A man arrested after allegedly spitting at police during a fracas outside Adamson Barbecue must undergo a COVID-19 test and disclose the results as a condition of his bail — a requirement several lawyers said is “unreasonable” and “likely unlawful.”
Michael Belito Arana was arrested Nov. 26 as protesters, rallying around the restaurant’s three-day-long defiance of lockdown rules, confronted police. The 27-year-old Markham man faces several criminal charges, including six counts of assaulting a police officer.
Arana represented himself at a bail hearing on Friday, where a Justice of the Peace, at the request of the Crown attorney, released him only if he immediately scheduled a COVID-19 test and promised to provide the officer in charge of his case “proof” of his test results.
“I am concerned that it is a wildly unlawful bail condition,” said lawyer Ian McCuaig, who is now representing Arana.
McCuaig said the requirement that Arana undergo testing and then disclose the results amounts to “a warrantless search.”
“Imagine a bail condition that said after your release, you will let the police into your apartment to look at whatever they want … Here, they get to look into his body,” he said.
McCuaig said Sunday he will be pursuing a bail review to challenge Arana’s bail conditions.
Lawyers uninvolved with the case also expressed concern over the bail condition, which they said was a significant “overreach” by authorities.
“This is a person who is presumed innocent … Compelling this person to get medical testing, then reporting the results of his personal medical history … is just completely unreasonable in these circumstances,” said Daniel Brown, vice-president of the Criminal Lawyers’ Association.
“It’s likely unlawful, and it sets a significantly dangerous precedent that everyone should be concerned about.”
Brown said police need a warrant to obtain “this kind of medical information,” and that would only be granted if a judge agreed that the request was rooted in reasonable grounds that it would show evidence of a crime.
“You can’t compel somebody to go get medical tests. That is not something that our law permits,” Brown said. “(This is) an end-run around the procedural safeguards that exist in our criminal justice system when it comes to the intimate medical histories.”
The Ministry of the Attorney General did not respond to questions about the appropriateness of the bail condition by deadline.
Adamson Barbecue’s Etobicoke location, outside which Arana was arrested, has become a flashpoint for many protesting Toronto and Peel Region’s return to lockdown, under which restaurants are not allow to have indoor or outdoor diners.
Premier Doug Ford announced the lockdown as COVID-19 cases surged in Toronto and Peel, where local public health officials asked for restrictions to help quell the virus’s spread. The order, which came into effect Nov. 23, suspends all in-person shopping at all non-essential retailers for at least 28 days.
The eatery’s owner, Adam Skelly, was arrested Thursday outside his restaurant. He faces a number of charges, both criminal and non-criminal, including attempting to obstruct police and trespassing.
Unlike Arana, Skelly’s bail conditions do not include the requirement to undergo testing, his lawyer confirmed.
Arana is charged with obstructing police, two counts of uttering death and six counts of assaulting an officer. At a press conference, Toronto police Supt. Domenic Sinopoli said “five of those counts involve spitting at an officer.”
Brown, from the Criminal Lawyers’ Association, questioned the value of the information that would come out of forcing Arana to get tested. If he tested positive, it would be impossible to definitively say when he contracted the virus or who else he may have infected, Brown said.
“If the officer wants to know if the officer’s been exposed to COVID, the officer can go and get a test,” he said.
Lawyer Cynthia Fromstein agrees that the bail condition is a “misuse of the criminal court to address a health concern.”
Fromstein has defended numerous people who were criminally charged for allegedly not disclosing their HIV-positive status, even though many of them she said “never passed the virus to anyone.” She sees some parallels between those cases and Arana’s bail condition, as they both involve “the use of criminal law where it really should not be used” to potentially criminalize a health issue.
In none of those cases does she remember a bail order that required someone to disclose personal health information, she said.
“This is just a far greater overreach,” she said.
JOIN THE CONVERSATION
Should COVID-19 tests be used in bail court this way? Share your thoughts.