COVID-19 and the Importance of True Crime and Regulatory Offences - Matt Reimer

Challenging Restrictions

Public Health Orders (PHOs) are something that we as society have had to grow accustomed to. Restrictions have been a significant part of life. Businesses have had to shut down and connection in communities has become much more difficult. One group of the many affected have been religious institutions who have sometimes had to close their physical doors to prevent the destructive spread of COVID-19. As a Christian myself, I have been in favour of protecting vulnerable individuals and obeying PHOs. However, there is a small number of individuals out there who feel that their religious freedoms have been threatened. As a result, a Charter challenge was brought in Gateway Bible Baptist Church et al. v. Manitoba et al. One of the arguments raised had to do with an apparent conflict between the PHOs and section 176 of the Criminal Code.[1]

The Question of COVID-19 Violations as a True Crime

The first time I read this, I found it ironic that a criminal law was being used by the applicants to justify actions I deem to be criminal. A crime has been regarded to consist of prohibited conduct that has an “evil, injurious, or undesirable effect on the public.”[2] Violating PHOs clearly has an undesirable effect as people can die and harsher restrictions can be placed on individual liberties to preserve remaining lives.

Instead of recognizing the burdened health care system, some of the applicants in Gateway such as Tobias Tissen have ignored PHOs by taking part in activities that could be relocated to an online format. Personally, I find that violating PHOs during the heat of a pandemic is reprehensible.

It appears that I am not alone with this sentiment, as in a January 2021 Maru Blue poll, 64% of Canadian respondents believed that fines up to $10,000 should exist for those who violate lockdown rules.[3] To put that into perspective, the maximum fine in Manitoba for COVID-19 violations stands at $1,296 and $5,000 for individuals and corporations respectively.[4] These fines would go above the $5,000 general limit set for summary conviction offences in Manitoba.[5] Such a widespread opinion begs the question as to whether certain conduct during the worst of a pandemic should be reclassified as “true crime offenses” recognized in the Criminal Code. At first glance, a true crime designation for certain violations may seem appropriate. One reason is that true crimes hold a higher concept of fault. Such an offense also involves the infringement of basic community values, while regulatory offences like PHO violations take less account of moral culpability on the part of an offender.[6] Judging by the earlier poll, following pandemic regulations may be construed as a basic community value, thus placing certain conduct under the true crime label.

Because of this, there may be room to address egregious pandemic-related offences within criminal law. Many regulatory offences including reckless driving run parallel to offences involving higher moral culpability such as dangerous operation of a motor vehicle, with the only difference between them being the degree of fault in the offence.[7] I would argue that there is room to do the same with extremely large maskless gatherings involving vulnerable individuals in a place with high pandemic-related death counts. Such actions could count as the actus reus (wrongful act) while a finding of recklessness could make up the mens rea (mental element). In H (A.D.), recklessness meant that the accused persisted in a course of conduct knowing of the risk which it created.”[8] For a pandemic related offense, this form of mens rea can apply to an accused who foresaw the risk of COVID-19 transmission and unreasonably allowed the event to move forward. Through such a law, the societal value of being prudent during a pandemic can be enforced while deviants can be punished.

All of this is not to say that the applicants did not recognize an important societal value of their own. In his decision, Justice Joyal referenced the case Skoke-Graham v. The Queen, which acknowledged the importance of individual freedom to pursue the socially beneficial activities of gathering as a community. Unnecessary interruption of this was indeed abhorrent and needed to be addressed.[9]

Justice Joyal and the Importance of Regulatory Offences

Unfortunately for the plaintiffs, Justice Joyal exposed disparities in the applicants’ claims. Said claims alleged that the PHOs violated s. 176 of the Criminal Code, which acknowledges a person’s guilt if they do the following:

(a) by threats or force, unlawfully obstructs or prevents or endeavors to obstruct or

prevent an officiant from celebrating a religious or spiritual service or performing any other function in connection with their calling, or

(b) knowing that an officiant is about to perform, is on their way to perform or is returning from the performance of any of the duties or functions mentioned in paragraph

(i) assaults or offers any violence to them, or

(ii) arrests them on a civil process, or under the pretence of executing a civil process.[10]

The way the applicants saw it, the enforcement of PHOs obstructed individuals from freely meeting at religious services. By doing so, the provincial government allegedly violated the freedoms that s. 176 protected.[11]

In analyzing these claims, Justice Joyal began examining the purpose of s. 176. He began by observing section (1)(a) and its forbidden transgression of a person “unlawfully obstruct(ing) or prevent(ing) officiants… by threats or force.” Joyal recognized that such restrictions were not unlawful, as PHOs were valid under the Public Health Act. As for section (1)(b), he found that assault and violence, and arrest on a civil process were never seen. All that occurred under the act was a distribution of tickets for offenders and a requirement that they carry on the service remotely.[12] As for s. 3, the justice found that the prevention of their religious gatherings fell under a valid public health order and was not committed with the sole intention of disturbing a religious gathering.

Justice Joyal’s Decision and Preserving Simultaneity

To conclude his judgment, Justice Joyal decided to entertain what would happen if the argument that PHOs interfered with a criminal law was found valid. He argued that this would set an extremely dangerous precedent for conventional government regulations (such as building and fire codes) that could be classified as disturbing religious gatherings.[13]

In his judgment, Justice Joyal recognized the importance of preserving regulatory offences for the good of the public and not allowing the criminal law to strike them down. It was extremely important that he did so, as regulatory measures are crucial to the broader functioning of society. As opposed to emphasizing individual liberties, regulatory legislation places more emphasis on the public good.[14] This often involves the enforcement of regulatory standards to protect the public from common threats such as food-borne diseases and air pollution.[15] They are offences in which individual moral culpability has less weight, and often result in smaller penalties.[16] This may disappoint people, since this is the category COVID-19 offences have fallen under as PHOs.

Despite this disappointment, keeping most pandemic measures under this banner is essential; specifically, because regulatory offences also have a lower burden of proof and benefit the protection of the public.[17] This stands in contrast to having to bring a true crime case to court and proving both the actus-reus and mens rea beyond a reasonable doubt.[18] Regardless of outcome, a rash of negative consequences would result for both the accused and broader society. If the accused were found guilty, they would gain a criminal record and potentially be incarcerated.[19] In order to obtain a conviction, more taxpayer money would have to be spent to accommodate a larger number of similar cases that formally fell under regulatory offence categories. Due to the higher burden of proof involved, it is more likely that an accused would be found “not guilty.” Again, government resources would be used for these cases. As for the accused, they would not receive punishment; however, they may be subject to legal fees. In contrast, regulatory offences result in fines being levied, the accused being discouraged from committing the offence again, and society being protected from injurious conduct in the long term.[20]

What is important in all of this is that regulatory and criminal jurisdictions must simultaneously operate. Although condemning acts that go against a societal value is important, there are sometimes extenuating circumstances and a greater good that must be preserved. In Gateway, we can observe the importance of not allowing the criminal law to override the public good protected by regulatory offences. In our response to COVID-19 violations we can also recognize the important place of regulatory offences. Just as Justice Joyal did, we must not allow the criminal law to overwhelm regulatory statutes. For if we were to do this, negative consequences would abound for both the offender and broader society.

[1] Gateway Bible Baptist Church et al v Manitoba et al, 2021 MBQB 219, at para 146 [Gateway]. [2] Reference re Validity of Section 5 (a) Dairy Industry Act, [1949] 1 SCR at page 49. [3] “Support for Pandemic Lockdown Rules” (2021) at 2, online (pdf): Maru <https://www.marugroup.net/public-opinion-polls/canada>. [4] Manitoba Government, “State of Emergency and Public Health Orders (23 November 2021), online: Manitoba <www.gov.mb.ca/covid19/prs/orders/index.html>. [5] The Provincial Offences Act and Municipal By-law Enforcement Act, SM 2013, c 47, s 4. [6] Simon N Verdun-Jones, Criminal Law in Canada: Cases, Questions, and the Code, 7th ed (Toronto: Tophatmonocle Corp., 2020) at 158. [7] R v Roy, 2012 SCC 26, at paras 1-2. [8] Supra note 6 at 95. [9] Skoke-Graham v The Queen, [1985] 1 SCR 106 at page 107, 16 DLR (4th) 321. [10] Criminal Code, RSC 1985, c C-46, s 176(1). [11] Supra note 1 at para 348-349. [12] Ibid at para 356. [13] Ibid at para 359. [14] Wilson v British Columbia., 2015 SCC 47, at 302. [15] Supra note 6 at 3. [16] Supra note 6 at 158. [17] Supra note 14 at para 34. [18] Supra note 6 at 4. [19] Supra note 14 at 302. [20] Supra note 14 at para 34.