Legal authority to restrict unvaccinated people from attending public places and pepper spray as a prohibited weapon

This week on Legally Speaking with Michael Mulligan:

An increasing number of jurisdictions, including New York, Quebec, France, and Israel are prohibiting people who are not vaccinated for COVID-19 from being in public places where people are in close contact, such as restaurants, bars, concerts, and museums.

In Canada, the federal government has announced that it will be providing electronic vaccine passports to facilitate international travel, as well as provincial restrictions such as those being imposed in Quebec. 

In British Columbia, the Public Health Act provides authority to prohibit people who have not been vaccinated from engaging in activities or entering places such as restaurants. These provisions are found in section 16 of the Public Health Act. 

Other possible restrictions would include not permitting unvaccinated people from attending in-person classes at universities or residing in university student housing. The University of Ottawa has made COVID-19 vaccination mandatory for students, staff, and faculty.

Section 15 of the Public Health Act is also discussed on the show. This section makes it an offence for anyone to “willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.” 

Also on the show: pepper spray is a prohibited weapon in Canada. This means that simply possessing pepper spray can result in a criminal conviction, even if it’s not used. Because the theoretical maximum penalty for possession of a prohibited weapon is 10 years in jail, someone who is not a Canadian citizen could end up being deported, without a hearing, if convicted of this offence. 

The regulation that makes pepper spray a prohibited weapon described what is prohibited in this way:

1.   Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of 

(a)  tear gas, Mace or other gas; or

(b)  any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.

The BC Court of Appeal has considered this section and concluded that even though something like Mace, which is designed for self-defence, is prohibited, bear repellant, which may be the same substance in a larger bottle, would not be prohibited because it’s not “designed” to injure or immobilize a person. 

Even though bear spray may not be a prohibited weapon, it could still be a weapon and therefore constitute an offence if someone were to carry it in a concealed manner, or for a dangerous purpose. 

A sentencing decision involving pepper spray is also discussed on the show. It involved an altercation between an 86-year-old and a 57-year-old man shopping at Costco in Vancouver. Following an alleged elbow bump in a doorway, the 86-year-old man pepper-sprayed the 57-year-old man. Despite having pepper spray in his eyes, the 57-year-old ran after the 86-year-old and pushed him with both hands from behind. 

The 86-year-old man fell, hit his head, and died. The 57-year-old was convicted by a jury of manslaughter and sentenced to 18 months in jail.

This case may have formed part of the basis for the federal government’s rejection of Alberta’s recent request to legalize pepper spray for self-defence.

Follow this link for a transcript of the show and links to the cases discussed.