct is found in both the insult to dignity and the hygiene concerns that arise from these incidents.
But coughing does not necessarily amount to the application of force. Taking the words of the Criminal Code literally, a triable issue may arise as to whether coughing on or in the direction of a person is an application of force. Where there droplets that landed on the other individual? This would be necessary to apply force.
I have researched the question of whether a cough alone can constitute an assault. The case law that has dealt with coughing in the context of assault prosecutions has never been asked to answer this question. The closest the courts in Canada appear to have come has been in cases where people both cough and spit, which is then an assault, or cases where people claim their spitting was the result of an involuntary cough and raise that as a defence.
We know now that people have been charged with assault following coughing incidents on other individuals. But whether these prosecutions will hold up in court may be a question that has to be answered by a lengthy trial and the Crown leading some evidence that a cough will inevitably lead to the application of force.
This may be difficult to do.
