Following protests against vaccination mandates that took place in the Fall of 2021 at various healthcare sites across Canada, the Criminal Code was amended to include the offence of intentionally taking steps to intimidate health-care professionals in specific circumstances. These changes came into effect on January 16, 2022.
Section 423.2 now makes it a criminal offence to:
- “engage in any conduct with the intent to provoke a state of fear in
(a) a person in order to impede them from obtaining health services from a health professional;
(b) a health professional in order to impede them in the performance of their duties; or
(c) 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”
- “without lawful authority, intentionally obstruct or interfere with another person’s lawful access to a place at which health services are provided by a health professional
Section 423.2 clarifies that it is not an offence to attend at a place in which health services are provided “for the purpose only of obtaining or communicating information.” What the courts will consider to be merely “obtaining or communicating information” and “engaging in conduct with the intent to provoke a state of fear” will likely depend on the circumstances of each case.
While it is not specifically mentioned in the wording of section 423.2, other provisions of the Criminal Code also make it an offence to
- assist a person to commit an offence;
- conspire to commit an offence;
- counsel someone to commit an offence;
- attempt to commit an offence; or to
- assist someone to escape after committing an offence.
As a result, attempting to intimidate a health-care professional (within the meaning of section 423.2) or encouraging someone, assisting someone and conspiring with someone to intimidate a health-care professional may also lead to criminal charges.
In some circumstances, an organization could also be convicted of an offence under section 423.2. Under section 22.2 of the Criminal Code, where a senior officer of an organization, for the benefit of the organization, directly engages or supports conduct intended to instill fear in health-care professionals to impede them in the performance of their duties, the organization itself may also be considered to have committed an offence.
Forms of intimidation prohibited against health-care professionals under the Criminal Code
The new offence is intended to discourage protests that take place on and/or around health facilities and interfere with the ability of health-care professionals to go about their work or with the ability of patients to obtain care.
However, the wording of section 423.2 is also broad enough to prohibit other forms of intimidating conduct. For instance, the harassment of a health-care professional through social media in circumstances that could be construed as intending to discourage them to provide healthcare or personal care services could also lead to criminal charges. Similarly, deliberately following a health-care professional to and from work could be considered criminal intimidation related to the provision of health-care services under section 423.2.
Power to intercept private communications to establish that an offence of intimidation against a health-care professional is being committed
The recent amendments also enable law enforcement to obtain an order from a judge to intercept private verbal communications, including private telecommunications,1 to assist in investigating instances of intimidation against health-care professionals, when the specific safeguards contained in the Criminal Code to protect against undue invasion of privacy have been met2.
Aggravating factors for consideration during sentencing
Finally, the sentencing provisions of the Criminal Code now stipulate that when determining the appropriate sentence following a finding of guilt, a court should view “evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services” and “evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services” as aggravating factors warranting a more severe sentence.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel at no charge. All calls are confidential.
- Section 183 of the Criminal Code now also outlines circumstances in which the interception of a private communication is warranted while investigating intimidation of health care professionals as seen in for instance, section 183(lxxi)
- Criminal Code, R.S.C., 1985, c. C-46, section 184(2)
Published January 19th, 2022
THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.