We, the undersigned members of the University of New Brunswick Faculty of Law, write to express in the strongest possible terms our disagreement and disappointment with the illegal and anti-democratic actions taken by the Legislative Assembly’s Speaker and Sergeant-at-Arms on the evening of Friday 25 September 2020.
That evening, a group of concerned people began a peaceful and lawful overnight protest on the grounds of the Legislature. Their protest was in response to the provincial government’s refusal to repeal a provision of the New Brunswick Medical Services Payment Act – regulation 84-20, Schedule 2a. 1 – that prohibits the funding of abortions outside hospitals.
The lawfulness of the regulation, which will effectively force the closure of Clinic 554 in Fredericton, is in serious question because it poses probable violations of the Charter of Rights and Freedoms and the Canada Health Act.
Acting on no apparent legal authority, the Sergeant-at-Arms directed security officers to disrupt and disband Friday evening’s peaceful protest. Security officers presented members of the protest with a notice dated the same day purporting to preclude “camping” on the Legislature’s grounds. The notice stated that the Legislative Assembly has a responsibility to provide a safe and secure environment for all Members of the Legislative Assembly, staff, and visitors to the Legislative Precinct. The notice further stated that the Sergeant-at-Arms was acting under the Speaker’s authority.
The notice given to members of the protest, which began after the close of the Legislative Assembly’s normal hours of business, failed to cite any legislative provision or regulation authorizing the Speaker’s directive.
We recognize that the Speaker bears an important responsibility to maintain the safety and integrity of the Legislative Assembly, and to meet that responsibility, the Speaker must exercise a certain degree of discretion.
But as New Brunswick’s own Justice Ivan Rand explained in the Supreme Court of Canada’s canonical decision in Roncarelli v. Duplessis, “there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator.” Discretion, Justice Rand continued, “necessarily implies good faith in discharging public duty.”
The unauthorized actions of the Speaker, the Sergeant-at-Arms, and the Legislative Assembly’s security officers in disrupting a peaceful protest mounted in support of reproductive rights and New Brunswick’s only trans-inclusive medical clinic fall well wide of this mark.
Indeed, their actions violate some of the most basic principles of the rule of law, such as that rules should apply to future, not past, events, and that rules should be transparent and understandable. Retroactive and unclear rules may be arbitrary and deny people any way of knowing what conduct is unlawful before they engage in it.
The retroactive rule used to break up Friday evening’s peaceful protest is an example of the Province’s repeated failure to respect the rule of law and democratic accountability when it comes to funding abortions performed outside hospitals.
Premier Higgs insists that the Province has received a legal opinion stating that the government’s inaction in respect of regulation 84-20, Schedule 2a. 1 is lawful. Having disclosed that much but no more, we call on Premier Higgs to make the Province’s legal opinion public so New Brunswickers can judge for themselves and hold the government accountable.
As Justice Rand further explained in Roncarelli v. Duplessis, “there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.”
As the Legislative Assembly returns to work this week, we urge its honourable Members to commit to upholding the highest standards of the rule of law and democracy in New Brunswick.
Specifically, we ask the Legislative Assembly to apologize to those who assembled on the Legislature’s grounds to lawfully and peacefully stand up for reproductive justice and transgender rights, and to invite the members of the Save Clinic 554 Campaign to make their case before you for the repeal of regulation 84-20, Schedule 2a. 1
We also call on Premier Higgs to fully and frankly state his government’s legal opinion and rationale for refusing to repeal this regressive regulation.
28 September 2020
Anne Warner La Forest