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| Kyla Lee |
Mohammad Movassaghi was charged with a number of offences, including several violations of British Columbia’s COVID-19 gatherings and events orders. Movassaghi hosted numerous parties, featuring dance poles, cover charges, alcohol for purchase and professional DJs (R. v. Movassaghi [2021] B.C.J. No. 962).
During the sentencing hearing, where Movassaghi received a $5,000 fine and 18 months probation, B.C. provinciacl Court Judge Ellen Gordon made cutting remarks about Movassaghi’s behaviour, correctly characterizing it as criminal in nature. She went further, however, to state:
“If someone who had been at your party was infected and died, as far as I’m concerned, you’re guilty of manslaughter. If someone who had been at your party was infected and passed it on to grandma, as far as I’m concerned, you’re guilty of manslaughter.”
These comments raise an interesting question. Can a person who is hosting events in violation of COVID health orders face more serious criminal charges, including manslaughter? The answer is yes, although it is not likely. The likely charge would be one of unlawful act manslaughter.
Unlawful act manslaughter was recently considered in R. v. Denny 2016 NSSC 76, where the court defined it as “the spectrum of criminal responsibility for unlawfully causing the death of another person, ranging from circumstances of “near accident” to “near murder”.
The unlawful act must not only be unlawful but it also must be objectively dangerous and likely to injure another person. So, for example, a theft would likely not qualify as an unlawful act for the purpose of a manslaughter charge. But hosting a party with no COVID safety plan, no compliance with health orders, and in blatant and repeated defiance of those orders certainly is objectively dangerous and likely to injure.
The risk associated with the unlawful act in these types of cases must also be more than trivial or transitory. Again, given what we now know about transmission of COVID-19, the act of cramming a large number of people into a small, indoor space where they are engaged in dancing and consuming alcohol poses much more than a trivial or transitory risk; it is indeed the highest-risk setting for transmission.
And, of course, the unlawful act must have led to the death even where the death itself was not foreseeable.
This is the point that becomes the most difficult for Crown counsel, should anyone be charged with an unlawful act manslaughter for defying a COVID-19 health order. As the science currently stands, there is no DNA sequencing or ability to positively identify the source of an individual COVID-19 virus. At best, the type of variant could be identified with testing, but that still does not mean the variant was transmitted by anyone in particular.
As a defence lawyer, if I were handling such a case, the absence of any scientific precision to pinpoint the source of transmission would be the crux of my defence.
Certainly, it would be reasonable to expect that other individuals at the party also became infected with COVID-19, and that transmission likely then occurred at the party. However, it would be difficult for Crown counsel to obtain this evidence, as contact tracing information is supposed to be kept private by health officials. This would require a production order for the private medical information of the party guests.
Absent evidence of other individuals at the party becoming positive for COVID-19, it would be relatively easy to raise doubt that the transmission occurred at the event. As a defence lawyer, I would subject each of those individuals to cross-examination about their compliance with health orders.
Given that each party guest knowing defied COVID-19 orders by attending the gathering, it is reasonable to assume that they were not perfectly complying with the orders otherwise. All their actions leading up to attendance at the party, and following it, would be the subject of intense scrutiny. A well-prepared defence counsel would be wise to bring an O’Connor third-party records application for material related to the activities of each party attendee and their movements both before and after the event.
In addition, even if there were proven transmission at the event, the deceased and their behaviour would be as much a focus of the defence as anything else. As the deceased cannot be cross-examined or testify, a third-party records application may produce some hearsay evidence but ultimately their friends and family members would be called to testify about that individual’s compliance.
Consider the public interest of this: a person dies as a result of catching COVID-19, possibly at an unlawful party. Their friends and family are then effectively put on trial to show that the deceased person caused their own death, and potentially caught COVID-19 in any other place.
From a public interest perspective, the strain on the justice system and the toll that this would take on friends and family of the deceased would arguably not be worth the effort of obtaining a conviction, particularly where so much doubt exists.
So while it is certainly possible that a person could be charged with an unlawful act manslaughter, the likelihood of such a case occurring and proceeding to trial is, in my opinion, slim.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! and the author of Cross-Examination: The Pinpoint Method. She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.
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