Alberta man who removed mask and coughed on waitress guilty of assault

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Deliberately coughing at someone during the COVID-19 pandemic – even if nothing visible is emitted by the cougher – constitutes a criminal assault, an Alberta court has ruled in what lawyers say may be the world’s first such judicial pronouncement on the novel issue.

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It’s already sparking debate about how far Canada’s criminal law should reach.

Judge Heather Lamoureux’s conclusion that “emitting a force consisting of lung-air molecules” qualifies as the use of force under the Criminal Code led her to convict a bar patron who removed his mask and coughed at a waitress.

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The incident occurred during a confrontation over the customer’s winnings from a video lottery terminal.

Lamoureux focused on whether the gesture fit into the Criminal Code’s definition of assault as an act where someone “applies force” without another person’s consent.

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“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,” wrote the judge. “Accordingly, when Mr. Pruden engaged in an intentional act of coughing, he was emitting a force consisting of lung air molecules into the atmosphere.”

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Others in Canada have pleaded guilty to assault for exhaling at people during COVID. But neither the Crown nor defence could find any case law anywhere in the world where a judge actually ruled at trial on whether such an act qualified as a crime, said defence lawyer David Roper.

It is an unprecedented decision

defence lawyer David Roper

“It is an unprecedented decision,” he said. “It has effectively taken a pandemic for the court to come to this decision.”

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It’s long been the law in Canada that deliberately spitting on someone can be an assault; the question here was whether emitting invisible particles also amounted to using force, he said.

Roper said he and client Kyle Claude Pruden, 35, respect Lamoureux’s decision, but at trial questioned whether it was wise to apply criminal sanction to such invisible acts.

“This is something that occurs every single day,” he said. “Effectively if you’re in an elevator and breathing, those aerosols are going into the air, you’re effectively committing the actus reus (prohibited act) of assault.”

That said, he acknowledged that a key factor in this case and any others to come is whether there was mens rea — criminal intent — along with the act of coughing, and the judge ruled Pruden did have such intent.

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Roper cited in his arguments an article by Lisa Silver, a University of Calgary law professor, who raises cautions about creating new “COVID-19 crime.”

Silver said in an interview Thursday that she does not in any way condone what Pruden did, but suggested that defining a cough as assault opens a legal can of worms.

“You can’t change a criminal offence to fit a COVID situation,” she said. “Once you broaden and widen the definition, where do you draw the line? Could breathing, could a sneeze, could a laugh (be considered 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.”

It might have made more sense to give Pruden a ticket under public-health laws or at least to charge him with common nuisance under the Criminal Code, which wouldn’t stretch the definition of assault, said the professor.

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Pruden was eventually given a conditional discharge, meaning he will not have a criminal record if he complies with the conditions.

The incident arose last November, when Pruden, who owns a welding rig that services the oil and gas industry, was at Calgary’s Black Swan pub, drinking and playing VLTs.

He asked for his winnings, but bartender Cayla Cossette said he would have to return the next day and get the money from the bar’s owner. In the heated discussion that ensued, he admitted to the court that he ripped off his mask and coughed in close proximity to Cossette.

When another bar patron urged him later to leave, putting his hand on Pruden’s shoulder, the defendant swung around and hit the customer, the ruling said. He was also convicted of assault for that action.

Lamoureux said assault can involve even minimal touching of another person without their consent, but the issue is more complex when the alleged assault “cannot be seen with the naked eye.”

She said Pruden’s cough was clearly intentional, and she ruled that force as mentioned in the Criminal Code can include “the movement of gas molecules which are inhaled and exhaled during the course of taking air into the lungs and expelling air from the lungs.”

She also cited scientific evidence that COVID-19 can be transmitted via tiny aerosolized particles not usually visible with the naked eye.