Images of protesters arguing against vaccine mandates and other COVID-19 related public measures have flooded Canadian news reports and social media over the last year. Canadians, like residents of many countries around the globe, have become increasingly polarized in their views about what steps the various levels of government should take in response to the threat of COVID-19. Some citizens have taken to the streets, parks, and in recent times, to the hospitals and doctors’ offices to protest. Protests include not only those opposed to public health restrictions and vaccine requirements to work and access certain public spaces but also the types of treatment that are appropriate for those who contract COVID-19.
Many elected officials and leaders in healthcare and medicine have spoken out against in-person protests outside hospitals and medical clinics. In recent months, healthcare worker burnout has become increasingly concerning, as shortages have become widespread not only in terms of hospital and intensive care (ICU) bed capacity but in the number of trained workers available to staff them. Some healthcare workers have reported that the protests have been particularly demoralizing to workers who are charged for caring for patients in the most challenging of circumstances. Patients have also expressed feelings of anxiety or outright fear in walking through groups of demonstrators to obtain medical care.
The federal government introduced legislation in November of 2021 to criminalize demonstrations that impede access to hospitals or healthcare facilities and protests that intimidate or threaten healthcare workers. Bill C-3, An Act to Amend the Criminal Code and the Canada Labour Code, received Royal Assent on December 17, 2021, and came into force 30 days later, on January 16, 2022.
Bill C-3 adds a new offence to section 423 of the Criminal Code of Canada, which deals generally with intimidating behaviour. Without any legislative change, section 423 made it an offence to use threats or intimidation to prevent any person from doing anything that they have a lawful right to do. Specific examples provided in section 423 include using or threatening violence, taking someone’s property, tools, or clothes, watching their workplace, or blocking their way. Section 423.1 addressed incidents of intimidating criminal justice participants such as lawyers, judges or witnesses, and members of the press.
The new legislation adds section 423.2:
Intimidation — health services
423.2 (1) Every person commits an offence who engages in any conduct with the intent to provoke a state of fear in
(a) a person in order to impede them from obtaining health services from a health professional;
(b) a health professional in order to impede them in the performance of their duties; or
(c) a person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.
Obstruction or interference with access
(2) Every person commits an offence who, without lawful authority, intentionally obstructs or interferes with another person’s lawful access to a place at which health services are provided by a health professional.
It is important to note from the wording of both section 423.1 and the new offence, section 423.2, that the intention of the person charged is determinative of whether or not a person’s conduct is illegal. Neither the existing offence nor the new offence prevents protestors from making their views known if they intend to do nothing more than inform members of the public witnessing the demonstration of their views:
(4) No person is guilty of an offence under subsection (2) by reason only that they attend at or near, or approach, a place referred to in that subsection for the purpose only of obtaining or communicating information.
The maximum sentence for a conviction under the new section 423.2 of the Criminal Code is 10 years’ imprisonment. This is shorter in duration than the 14-year ceiling for those found guilty of intimidating justice under section 423.1. Neither section includes mandatory minimum penalties (MMPs, the subject of another of our recent blogs).
However, the new legislation does modify the sentencing provisions of the Criminal Code in an important way: it adds new considerations to the list of “aggravating factors” that a judge or jury may take into account in imposing a sentence on a person convicted under section 423.2. The list of aggravating and mitigating factors that a decision-maker must consider in passing sentence under section 718.2 of the Criminal Code is expanded to include:
- evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, and
- evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services.
In its consideration of the constitutionality of Bill C-3, the Department of Justice identified some inconsistencies between the objects and effects of the proposed legislation and the Canadian Charter of Rights and Freedoms, 1982. These included the right to freedom of thought, belief, opinion, and expression (section 2(b)) and freedom to peacefully assemble and protest or demonstrate (section 2(c).
The Department’s Charter Statement referenced the “specific intent requirement, which means there would have to be proof that a person intended to provoke a state of fear in another person” as differentiating between conduct that would be criminalized under the new section 423.2 and peaceful demonstrations in the vicinity of hospitals and other healthcare facilities. The statement references section 1 of the Charter as a potential answer to rights-based arguments against the new legislation:
Section 1 of the Charter allows for reasonable limits on rights and freedoms where these are demonstrably justified. The important purpose of the measures, in seeking to protect persons providing and receiving health care services, may be viewed as striking a proportionate balance with any peripheral effect on the freedoms, and as being justified for this reason.
The statement also considers the impact of the changes to the sentencing provisions of the Criminal Code in the context of section 12 of the Charter, which articulates the right of individuals in Canada to protection against cruel and unusual treatment or punishment. Making it mandatory for judges and juries to consider intimidation of a healthcare worker or a person seeking healthcare as aggravating in sentencing could, the Department notes, lead to longer or harsher sentences being imposed than would have been the case without the new statutory provisions. However, judges maintain discretion in imposing sentences that are proportionate to the circumstances of each individual offence and each convicted person.
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