Right to political dissent upheld by Court of Appeal

Andrew Abbass was detained in psychiatric unit after voicing anger over Donald Dunphy’s shooting death


Published on April 18, 2017

A person’s right to express political dissent was upheld by the Newfoundland and Labrador Court of Appeal in a ruling released last Thursday.

While living in Corner Brook in April 2015, Happy Valley-Goose Bay native Andrew Abbass was picked up by Royal Newfoundland Constabulary officers who were investigating comments made on Twitter.

Abbass’s angry tweets regarding the death by Donald Dunphy in Mitchell’s Brook just a few days earlier landed him in the psychiatric unit at Western Memorial Hospital for a week under the province’s Mental Health Care and Treatment Act (MHCT).

Four days into his detainment, mental-health office lawyers from the provincial legal aid commission argued in Newfoundland Supreme Court that Abbass could not be held under the MHCT as he was not suffering from a mental illness and that evidence to detain him — two certificates of involuntary admission completed by hospital staff — did not provide grounds for such measures.

The judge in the case, Justice David Hurley, stated he did not have jurisdiction, and Abbass could instead appeal his detention under the act.

The provincial appeal court, however, ruled that while the MHCT Review Board could examine the medical nature of Abbass’s detainment, Hurley and the Supreme Court did have jurisdiction from a legal perspective.

“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,” reads the decision, which was handed down by a three-judge panel consisting of Chief Justice J.D. Green, Justice Charles W. White, and Justice Malcolme Rowe, who has since been appointed to the Supreme Court of Canada.

The appeal judges also ruled that “very little information” was supplied to either court that would explain the circumstances of his detention. Missing were a statement from the RNC, and Abbass’s full medical history and record assessments and treatment.

All that was presented were the certificates, which the appeals court contends do not go far enough. The first points out that Abbass exhibited some symptoms “consistent with paranoia” and both called for further observation and assessment.

Aside from asserting, as part of the pre-printed form, that he suffers from a “mental disorder,” the certificates make no attempt to identify the mental disorder in question.

The appeal court also suggested the certificates do not rely on physicians’ knowledge gained through observations, interaction or answers to questions that is in keeping with the act’s requirement for a factual assessment with which to form an opinion on a patient’s mental health.

The ruling goes on to state that if expressing an opinion regarding political events, even in an angry manner, is viewed as a sign of mental illness and warrants such actions as taken against Abbass, “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.”

In winning his appeal, the matter is being sent back to the trial division, where Abbass’s costs will be covered.