The Impact on Health Workers of the Politicization of Covid-19 Public Health Measures: Canada’s Criminal Law Response

Contributed by Mark Faassen

A healthy immune system guards the body against bacteria, disease, and infection. Should the immune system malfunction, it causes the body to turn on itself and mistakenly attack healthy cells. The result is a bodily house divided, weakening function and potentially turning life-threatening.

Over two and a half years into the Covid-19 pandemic, public health officials and health care workers have become unexpected targets for many of the preventative measures and restrictions experienced by society. The world over, nurses, physicians, and other front-line health workers caring for the sick went from being celebrated heroes in early 2020 to objects of harassment and attacks. Public health officials, used to working mostly behind the scenes to protect the public’s health prior to the pandemic, suddenly experienced a new visibility and vulnerability.

Canada has not been immune to these developments. Health officials and workers in Canada have faced threats and abuse both online and in the workplace, including at hospitals and health clinics. As the pandemic wore on, angst and angerfrom a vocal minority took the view that in addition to having no pandemic health measures, health workers should even not comment, provide quality information, or advocate publically on issues affecting public health.

The nature of the in-person harassment has varied. Protests were staged outside of the personal residences of medical officers of health across Canada, including against the chief medical officers in Nova ScotiaSaskatchewanQuébec, and against the medical officer of health in the town of Peterborough, Ontario. Protestors also blocked access to hospitals and health clinics, targeting both health workers and patients trying to access care, and engaged in violent behaviour inside. Health workers have further experienced verbal abuse and received racist, sexist, and anti-Semitic messages, including angry notes left on their parked vehicles.

The nature of the online harassment has also varied. One end of the spectrum has included the posting of fake professional reviews, complaining to health workers’ employers, and initiating frivolous complaints to professional regulators. Health workers have also experienced doxing, meaning the exposing of private information online such as private contact information including a home address without consent, racist abuse, and violent threats including death threats

Notably, whether in person or online, female and racialized health workers are more likely to be the targets of such abuse. Abuse directed at women is much more likely to be sexually explicitNurses and personal support workers, especially women and racialized workers, tend to bear the burden of in-person workplace abuse of all health workers.

Whether in person or online, female and racialized health workers are more likely to be the
targets of workplace harassment and abuse. || (Source: pixabay // Elf-Moondance/905 images)

Similar to autoimmune diseases, the precise cause of the turning against health officials and workers and the rise in harassment are somewhat elusive. Potential reasons are several. One perspective cites the initial scientific uncertainty around Covid-19 (including understanding disease transmission as via surfaces, droplets, or airborne) and that some public health officials were less prepared for becoming public leaders responsible for leading communications in a quickly evolving, little understood pandemic: “Unfortunately the communication of uncertainty was not always clear, leaving the public confused about the disease’s trajectory, the feasibility of policies to mitigate the pandemic, and when it would end. All of this provided and enabled opportunities for misinformation and politicization to undermine the aims of public health.” 

Other reasons for the rise in harassment against health workers in particular include: fear, panic, and misinformation as to how SARS-CoV-2 is spread; “social media and other tools of misinformation” permitted groups opposed to government action generally to focus their attention to public health; elected leaders communicating messages about Covid-19 that sometimes conflicted with public health messages; and “toxic misinformation about the pandemic and vaccines…and understaffing and burnout in health care contributing to frustration on all sides.” 

Legislative Response: Amendments to the Criminal Code

International governments, including IndiaChinaNepal, and Canada, resorted to legal responses to better protect health workers. Canada tabled a bill to protect health workers from intimidation in November 2021, Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code. It received Royal Assent on December 17, 2021 and came into effect on January 16, 2022. 

Section 423.2 (1) of the Criminal Code creates a health services intimidation offence. It is a criminal offence to engage in any conduct with the intent to provoke a state of fear in:

  • a person in order to impede them from obtaining health services from a health professional,
  • a health professional in order to impede them in the performance of their duties, or
  • a person, whose functions are to assist a health professional in the performance of the health professional’s duties, in order to impede that person in the performance of those functions.

Section 423.2 (2) of the Code creates a health services obstruction offence. It is a criminal offence to intentionallyobstruct or interfere with another person’s access to a place at which health services are provided by a health professional. Section 423.2 (3) stipulates that a person who commits one of these offences will be liable up to 10 years imprisonment or for less serious cases, two years less a day on a summary conviction.   

In a balancing of the fundamental freedoms protected under the Canadian Charter of Rights and Freedoms (namely, section 2(b) protecting freedom of thought, belief, opinion and expression; and section 2(c) protecting freedom of peaceful assembly), only conduct intended to provoke a state of fear in a health professional or a person attempting to obtain health services is required. Further, section 423.2 (4) expressly permits a defence for persons who are merely at a place at which health services are provided “for the purpose only of obtaining or communicating information.” According to an Explanatory Note prepared by the Department of Justice, peaceful protests or demonstrations outside health facilities are not criminalized. 

Amendments to the Criminal Code of Canada include the creation of a new intimidation offence
prohibiting conduct intended to provoke fear, to impede with the duties of a health care worker,
or to impede a person from receiving health care services. || (Source: pixabay //
mohamed_hassan/5927 images)

Lastly, the sentencing provisions in section 718.2 of the Criminal Code now make it an aggravating factor in sentencing for any offence when there is evidence that: the offence was committed against a person providing health services, as part of their duties (section 718.2 (a)(iii.2); or where there is evidence that the offence had the effect of impeding another person in obtaining health services (section 718.2 (a)(vii)). 

The new offences are intended to discourage disruptive protests on or around hospitals and other health facilities as seen across Canada in 2021 and during the “freedom convoy” or occupation of Ottawa in early 2022. Further, the new offences are broadly worded. The Canadian Association of Police Chiefs has offered that the new offences will help bolster police efforts to pursue online intimidation related to the provision of health care. The new offences my also apply to intentionally following a health professional to and from work, or patients trying to intimidate health professionals with respect to the implementation of public health measures. They could further apply where patients are trying to access other health services (e.g. abortion).

While these new offences were welcomed by health workers others have questioned their necessity given that assault, intimidation, and harassment are already criminal offences. One view characterizes the new offences as political communications theatre and cautions a potential lack of efficacy and opportunity cost to unnecessary criminal legislation. According to federal Justice Minister, David Lametti, police and prosecutors rarely used existing criminal offences harassment of health workers, necessitating tailored offences. It is unclear why existing Criminal Code offences previously went underused by law enforcement.  

It is still too early to tell how these new Criminal Code provisions will be applied and enforced. To date, there are no reported decisions since the offences came into effect. Media reports suggest that police are starting to enforce and make use of the new offence, including in Nova Scotia, and Peterborough and Ottawa in Ontario.  

Moving Forward

Regrettably, the intimidation and harassment of health workers across the globe predates the pandemic. A study published in 2010 indicates that nearly one-third of family physicians in Canada reported experiencing abusive behaviours from a patient or patient’s family in the previous month. Three-quarters of those who experienced an abusive encounter did not seek help and 64% did not report the incident. Canadian physicians working in hospital emergency and psychiatric departments have an increased chance of an abusive encounter. 

In fact, the House of Commons Standing Committee on Health issued its report Violence Facing Healthcare Workers in Canada with numerous policy recommendations in 2019. Its findings included that workplace violence in health care settings is “pervasive” across Canada and that health workers have a fourfold higher rate of workplace violence than any other profession. Its recommendations included collecting data and statistics on violence in health care, developing a national public campaign to raise awareness of the violence experienced by health workers, and developing a pan-Canadian framework to prevent violence in health care settings. 

The intimidation and harassment of health workers globally predates the pandemic. Moving
forward, subsequent legal responses to holistically address the issue will require thinking beyond
the criminal law to address other structural aspects of the problem. || (Source: pixabay //
fernandozhiminaicela/2460 images)

Although swift legal action was required to protect health workers from a surge of undue harassment and intimidation since 2020, the pandemic merely exacerbated a pre-existing systemic issue. Moving forward, subsequent legal responses to holistically address the issue of health worker harassment, intimidation, and violence will require thinking beyond the criminal law to address other structural aspects of the problem. Improved data collection of the abuse health workers regularly face (including with respect to racism), the particular roles health profession regulators and hospitals may play through the adoption of regulation, policies, or standard protocols, the cooperation of law enforcement to fully utilize criminal sanctions, and the improved involvement of social media platforms in curtailing false health information are some areas worthy of exploration. Now is the time for stakeholders to engage in reflection  and collaboration, including between levels of government in Canada.  

Biography

Mark Faassenis a lawyer and Junior Online Editor of the McGill Journal of Law and Health. He is currently an LLM candidate at McGill University’s Faculty of Law. His legal practice focuses on professional liabilityand health law.

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