A man has been convicted of two counts of assault when the patron pulled down his mask and coughed at a bartender and struck another patron in a Calgary bar.
The convictions came after an altercation at the Black Swan Pub in early November 2020.
Kyle Claude Pruden, a 35-year-old welder in the oil and gas industry, was in the bar playing VLTs when he went to the bar to cash out his winnings.
Kayla Cosette, the employee, said she was unable to pay out because the bar owner hadn’t replenished the cash float to pay out VLT winners.
Pruden testified he “ripped off my mask” and said “What is this? Because of COVID?” He then coughed at Cosette in close proximity.
A 60-year-old frequent patron of the bar put his hand on Pruden’s shoulder to intervene after Pruden was swearing at the bartender. Pruden swung and hit the 60-year-old, bruising him.
Testimony from Pruden, Cosette and the other patron to a Calgary court showed Pruden was “very intoxicated” at the time.
In her decision, Judge Heather Lamoureux said the coughing action was a “unique issue,” as three previous cases involving coughing during the COVID-19 pandemic didn’t contemplate whether a cough was an act of force nor its intent — all cases had guilty pleas entered.
Lamoureux also relied on scientific consensus that COVID-19 is spread through respiratory droplets, which a person carrying COVID-19 would launch when coughing.
The judge found that Pruden’s cough was “not a reflexive action” and fell within the definition of assault in the Criminal Code.
Lamoreux also found that while the 60-year-old did place his hand on Pruden’s shoulder, the force was “minimal” and Pruden had other courses of action he could have followed.
“The nature and proportionality of Mr. Pruden’s response to Mr. Grant’s action, was excessive in all of the circumstances,” the judge wrote.