While there is no official legislation, the Canadian government said it is possible that a person may be held criminally liable 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.
In their statement, the Department of Justice specified that a person’s behaviour would have to be differ “substantially” from typical behaviour of a reasonable person acting in those circumstances.
Whether charges should be laid in a particular situation, though, is up to the independent discretion of the relevant police and Crown prosecutors, they said.
“The potential for criminal liability is highly fact-specific,” they added.
Not all diseases are regulated by criminal law, as the stigma presented by that would become an issue. COVID-19 is new, and therefore not specifically regulated — similar to the way most viruses, like the common cold or flu, are not regulated.
For specific diseases, there are criminal laws. In the case of HIV, for example, a person who poses a “realistic possibility of transmission” is legally required under Canadian law to disclose that they tested positive prior to engaging in behaviour that could spread the contagion.
A person who does not disclose can be criminally charged under a wide range of offences, including murder and sexual assault, as criminal liability arises in that context because the courts have found that there is a lack of consent to sexual activity with disclosure.
Graeme Hamilton, a partner at the Borden Ladner Gervais law firm, said it is not “generally the case” that a person would be found criminally liable for spreading a virus, but “just like you can’t hit or punch or administer a noxious substance to somebody, if you’re if you’re going to intentionally infect them with a harmful virus, that could conceivably constitute an offence for largely the same reasons.”
Unlike HIV, Hamilton said there is still a lot that’s unknown about COVID-19, including what the mortality rate is — a factor that he said could credibly result in somebody being found criminally liable if they were going around and knowingly spreading the disease.
He said Canadians are more likely to see liability when somebody has refused to comply with an order or directive that they — either individually, or collectively in a group — have received under under public health legislation, “whether it’s provincially under the the Health Protection and Promotion Act or Provincial Emergency Management and Civil Protection Act, or federally under the Quarantine Act.”
“Those statutes don’t deal specifically with somebody going in knowingly spreading the disease,” Hamilton said, “but they impose restrictions on movement and so forth. And if someone is in violation of those, there’s potentially criminal penalties that apply.”
When those orders are not complied with, Hamilton said there are criminal sanctions that can be imposed on both individuals or employers.
South Korea is a good example of this.
On March. 1, the Seoul government requested a murder investigation into leaders of the Shincheonji Church of Jesus, believed to be at the epicentre of the country’s deadly coronavirus outbreak.
After more than 4,000 cases of COVID-19 were linked to the church, South Korean officials said the church was liable for its alleged refusal to co-operate with efforts to prevent the disease, blaming the church’s “secretive” nature and tightly packed conditions at services for the large number of cases linked to it.
When it comes to the amount of time a person may serve if convicted of these offences, Hamilton said “it’s almost impossible to say,” but even provisions as seemingly small as common nuisance or mischief carry jail time.
Hamilton said, if someone violates an order or directive that they’ve received pursuant to one of these pieces of legislation, that people can be found liable and subject to potentially fines or imprisonment.
— With files from Reuters.
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