COVID-19: When is spitting seen as assault? Lawyer weighs in after Kelowna man charged

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COVID-19: When is spitting seen as assault? Lawyer weighs in after Kelowna man charged
WATCH: A Kelowna RCMP officer is in isolation after allegedly being spat at by a suspect. – Apr 8, 2020

A Kelowna man is facing a charge of aggravated assault after he was accused of spitting at a police officer during an arrest on Saturday.

Police said the 39-year-old was being arrested for allegedly breaking and entering into an empty home at the time.

During the arrest, RCMP said, he allegedly spat “in the face of one of the police officers.”

Police spokesperson Const. Jocelyn Noseworthy said “spitting on anyone is always a serious assault…but to do so in this current pandemic is particularly unacceptable.”

“The criminal law has always recognized that the intentional application of force, without consent, amounts to an assault,” Kelowna defence lawyer Byran Fitzpatrick said.

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“So by virtue of that definition spitting, coughing on somebody certainly would amount to an assault under the Criminal Code.”

Indeed, even before the pandemic there are examples of people being charged with assault for spitting on someone.

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The issue has been pushed into the spotlight during the COVID-19 pandemic, with heightened concerns about bodily fluids spreading the disease.

Fitzpatrick points out that under the Criminal Code, for coughing or spitting on someone to be considered assault it has to be done intentionally.

“Coughing unintentionally or spitting unintentionally is not going to amount to an assault under the Criminal Code,” Fitzpatrick said.

Fitzpatrick said if someone is coughing or spitting on another person with the intent to transmit a disease, the courts would likely look at that as an aggravating factor, even if the victim doesn’t become sick.

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Fitzpatrick said that is because the courts also consider the physiological harm that can occur if a victim is concerned they have been exposed to a disease.

During the coronavirus pandemic, in late March and early-April, there have been a host of examples, from across Canada, of people who were arrested or charged after coughing or spitting.

An Ontario man was charged with assault for allegedly spitting on a grocery store clerk, an Ottawa break-in suspect was charged with assault after allegedly spitting on officers and claiming he had COVID-19, an Alberta man was charged after allegedly coughing on an Edmonton bus driver and transit peace officers before claiming he had tested positive for coronavirus, and a man in New Brunswick was arrested for coughing in someones face.

— with files from Greg Davis, Matt Carty, Beatrice Britneff, Emily Mertz and Ashley Field

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