In R. v. Pruden, 2021 ABPC 266, October 28, 2021, the accused was charged with the offence of assault. The evidence at the trial established that while at a bar, the accused removed his mask and intentionally coughed in close proximity to one of the bar’s employees.
The accused was convicted. Judge Lamoureux noted that “[w]hile it is clear, that physical touching, even if minimal, is an application of force sufficient to sustain a conviction, the more difficult issue arises when the application of force cannot be seen with the naked eye. The Court can have no difficulty convicting an individual who coughs and spits as the application of force is visible to the naked eye, in the saliva transmitted through the act of coughing. But, what about the force which produces a bodily substance which cannot be seen with the naked eye – the microscopic respiratory droplet or aerosol produced from lung air during a cough?” (at paragraph 46).
In convicting the accused of the offence of assault, Judge Lamoureux concluded that an application of force had occurred (at paragraphs 55 and 56):
The Court interprets the term “force” as that word is used in section 265(1)(a) of the Criminal Code of Canada to include a force created by 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. The basic mechanism of breathing, to inhale and to exhale lung air, is caused simply by differences in air pressure of the atmosphere and air pressure within the lungs. The force created by the act of breathing is the result of differences in pressures between atmospheric air and air pressure within the lung. 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.
Accordingly, when Mr. Pruden engaged in an intentional act of coughing, he was emitting a force consisting of lung air molecules into the atmosphere. The COVID virus, which is spread through airborne transmission, can be found in the exhaled breath of a potentially infected person. The virus is part of the respiratory droplets dispersed into the atmosphere through coughing. When this occurs in a closed space, such as a room, in close proximity to others located in that room, the COVID virus can be emitted into the surrounding air in the room. This, is an act of force within the definition of force in section 265(1)(a) of the Criminal Code of Canada. Mr. Pruden, by his own testimony, is convicted of the offence of assault by coughing pursuant to section 266 of the Criminal Code of Canada. The Crown has proven the actus reus and the mens rea beyond a reasonable doubt.