In what may be the first decision of its kind, a judge in Alberta has ruled that the act of deliberately coughing on another individual during the COVID-19 pandemic constitutes a criminal assault.
Justice Heather Lamoureux ruled in the case of R. v. Pruden that “emitting a force consisting of lung-air molecules” met the requirements of “use of force” under the Criminal Code of Canada as “[t]he cough was not a reflexive action, but rather an intentional physical act”.
The incident occurred in November 2020 at the Black Swan Pub in Calgary. Kyle Pruden (“Pruden”), 35 years of age, was consuming alcohol and playing on a video lottery terminal. He proceeded to the bar to cash out his $160 winnings. An employee of the bar, Cayla Cossette (“Cossette”), explained to Pruden that she was unable to pay out his winnings as the owner had not yet replenished the cash float and asked him to return the following day.
Pruden admitted at his trial that he proceeded to take off his mask and say, “What is this? Because of COVID?”. He also testified that he started coughing in close proximity to the employee, Cossette.
Cossette testified at the trial that she was behind the bar at the time of the cough and was less than two metres away from Pruden. When defence counsel suggested that Pruden was coughing in a “joking manner”, Cossette replied, “no one would joke during a pandemic”.
A regular at the pub gave Pruden $60, and Pruden left the pub. After having a beer and some pizza at Boston Pizza, Pruden then returned to the pub to recover the rest of his money. Mistakingly believing that the man who gave him the $60 was an employee, he demanded the rest of his money from him. Upon being told that the man had no more money, Pruden proceeded to hit him and left him with a bruise. Pruden has also been convicted of assault for this incident.
The law in Canada has established that deliberately spitting on someone can qualify as an assault. In this case, the question was whether coughing (emitting invisible particles) could also be considered a use of force under the Criminal Code.
Section 265(1)(a) of the Criminal Code of Canada defines assault as follows:
265(1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
The Court made the following findings of fact in this case:
- Cossette was acting in the course and scope of her employment as a service provider employed by a licenced liquor establishment.
- Pruden was very intoxicated at the time of his interactions with the employee, Cossette.
- This event occurred during a public health crisis requiring the wearing of face masks indoors and Pruden, while engaged in a conversation with Cossette, intentionally removed his face mask.
- Pruden, after removing his face mask, coughed in close proximity to Cossette, and the cough was not a reflexive action but an intentional physical act.
- Pruden’s act of coughing caused his lungs to emit lung air in close proximity to Cossette. According to the expertise of the World Health Organization, COVID-19 is spread through respiratory droplets that can be expelled by a person carrying the virus when coughing.
According to Justice Lamoureux:
“Air pressure is a force at the molecular level in the same manner as physical force visible to the naked eye. This is basic science, uncontroverted, and not requiring any expert opinion. … Accordingly, when Mr. Pruden engaged in an intentional act of coughing, he was emitting a force consisting of lung air molecules into the atmosphere. … This is an act of force within the definition of force in … the Criminal Code of Canada.”
Therefore, Pruden was convicted of the offence of assault by coughing as the Crown prosecutor had proven both the actus reus (physical elements of the crime) and the mens rea (criminal intent) beyond a reasonable doubt.
Other Assault Convictions for Coughing Incidents during the COVID-19 Pandemic did not Examine Intent
Justice Lamoureux noted in her decision that there were three other cases of convictions arising out of coughing incidents during the COVID pandemic. In each of these cases, the accused pleaded guilty, and there were no arguments on the issue of force or intention before the court.
Neither the Crown prosecutor nor defence counsel could provide any similar reported trial decisions on the issue of whether intentional coughing qualified as a crime under the Criminal Code.
Lisa Silver, a University of Calgary law professor, commented on this landmark decision and warned about the creation of new COVID-19 crimes, such as coughing. She suggested that Pruden could have been given a ticket under public-health laws or could have been charged with the lesser offence of common nuisance under the Criminal Code.
According to Lisa Silver:
“You can’t change a criminal offence to fit a COVID situation. Once you broaden and widen the definition, where do you draw the line? Could breathing, could a sneeze, could a laugh [be considered the application of force]? … The fact is that criminal law is a blunt instrument. The potential for imprisonment is there for every criminal offence, no matter how trivial.”
We will continue to report in this blog about any further developments to the criminal law in Canada as the COVID-19 pandemic persists.
If you have been charged with assault or have questions regarding your legal rights, please contact the knowledgeable criminal defence lawyers at Barrison Law online or at 905-404-1947. We provide skilled representation for all types of assault charges, including aggravated assault, assault causing bodily harm, assault with a weapon, and domestic assault. We offer a 24-hour phone service to protect your rights and ensure you have access to justice at all times.