COVID 19

COVID 19 – Paths to Criminal Liability

Introduction

[1]          As we start to practise social distancing – the obvious question emerges – what is our legal obligation to do so?

[2]          Beyond this question – what if you knowingly have Covid 19 and pass it onto someone else? Can you be prosecuted criminally?

[3]          In Canada, there appears, in theory, to be two paths to liability.

(1)    Assault;

(2)    Criminal Negligence;

Assault

[4]            The Canadian definition of assault can be found in s. 265 of the Criminal Code. Basically, an assault is an intentional application of force, direct or indirectly without the person’s consent. Consent cannot be obtained by fraud.

[5]          Let’s hypothetically say X who has been told he/she has the virus, is asymptomatic, kisses Y. If Y knows that X is COVID positive, and assumes the risk, then there is no fraud and no criminal liability under the law of assault.  The trickier question becomes — what if X doesn’t tell Y? Whether Y gets ill or not becomes irrelevant. Was an assault committed? The HIV cases are instructive in answering this question.

[6]          In order to be found guilty of (aggravated sexual) assault in HIV cases the following is required as per R. v. Mabior 2012 SCC 47 at para 104:

To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status.  Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).  A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.  On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used.  However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play. [emphasis added]

[7]          It is not enough, and this is the important point, to simply have the disease and not disclose to your partner. There must be a “significant risk” of bodily harm couple coupled with a “realistic possibility” of transmission.

[8]          In R. v. JTC 2013 NSPC 105 the medical evidence established that there was a 1/million chance of passing on the virus even with unprotected sex (low viral loads). The accused was found not guilty. Likewise, in R. v. CB 2017 ONCJ 545.

[9]          In R. v. WH 2015 ONSC 6121 condom use and low viral load resulted in a finding of not guilty. See a contrary result in R. v. Goodchild 2017 ONSC 6739 were a detectable viral load and condom use resulted in a guilty finding.

[10]        In R. v. Thompson 2016 NSSC 134, condom use only resulted in a finding of not guilty (aff 2018 NCSA 13).

[11]        In theory, if you know you have COVID 19, have been told to self isolate, and have had contact, which includes indirect contact, with another person and therefore have created a “realistic possibility of transmission” you could be liable under the law of assault for transmitting the virus.

Negligence

[12]        In Canada under ss. 219, 220 and 221 of the Criminal Code you could be liable for transmission of the COVID 19. Those sections hold a person liable for doing anything or omitting to do anything they have a duty to do and shows “wanton disregard or reckless disregard” for the lives and safety of other persons.

Conclusion

[13]        I have been careful to frame the question and answer “in theory” because as the HIV cases show there are many factors that must be accounted for in determining whether someone will actually be found guilty and there is so much about Covid-19 we still don’t know.

[14]        I wish everyone well over this difficult time and especially to my fellow criminal lawyers who without work for the foreseeable future are going to struggle.