Criminal liability and novel coronavirus (COVID-19) – what you need to know

October 27, 2020 Published by Pollock & Company
Category: Criminal Law, Canadian Cases, Legal Advice, Pollock News

In the COVID-19 pandemic world, many people are wondering about the ramifications that the coronavirus is having on criminal liability. For example, could a person be held criminally responsible in Canada if they infected another person? What could happen if that person dies or suffers from serious injuries or disabilities due to COVID-19?

Can those who have COVID-19 be held legally liable for making others sick?

There is some precedent in Canada for those with specific diseases to be held criminally and legally liable for making others sick.

HIV, for example, must be disclosed to a potential partner before a sexual encounter if the person has a “realistic possibility of transmission.” If a person who is HIV-positive does not disclose this prior to engaging in behaviour that could spread the disease, they could be prosecuted for doing so.

However, when it comes to criminal liability and COVID-19, due to how new the virus is, no official criminal rules or judgments exist in Canada. Those who test positive are encouraged to self-isolate and quarantine themselves to avoid spreading the virus and to seek medical help if necessary, but there is not a specific law against spreading COVID-19.

So, does that mean that someone who spreads the disease on purpose is immune from legal prosecution? Not quite.

Knowingly and purposefully infecting others

The Department of Justice Canada has stated that, in the case of COVID-19, standard Criminal Code offences of criminal negligence causing death or criminal negligence causing bodily harm could apply—in some cases.

If there is a situation in which a person who knows they have COVID-19 purposely tries to spread the virus to others and one of them gets sick or dies, this person could be criminally prosecuted.

For example, a person who does not know they have COVID-19 and goes to a grocery store and accidentally infects someone during their trip would likely not lead to any kind of legal action.

In contrast, if an individual who is positive for COVID-19 enters a public area without a mask, begins coughing on individuals, touching them, or doing other such actions that indicate “wanton or reckless disregard” for the safety of others, charges could be brought against them.

Violating Health Orders

Beyond prosecution for negligence, violating provincial and federal health orders can result in fines or criminal prosecution. Individuals and businesses that knowingly refuse to comply with health directives in the area could be subject to criminal or civil penalties.

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