Court issues defence of political dissent

Three-judge appeal panel rules on case of man hospitalized involuntarily after tweets

ST. JOHN’S, N.L. — The Newfoundland and Labrador Court of Appeal has issued a ringing defence of political dissent, in the case of a man held involuntarily at a psychiatric hospital after he sent a series of angry tweets about a police shooting.

Andrew Abbass was detained and taken to the psychiatric unit at Western Memorial Hospital in Corner Brook, N.L., on April 7, 2015, two days after the fatal shooting of Don Dunphy in Mitchells Brook, N.L.

Abbass had expressed anger about the death on social media, prompting Royal Newfoundland Constabulary officers to go to his home. They took him to hospital, where two physicians “completed the necessary paperwork that resulted in his involuntary admission,” according to a appeal court decision.

Abbass, who has since been released, challenged his detention in provincial Supreme Court, claiming he was not suffering from a mental disorder and that the doctors’ certificates of involuntary admission did not cite grounds for his detention. But the judge declined jurisdiction, and dismissed his application.

The appeal court said the lower-court judge should not have declined jurisdiction.

“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,” said the three-judge court, which included Justice Malcolm Rowe, who has since joined the Supreme Court of Canada.

“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.”

In its ruling, the appeal court said the first psychiatric assessment of Abbass took 19 minutes before a doctor certified a certificate of involuntary admission. The certificate noted the patient showed some signs “consistent with paranoia,” and said he needed observation and assessment.

The second certificate was completed five minutes later, and noted Abbass had expressed anger about the shooting.

The doctor added: “In order to establish Mr. Andrew Abbass’ personal safety as well as public safety, further observation and assessment is necessary in a secure facility as the least restrictive measure at this time.”

The appeal court said both certificates appeared to rely on second-hand facts and made no attempt to identify the mental disorder in question.

It said the judge owed a duty to Abbass to look further into the circumstances of his case, which “appear to be extraordinary.”

“If anger about political events and words of defiance to authorities are dealt with as signs of mental illness … warranting involuntary committal, then our society is in a dangerous place,” it said.

“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?”

It added: “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.”

The decision did not elaborate on what Abbass allegedly said on Twitter.

An RNC constable shot Dunphy on Easter Sunday 2015. Const. Joe Smyth, a member of then-premier Paul Davis’s security detail, has testified he shot Dunphy, 58, once in the left chest and twice in the head in self defence after he aimed a rifle at him.

Smyth has said he went to Dunphy’s home to check out political comments Dunphy had made on Twitter.