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:
- read a submission from the Canadian Bar Association about the travel ban, and
- 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, CJKCNL |
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.
The new
section of the Public
Health Protection and Promotion Act reads as follows:
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.
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.
*Is*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.
-srbp-