Lewis Waring
Jul 24, 20214 min
In this blog, I will be discussing the risks and dangers that overcriminalization presents in the time of COVID-19. I will start with a short assessment why COVID-19 is at risk of overcriminalization. After, I will examine the dangers presented by overcriminalization of COVID-19. I will discuss how overcriminalization disproportionately affects minority populations, especially Indigenous persons in Canada. I will also discuss how overcriminalization can lead to stigma which disincentivizes testing. Finally, I will finish the essay by exploring some of the ways to overcome overcriminalization.
The risk of overcriminalization
Many questions in this pandemic have arisen about how the criminal justice system will handle people who have COVID-19 (or claim to have it) coughing on others. While spitting on others has always been seen as reprehensible by the courts and punished accordingly, coughing is seen as involuntary, so generally it is not punishable. However, we know that coughing near someone or on someone presents a risk of spreading COVID-19 since coughing expels droplets that may contain the virus. Since the beginning of COVID-19, there has been an increase in arrests for aggravated assault of people who cough on complainants. The question is, how should the courts handle these novel cases?
The development of the law in Canada around aggravated assault and communicable diseases happened mostly around HIV in cases such as R v Mabior (“Mabior”), R v. Cuerrier, and R. v. Williams. There were also many lessons learned through the development of the law on HIV. Mabior has been criticized for being overbroad in its understanding of the realistic risks associated with HIV and, in particular, viral loads. In Mabior, the Supreme Court of Canada (“the Court”) had some “serious misunderstandings about the science on HIV status and transmission.” These misunderstandings led to people being convicted for HIV-related aggravated assault even though there was no realistic possibility that the complainant’s life was at risk.
COVID-19 poses a serious risk of being misunderstood in the way HIV was when it was first discovered. Information on COVID-19 changes almost daily and new information is constantly being uncovered. As of right now, there are a ton of unknowns about the virus, which means that the justice system risks over-criminalizing COVID-19 due to a lack of knowledge of the realistic risks involved. The justice system should be careful to consider what medical evidence is available, and also be flexible to acknowledge and apply any new scientific discoveries about COVID-19.
The dangers of over-criminalization for marginalized communities
Over-criminalization of this type of offense could be especially dangerous for Canadians who are part of minority populations already vulnerable to over-policing. People of colour are generally already at a greater risk of contracting and spreading the virus due to the fact that people of colour are more likely to live in more densely populated neighbourhoods, have a lack of access to sick leave, and fall below the poverty line. People of colour in Canada, especially Indigenous persons, are also overrepresented in prisons. A combination of these factors mean that it is likely that minority populations will be the most disadvantaged by the overcriminalization of COVID-19.
The dangers of over-criminalization for test rates
Overcriminalization also tends to lead to a greater stigma for diseases and viruses, and that stigma can disincentivize people to get tests. This was certainly the case with HIV. Knowing that by testing positive for HIV, one could expose people to liability or criminal charges made many people choose not to get tested.
Statistics Canada did a survey to see if Canadians who were experiencing symptoms would get a COVID-19 test and 63.5% said that they would. While this is more than half, that does mean that 36.5% would not get a test or were undecided about whether or not to get a test. Statistics Canada acknowledged that stigma surrounding COVID-19 could be a contributing factor toward Canadians ’aversion to getting tested. One only needs to look to South Korea to see how vital testing can be during this pandemic. Considering how clearly the importance of extensive testing has been demonstrated in other countries, Canada’s trend of suppressed COVID-19 test rates is dangerous.
Overcoming overcriminalization
Overcriminalization is often framed as a legislative issue, but the justice system should also share the blame. Often, in order to ensure that the Criminal Code captures all those morally blameworthy for a crime, the justice system takes a broad approach to ambiguous criminal statutes. When new criminal statutory laws are developed at a rapid rate, this often leads to provisions where the elements of actus reus and mens rea are not explicit, leaving courts with the burden of interpretation. The results of such vague criminal legislation is that courts may in fact render decisions which depart from the legislative intent underlying the statute. For example, courts will sometimes treat a legislative silence on mens rea as a signal of intent that no mens rea requirement is needed.
This is also concerning because, unlike the government, the judiciary and the common law is generally not subject to the Canadian Charter of Rights and Freedoms (“Charter”). It is likely not possible that a Charter challenge would be able to solve the problem of overcriminalization. When judges are tasked with defining criminal behaviour in relation to COVID-19, they must be careful not to adopt an overbroad interpretation.
Overcriminalization of COVID-19 and the need for flexibility
Overcriminalization is a serious problem in our criminal justice system, and there is a wide consensus that something needs to be done. Due to the rapid developing nature of the law around COVID-19 as well as the medical evidence, it is at a high risk of being overcriminalized. Overcriminalization will disproportionately affect minority communities in Canada, and also lead to stigma. This stigma may prevent people from seeking out testing. The courts need to be flexible in their interpretation of the law around COVID-19, but also need to be sure not to be overbroad.