Coughing customer found guilty of assault

A hostile customer at a Calgary bar was found guilty of assault for coughing at one of the establishment’s employees, according to a report.

The incident took place in November 2020, when a provincially imposed mask mandate was in place. Kyle Claude Pruden, the customer, was at the Black Swan pub.

The 35-year-old Pruden approached one employee to collect his winnings from a VLT machine inside the southwest bar, according to various reports.

The employee told Pruden he could not be paid because the pub’s owner was not present and she didn’t have enough cash on hand, according to a report from Calgary Herald.

Then, Pruden – who was intoxicated at the time – pulled off his mask and asked, “What is this? Because of COVID?” before coughing at her from one metre away.

“Masking in public, in combination with handwashing and physical distancing, is still one of the best ways we can protect ourselves and others against COVID-19, especially our most vulnerable community members as countries race to vaccinate their populations,” according to several groups that launched World Mask Week 2021 in July.

During the incident, a 60-year-old patron intervened and placed a hand on Pruden’s shoulder before suggesting he leave. However, Pruden swung around and struck the older patron in the face.

During the trial, Pruden’s lawyer admitted his client coughed in the employee’s direction. However, they argued it was done in a “sarcastic” manner and was not intentional.

In a written decision posted online, Judge Heather Lamoureux, who heard the case, said it presented a unique determination of whether a cough constituted a non-consensual application of force, or assault. Lamoureux said that the mandatory masking in place during the COVID-19 pandemic was also a consideration.

“The Crown and defence agree that while the amount of force is not material, they differ on the question as to whether the act of coughing involves an application of force,” she wrote.

Lamoureux said that under the Criminal Code, assault requires a general intent.

“The cough was not a reflexive action but rather an intentional physical act,” she wrote in determining Pruden’s actions met the legal standard of an act of force.

Pruden was also found guilty on a second assault count for hitting the other patron of the bar, with the judge rejecting his argument that the blow was an act of self-defence.

According to the Calgary Legal Guidance, if you are convicted of assault as a summary conviction offence, you may be given a fine of up to $5,000.00, or 6 months in prison, (or both).

Meanwhile, if you are convicted of assault as an indictable offence, you could be sentenced to up to 5 years in prison.

In August, Yukon helped out employers in the province prepare as the new Violence and Harassment Prevention Regulation.