06 May 2020

The Bow Wow Parliament creates a Kangaroo Court #nlpoli

The Bow Wow Parliament
The first casualty of the current pandemic in Newfoundland and Labrador was democracy and on Tuesday, the pandemic added to its draconian toll.

A handful of members of the House met with the permission of a government official and passed without much discussion a measure that created a kangaroo court in which the official could apply in secret to two cabinet ministers, obtain a de facto conviction of someone without what lawyers call due process, and then send off the police to scoop up the hapless person who may or may not have violated a health order under the health protection law. 

Health minister John Haggie introduced the amendment. He shed no light on why the government had banned all non-residents from entering the province except people in two special categories.  Haggie did not explain why the restrictions that had been in place were not working. He gave no indication why he and his colleague the justice minister needed the powers of a judge already set out in another section of the health protection law to enforce any orders.

When his turn to speak came, opposition leader Ches Crosbie spoke briefly about what he referred to as new police powers that would be used to enforce all the chief medical officer’s special orders.  He noted the concerned expressed to him by lawyers that the recent travel ban was illegal and/or unconstitutional. 

Then Crosbie said that he and his caucus had decided to vote for amendment in exchange for a promise the government would:   
  1. read a submission from the Canadian Bar Association about the travel ban, and 
  2. ask the chief medical officer to amend her improper travel ban to allow a few categories of exemptions they wanted.

That is all.

Such are the intellectual, ethical, and legal standards of the Bow Wow Parliament.

The Right Honourable Skippy,
No one should be surprised.  At the start of the pandemic, Crosbie and NDP leader Alison Coffin abandoned their responsibility to hold the government to account in exchange for what they believed was an insider view of how government was running the emergency.  Nothing ever came of the ersatz Faustian bargain Coffin and Crosbie made, and as Tuesday’s charade in the House made clear, the public interest actually never entered anyone’s head in the legislature anyway.

Crosbie had no problem, either, with the fact that this particular amendment only came into his hands late on Monday afternoon.  Neither he nor his colleagues had time to give it serious thought but given the speed with which they fashioned their trade off that legitimized the government’s action, they did not want to give it any thought.

Again, no surprise for a politician in Newfoundland and Labrador since 2003.

28.1 (1) While a measure taken by the Chief Medical Officer of Health under subsection 28(1) is in effect, the Minister of Justice and Public Safety may, upon the request of and following consultation with the minister, authorize a peace officer to do one or more of the following:
(a)  locate an individual who is in contravention of the measure;(b)  detain an individual who is in contravention of the measure;(c)  convey an individual who is in contravention of the measure to a specified location, including a point of entry to the province; and(d)  provide the necessary assistance to ensure compliance with the measure. 
(2)  A peace officer who detains or conveys an individual under subsection (1) shall promptly inform the individual of(a)  the reasons for the detention or conveyance;(b)  the individual’s right to retain and instruct counsel without delay; and(c)  the location to which the individual is being taken.

In their remarks in the House, both Haggie and Crosbie made it sound like someone left enforcement measures out of the Act when the House passed it.

Nothing could be further from the truth.

Section 34 of the original Act set out a simple process that the chief medical officer or one of her colleagues could use to enforce an order.

The medical officer would simply apply to a Supreme Court judge for an order to apprehend, detain, and, if necessary, quarantine the individual.

This section provided all the necessary powers the chief medical officer needs in any conceivable situation. Having to talk to a judge in open court ensured an independent review of the measures to ensure that they met the requirement from section 13 that the orders should only do what is necessary and nothing more.  Applying to a judge also ensured protection of the accused person’s rights.  And the section also allowed the judge to enforce the medical directions – including quarantine – that would be necessary to meet the CMO’s needs.

The new powers for the justice and health minister didn't include an amendment to delete the enforcement process under section 34 and there's no time limit on the kangaroo kourt section.

None of that came up in the House.  And none of that has come from any government official, including the health minister since last week.  Add that to the list of omissions that make the whole business highly suspicious.

The new section gives the power of decision to two politicians – the health minister and justice minister – who may talk among themselves, decide that an individual *is* in contravention of the order, and send the police out to do their work.

 Not maybe guilty. 


There is not even the pretense of honouring the principles of natural justice contained in the kangaroo court amendment.  The accused has no right to defend herself against the accusation or even be aware of the proceeding until police pound on her door and take her away.

That the order uses the word “detain” instead of arrest will be cold comfort to the individual stuffed in the back of a police car and spirited off to some police lock up or detention area. In any practical meaning of word, the person the police will pick up under the new section 28.1 will be arrested:  charged and convicted of an offence and unable to leave of his or her own accord. The words in the section have a plain meaning that is unmistakeable.

The potential for abuse is considerable, on the face of it.  Given the way the travel ban came about, the haste with which the government crafted this section, and then rammed it through the legislature with the ethically dubious support of the opposition parties only reinforces the need for concern.

Bad things have happened in this province in ordinary times when government acted this way. Public inquiries have highlighted repeatedly – from the House spending scandal to Muskrat Falls - that cutting corners on public deliberation leads to bad outcomes.  Very. bad. outcomes. 

There is little chance that doing the same bad things during a pandemic will suddenly make them harmless or, as some might have it, virtuous.  Replacing judges with politicians, as the House did on Tuesday, is a whole new form of bad.

Unfortunately, given the state of the province's public life at the moment, there is little the public can do but hang on tight, hope for the best, pray someone challenges the whole mess in court, and see what happens next.