How do you give someone back 46 months of lost liberty?
The simple answer is you can’t.
But a precedent-setting decision from the Newfoundland and Labrador Court of Appeal last week is a human rights victory that could help protect some of the most vulnerable people in our province.
That victory was hard won.
The young man at the heart of the case is Z.B.
Now 22 years old, he grew up in foster care from age four.
On the brink of his 18th birthday, when he would have aged out of the child protection system — thereby losing the supports available to him — the provincial director of adults in need of protective intervention took action intending to protect Z.B., but Z.B. wound up being deprived of his basic rights instead.
On Feb. 5, 2016, an application was made under the Adult Protection Act to move Z.B. to a secure placement. There, he would be supervised while an investigation of his needs was carried out, as he was considered an adult potentially in need of protection.
The problem is, it was an ex parte application which didn’t stipulate an end date, as is required, and Z.B. was not given the documents, was not provided with legal rights or representation and was not present in court.
How do you give someone back 46 months of lost liberty?
On Feb. 8, 2016, he was moved to new accommodations. The court decision notes that from then on, he “had no independent access to the community and was required to be escorted by staff when permitted to be outside his placement.”
He was being detained.
It was not until late August 2017 that the director of adult protection actually filed the application to have Z.B. declared an adult in need of protection.
In December 2018, Z.B. legally challenged his detention in a habeas corpus hearing.
In January 2019, in an oral decision, a judge declared Z.B.’s detention legal. The written decision, which is not available, came out months later.
In July 2019 an appeal was filed and a trial was slated to start in November. Then, shortly before the appeal was to be heard, the application was withdrawn and Z.B. regained his freedom.
The Court of Appeal determined his case was worth considering even after the fact, since it involves how the law was applied and whether it was applied correctly.
As Justice G.D. Butler, “Z.B. is a member of a marginalized and disadvantaged sector of the community and the case raises issues of broad importance to the administration of justice.”
Joan Dawson, the lawyer who handled Z.B.’s appeal, said numerous procedural errors were made regarding his detainment.
“When he was detained on Feb. 8, 2016, he wasn’t provided with reasons, documents or copies of any court order,” Dawson said. “He also wasn’t advised of his right to speak with a lawyer. The consequence … was that he wasn’t aware of the court proceedings until 17 months later. Z.B. was not free to leave his premises unaccompanied until the application was withdrawn, which happened on Nov. 1, 2019, 46 months after…”
As Justice Butler noted, “the lack of procedural fairness in this instance is sufficient to render Z.B.’s detention unlawful.”
Dawson said she and her client see the Court of Appeal decision as a triumph.
“I spoke with Z. yesterday and he is very pleased with the decision. He sat through the entire habeas corpus hearing in December 2018 and grasped the legal principles…,” she said.
Dawson said the decision reaffirms that while “everyone is entitled to these legal rights and protections, persons with disabilities are sometimes not afforded those protections.”
Dawson says Z.B.’s only opportunity for any sort of redress is a civil suit.
As we have seen from the case of Andrew Abbass, who was unlawfully detained for six days in 2015, provincial authorities are not quick to apologize.
In this time of pandemic, with talk of “lockdowns” and curtailed behaviour, perhaps we should consider the plight of vulnerable people who depend on the system to protect them.
It didn’t work for Z.B., but his experience is already influencing how the Adult Protection Act will be interpreted in future.
It’s a tough way to make a better world.
Pam Frampton is The Telegram’s managing editor. Email [email protected]. Twitter: pam_frampton
