New Brunswick

Bill would give police, government sweeping power over citizens

The Higgs government’s plan to give itself, and police, sweeping new emergency powers is facing a wave of criticism, leading a senior official to invite opposition MLAs to propose changes to the bill.

Bill would give police authority to stop and investigate someone without reason

Public Safety Minister Carl Urquhart "signs" the declaration implementing the Emergency Measures Act in March. (Louis Léger's Facebook)

The Higgs government's plan to give itself, and police, sweeping new emergency powers is facing a wave of criticism, leading a senior official to invite opposition MLAs to propose changes to the bill.

The proposal would let the provincial cabinet suspend provincial laws behind closed doors, without an immediate vote in the legislature, and would also give police the authority to stop citizens and demand identification without any reasons.

A legal expert, a leading civil libertarian and a Saint John municipal councillor all quickly denounced the legislation Thursday morning.

"We're in some very unprecedented territory here," said Nicole O'Byrne, a law professor at the University of New Brunswick.

"This is such a dramatic overreach by the executive to infringe or override the powers of the legislative assembly."

Not good timing

Michael Bryant, the executive director of the Canadian Civil Liberties Association, said the expansion of police power is particularly ill-timed coming in the wake of widespread protests over police treatment of Black people, Indigenous people and other people of colour.

"It is a hell of a time for a legislature to be giving to police the racist power to card people," he said. "I'd be shocked if the legislature would pass this provision at this time."

David Hickey, a Saint John city councillor, called the idea "a non-starter. … I'll be doing everything in my power to ensure that [the Saint John Police Department] do not follow this regulation."

Liberal Leader Kevin Vickers said he has "huge concerns" with the legislation and his party MLAs will vote against the bill as currently written.

Goal is to clarify powers of enforcement officers, premier says 

Premier Blaine Higgs responded that the goal was merely to clarify the powers of provincial enforcement officers and he invited opposition parties to amend the bill during debate in the legislature. 

"I believe that it'll likely get changed significantly and that's fine," he said. "Let's get clarity on what we're doing." 

Premier Blaine Higgs said he invites opposition parties to amend the bill during debate in the legislature.  (Government of New Brunswick)

That clarity will be increasingly important as the province opens up this summer, including possibly to other Maritime provinces, he said.

"There's nothing other than saying 'these are the rules we're operating by,'" Higgs said.

Public Safety officials also responded quickly to the wave of criticism Thursday morning, telling reporters in a briefing that the amendments merely write into law a variety of measures and powers that the province had been using piecemeal since March.

It allows police to harass and gather information unlawfully by way of carding, a universally denounced practice. What is outrageous about this is the timing of it.- Michael Bryant, director of the Canadian Civil Liberties Association

Public Safety Minister Carl Urquhart declared a state of emergency March 19, giving him the power to make emergency orders to contain the spread of COVID-19. 

Under the emergency law, the declaration has to be renewed by the cabinet every two weeks.

Urquhart's bill, introduced Wednesday, will amend the emergency law itself. He said it will allow government to "act in a timely manner [and] enhance compliance with the act, and orders issued under the act."

Deputy Minister Mike Comeau said Urquhart's various emergency orders have already suspended or overridden some provincial laws.

The changes simply give him "some explicit authority" for those orders and "provide greater transparency on the extent of the minister's authority."

Existing law 'already gives extremely broad powers'

Urquhart's orders, which have been updated frequently, were used to restrict travel, require people to self-isolate if ordered by a doctor, order restaurants to close dining rooms and ban landlords from evicting tenants for non-payment of rent. 

Comeau cited those restrictions as examples of how the existing law "already gives extremely broad powers" to the minister. "Where that's going to happen, it's better to have legislative oversight."

He noted that under the amendments, any cabinet order suspending a provincial law must be upheld by the legislature within 30 days.

"We're comfortable that all of those [measures] were necessary for public safety and public health .. and we're comfortable they're all valid exercises of the minister's existing authority." 

Deputy Minister Mike Comeau said some emergency orders have already suspended or overridden some provincial laws. (CBC)

Another section of the bill would ensure people providing essential services during an emergency can't be held legally liable for any damages resulting from that.

The amendment on suspending legislation says cabinet can "suspend the operation of or amend or supersede" any section of a provincial law or municipal by-law. Fourteen provincial statutes are exempt from its application.

"Now that might be efficient," O'Byrne said. "However it contravenes the last 400 years of parliamentary democracy." 

The amendment on police officers and other peace officers, such as provincial enforcement officers, would give them the power to require "a person to stop in order to investigate whether or not there has been a violation" of the emergency order or act.

A Detroit protester holds a photo of George Floyd, who was killed in police custody in Minnesota, in a case that has launched nationwide protests and prompted criminal charges. (Sylvia Jarrus/Reuters)

The officer "may require the person to provide documentation as part of that investigation."

"It allows police to harass and gather information unlawfully by way of carding, a universally denounced practice," Bryant said. "What is outrageous about this is the timing of it."

Comeau said officials drafted the bill while "fully appreciating the potential for concern and people's sensitivity to broad policing powers" in the wake of protests sparked by the police killing of George Floyd.

A protest against police violence in Moncton where more than 350 people gathered to hear organizers speak and chant slogans like 'Black lives matter' and 'No justice, no peace.' (Guy LeBlanc/Radio-Canada)

He said the aim was to clarify the roles of enforcement officers screening people at the New Brunswick border.

He said most of them are conservation officers or vehicle inspection officers who have "stepped into roles that didn't exist to enforce measures that didn't exist" before the pandemic.

Comeau encouraged MLAs who believe the change is too broad to introduce amendments "that might bring this more clarity" during debate on the bill in the legislature.

Green Party Leader David Coon said his party will introduce an amendment to limit the application of the act to border officers.

People's Alliance Leader Kris Austin said he also considers the changes to be "government overreach" and his party may bring amendments as well.

Legal challenge likely if bill comes to law

If the bill passes, the suspension of provincial laws would last until the end of the state emergency, unless the legislature met within 30 days of the cabinet order to set a different expiration date. The police powers would be in place until the end of the emergency.

The changes to the Emergency Measures Act would remain in place after COVID-19 and would be available for governments to use in future emergencies, Comeau said.

Nicole O'Byrne, a law professor at the University of New Brunswick, says it's unwise for government to amend emergency powers in an emergency. (CBC)

O'Byrne says it's unwise for a government to amend emergency powers during an emergency.

"That leads to very, very bad decision-making, because you're not thinking about the bigger picture like the rule of law. You're just having knee-jerk reactions, and I think that is what is happening here." 

Bryant said his organization will likely launch a legal challenge to the expansion of police powers if the bill becomes law.

Section 8 of the Charter of Rights and Freedoms says that Canadians have "the right to be secure against unreasonable search or seizure."

About the Author

Jacques Poitras

Provincial Affairs reporter

Jacques Poitras has been CBC's provincial affairs reporter in New Brunswick since 2000. Raised in Moncton, he also produces the CBC political podcast Spin Reduxit.

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