Trudeau’s new law to protect health care workers will make no real difference and it might make things worse

December 3, 2021

Last week the Trudeau government introduced legislation advertised as a cure for the problem of anti-vaccination and COVID protests outside Canadian hospitals.

The new legislation fulfills one of the Liberal’s criminal justice election promises. Back on the hustings, Trudeau vowed to criminalize blocking access to hospitals, saying, “it’s not right that the people tasked with keeping us safe and alive during this pandemic should be exposed to hatred, violence, fear and intimidation.”

Colour me surprised: another case of politicians using criminal justice legislation as a political communication tool.

It is a move right out of the Conservative playbook.

The Harper government also had a habit of using the high-profile news story of the day to justify significant changes to the criminal law. In their case, the sensational cases provided political cover for ideological legislation that played well with the Conservative base — but typically did little to protect society.

In Trudeau’s case, the legislation to increase protections for healthcare workers is less about increasing protection and more about signalling virtue and creating a perceived political wedge.

Because at the end of the day, the new legislation does little to increase protections to frontline healthcare workers, and it will do nothing to stop these workers or their patients from being exposed to protests.

The new law makes it an offence to, with the intent to provoke a state of fear, block a member of the public from obtaining health care services or impede a health professional in the performance of their duties. When passed into law, it will also be a crime to intentionally obstruct or interfere with another person’s lawful access to a place where a health professional provides health services.

That all sounds good, except these things are already illegal.

It is already a crime to block access to a hospital and intimidate, harass, threaten, or assault health care workers. It is already a crime to cause a disturbance in a public place by yelling, shouting, or otherwise disturbing public peace.

Trudeau’s new law changes none of that. The problem outside our hospitals is not a gap in the law. The authorities are just not enforcing our current laws.

In fact, with the added intent element in new legislation — the requirement that the prohibited act be done with the intent to provoke a state of fear — it may be more difficult for prosecutors to prove their case under Trudeau’s new law.

There is no argument, especially in the middle of a pandemic, that protesting in front of a hospital is a hurtful act. But not every hurtful act is or should be criminal.

The COVID protestors are ill-informed and seduced by misinformation. And the last thing that health care professionals, the same people to have stretched themselves to the breaking point during the pandemic, need is to be exposed to unjustified and obnoxious criticism outside their workplace.

But the new Liberal bill won’t stop any of that.

The legislation has a built-in defence that “no person is guilty of an offence by reason only that they attend at or near, or approach, a place [where health services are provided] for the purpose only of obtaining or communicating information.”

Protests outside hospitals will still be perfectly legal, and protestors can still proudly write dangerous misinformation on placards. They can still unjustly criticize hardworking and selfless medical heroes.

Trudeau’s new bill does not substantively change anything. It is more of a political communications tool than a remedy to a problem.

But this legislation is worse than that.

For some inexplicable reason, the needless criminal law legislation includes important legislation to increase the amount of paid sick days for federal workers. Since the pandemic started, this measure has been called for by public health officials and NDP Leader Jagmeet Singh.

Likely, the criminal law portions of the legislation will not receive the same scrutiny they would otherwise because the government packaged them with the paid sick day increases.

Unnecessary criminal justice legislation comes with a cost.

The bloating of the Criminal Code with duplicative laws makes law enforcement and prosecution more complex and burns scarce resources. And maybe even more importantly, there is an opportunity cost to these performative bills.

Instead of using the parliamentary time to debate needless laws, we could enact long-promised and under-delivered legislation to reduce systemic racism in the Criminal Code, modernize our drug laws, or reform our correctional system.

It is time for the government to stop performing and get down to the real work of criminal justice reform.