Thank God for Andrew Abbass and his Lawyer

In the wake of the senseless killing of Don Dunphy by police over a Twitter message, thousands of people demanded and ultimately succeeded in forcing an inquiry into his death.

One of those outraged by the killing of Don Dunphy is Andrew Abbass.  Two days after Don Dunphy was killed, Andrew Abbass tweeted about his disgust with the Premier of Newfoundland and government in general. In response, police arrested Andrew Abbass and tossed him into a psychiatric facility against his will.

You wouldn't believe this happened in Canada, would you?

They claimed he was mentally unstable and posed a threat to himself or others, but in their zeal to get back to the coffee shop they couldn't be bothered to fill out a written statement, as required by law.  The admitting doctors similarly failed to properly fill out paperwork.  The entire admissions process took 19 minutes and left a man unjustly imprisoned against his will and in violation of the law.

Fortunately for folks like me and perhaps like you, Andrew Abbass isn't about to take that crap lying down. Nor is his lawyer.  He immediately filed for a writ of habeas corpus and went before a judge.  That judge sided with the police and the hospital and said he did not have jurisdiction.

He was wrong.

You cannot hold a man against his will and toss him in a psychiatric facility simply because you dislike what he says. Freedom of speech is a thing, even here in Canada, and that thing must be respected, at least until they repeal the Charter of Rights and Freedoms.

As I dug into this story about one man's illegal incarceration for the crime of speaking his mind, I discovered a much larger rabbit hole than I could have imagined.

Andrew Abbass did not express frustration with his government in a bubble.  There are good and valid reasons for what he said, even if those in power did not like the manner in which he said it.

Tough.

If you don't want to face criticism for killing people without just cause, then stop killing people without just cause. We'll stop criticizing.  It's pretty simple.

I'll be writing more about this case and the one that spawned it, the killing of Don Dunphy in 2005, in coming days and weeks.  It's not a small case, nor is it a small issue.  It is, unfortunately, one more in a long line of examples of the RCMP believing they are above the law and can do as they please.

I'll end this missive with the tail end of the ruling in Abbass v. The Western Health Care Corporation, 2017 NLCA 24 where the Newfoundland Supreme Court has harsh words for the original judge, the police and the mental health community.

[51] If anger about political events and words of defiance to authorities are dealt with as signs of mental illness, a fortiori mental illness warranting involuntary committal, then our society is in a dangerous place. Such anger and defiance are characteristic of political dissent. As the history of authoritarian societies has taught us, confinement in a mental institution is a particularly insidious way of stifling dissent, directly and through intimidation. Was this the intent of the police in this case? Did the physicians simply lend their authority to what the police asked them to do? Did they assume that a person who acts in the way Mr. Abbass did needs help and further assessment and observation, without turning their minds to the specific limited statutory criteria that would justify his deprivation of liberty? On the face of the materials before the applications judge these were possible (though, of course, not the only) interpretations of what occurred. The applications judge owed a duty to Mr. Abbass to look further into the circumstances, which to say the least appear to be extraordinary.

[52] The reality is that if you are involuntarily confined, you are viewed differently; you are seen as less credible. That is not how it should be but that is how it is. As well, there is the intimidation factor. If the police can take you away once and the physicians confine you, maybe they will do so again.

[53] Mr. Abbass felt that what the police and physicians did was without proper authority. He sought the vindication of having a Supreme Court judge affirm this. Whether Mr. Abbass was correct in his view or whether the police and the physicians acted properly is not the question before this Court. Rather, it is whether, when Mr. Abbass sought to challenge what had been done to him, the applications judge should have heard the matter.

[54] Should Mr. Abbass have been given an opportunity to seek his release on the basis that he should not have been confined in the first place? The applications judge in effect said no. In this he committed a fundamental error. The courts must always be there for the vindication of the citizen with what he or she views as the wrongful exercise of authority. Mr. Abbass was denied his day in court. He should have had it.

Remedy
[55] The appeal is allowed and the decision of the applications judge declining to exercise his jurisdiction to hear the appellant’s habeas corpus application is set aside. The matter is remitted to the Trial Division for the continuation of the hearing.

[56] We would add that it is not appropriate for this Court to make a determination on the merits of the habeas corpus application as to whether the detention was in fact unlawful because the record to enable a proper determination in that regard may be incomplete. The decision to deal with the appropriateness of hearing the matter by way of habeas corpus as a preliminary matter diverted consideration from what was needed to make a determination on the merits.

[57] The appellant is awarded his costs in the Trial Division and on this appeal on a party-and-party basis calculated by reference to column 3 of the scale of costs.

 

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