N.B. doctor accused in COVID-19 outbreak to face charge under Emergency Measures Act

A doctor accused of being at the centre of the COVID-19 outbreak in the Campbellton region in May that claimed two lives, infected dozens and forced that northern part of New Brunswick back into the orange phase of recovery is facing a charge under the provincial Emergency Measures Act.

Dr. Jean Robert Ngola has been issued an appearance notice to attend Campbellton provincial court on Oct. 26 under Section 24(1)(b) of the act for alleged failure to comply with a direction, order or requirement, his lawyer, Joël Etienne, confirmed to CBC on Sunday.

It stems from an RCMP investigation following a complaint filed by the provincial government and the Vitalité Health Network on May 30 "related to an individual who may have violated the mandatory order under the current Emergency Measures Act by travelling outside of N.B., and not following the guidelines of self-isolating upon their return," RCMP spokesperson Cpl. Jullie Rogers-Marsh said in an emailed statement.

"Because no charges have been laid at this time, we are not able to confirm the name of the man," said Rogers-Marsh, identifying him only as a 50-year-old from Campbellton.

Ngola, who is also known as Jean Robert Ngola Monzinga and as Ngola Monzinga, previously identified himself to Radio-Canada's program La Matinale as the medical professional who travelled overnight to Quebec to retrieve his four-year-old daughter because her mother had to travel to Africa for a funeral.

After his return to Campbellton, a city of about 6,800, he went back to work at the Campbellton Regional Hospital the next day. He didn't self-isolate for 14 days, he said during the June 2 interview.

Ngola's trip was the week of May 10. The COVID-19 outbreak began May 21. A total of 41 people in the Campbellton region became infected, and two of them, who were in their 80s, died. 

His lawyer described the charge as "tantamount to a traffic ticket." Etienne stressed it is not a criminal charge under the Criminal Code of Canada but rather is punishable under the Provincial Offences Procedures Act.

The section carries a fine of between $240 and $10,200 for a first offence.

"In our opinion, wilfully, on what is believed to be at the 11th hour of the announcement of a provincial election, the authorities of New Brunswick are misleading the public and media about the nature of the outcome of the police investigation relating to Dr. Ngola," said Etienne.

"Is this being done as a political tactic ahead of the provincial election in order to try to promote and favour Premier [Blaine] Higgs?"

Plans to sue province, Vitalité

Etienne contends Ngola, who is from Congo, is "absolutely innocent of any wrongdoing. … At all times, he conducted himself correctly in fact and in law, with the utmost diligence."

His defence team, which now includes constitutional lawyer Christian Michaud, who has successfully argued before the Supreme Court of Canada and established victories in minority linguistic rights in New Brunswick, plans to initiate legal proceedings against the provincial government and Vitalité for what Etienne described as "misconduct."

"The singling out of a racialized medical worker by a premier and his government, the calling out to criminalize a racialized medical worker by a premier and his government, the scapegoating of a racialized medical worker by a premier and his government is tantamount to conduct unprecedented in North American history," he said. "No other jurisdiction has ever done what New Brunswick has done in these matters."

During a May 27 news conference, the premier never publicly named Ngola but blamed what was then a cluster of COVID-19 cases in the Campbellton region and a resurgence of the coronavirus in the province on an "irresponsible" medical professional in their 50s, who travelled to Quebec for personal reasons, "was not forthcoming about their reasons for travel upon returning to New Brunswick" and didn't self-isolate.

"If you ignore the rules, you put your family, your friends and your fellow New Brunswickers at risk," Higgs said at the time. "Today's case is evidence of that."

Information about the case was passed along to the RCMP to determine exactly what took place and whether charges were warranted, Higgs told reporters.

The province's chief medical officer of health, Dr. Jennifer Russell, had described the outbreak as "completely preventable."

Etienne also alleges Ngola's privacy was breached by someone within government. Within one hour of being advised by Public Health of his positive COVID-19 test results, Ngola's identity was "outed" on social media, along with his photo, he said.

"While almost a dozen investigators were combing tooth and nail trying to find blame against the doctor, the same province was not contact-tracing in the Ngola matter, and was not investigating the clear legal breaches of Dr. Ngola's privacy," said Etienne. "We will seek remedy.

"The time and manner of initiation is up to us, and the public will be informed."

'State of emergency' questioned

Michaud, who has represented the provincial government on several high-profile cases, said he's "very concerned" about what he considers to be breaches to Ngola's basic charter rights, such as the presumption of innocence, the right to remain silent and the right not to suffer any abuse of power.

But Michaud may also challenge the state of emergency legislation, he said, not just in Ngola's interest, but in the public's interest.

"I believe that there's a need for clarification of the law," he said.

"I'm trying to understand how to decipher these COVID rules. It's all over the map. Sorry, but I'm a lawyer and I don't get it.

"So do I blame the good doctor for not getting it and trying to get information, being told …'You know what to do. You're an essential service worker, like other essential service workers that go in and out, day in and out, from Quebec to New Brunswick?'"

In addition, Michaud questions whether the government can even say New Brunswick is in a "state of emergency," given that the level of COVID-19 has "basically … always been contained."

As of Monday, there are 15 active cases of the respiratory disease in the province — 12 in the Moncton region (health Zone 1) and three in the Fredericton region (health Zone 3).

New Brunswick has recorded 186 cases of COVID-19 since the pandemic began in mid-March.

"I understand that they want to take steps to protect the public interest, but they should not overreach," said Michaud.

Hired racism expert

Meanwhile, the defence has commissioned a "renowned North American expert in race relations and systemic racism" to investigate and report on "if, and whether racism and systemic racism from the premier, the premier's office, the Vitalité Health Network and the RCMP were key elements precipitating the abuses of power that resulted in singling out, shaming and scapegoating Dr. Ngola."

The defence did not provide the name of the expert, but the expert's findings will be published once completed, said Etienne.

"While sick at home, as a single parent of a four-year-old little girl, [Ngola] experienced the worst face of New Brunswick society. [Ngola] experienced, racism, violence, mercilessness, cruelty and was cast away by a premier, by an employer, by a government and was never treated as he should have been: as a colleague, a friend, a partner — even a fellow citizen," he said.

"We hold that the doggedness of pursuing provincial offence matters is a propagation of the hate that [Ngola] has so far faced with dignity and stoicism," Etienne said. 

"You cannot be in my profession, and not be a person who believes in hope and redemption — there is always a way back. It is never too late for New Brunswick officials to come to their senses and do the right thing — the ball is in their court."

Disputes he's 'patient zero'

Ngola, who is suspended and unable to work anywhere in New Brunswick, is now practising in Quebec, said Etienne.

He disputes being "patient zero" and has previously sought an apology from the premier.

Private investigators hired by his lawyer's firm found Ngola "could not have been the first patient" and that his trip to Quebec was not the source, according to a letter Etienne wrote to Higgs.

Ngola interacted with only a few people, all of whom subsequently tested negative for COVID-19, Etienne has said.

Based on the coronavirus's incubation period of up to two weeks, the senior private investigator concluded Ngola did not carry the virus across the border but rather was infected in New Brunswick by either a patient or a colleague.

Etienne has called the premier's "rushed judgment" about Ngola's actions and "disparaging comments" about him "grossly unfair."

Ngola has suffered a "barrage of threats … online racial attacks, local harassment and racial slurs" since Higgs announced the case and has had to seek police protection because he fears for his safety and that of his daughter, Etienne has said.

Higgs has stood by his comments.

On June 11, he said he's bound by privacy rules and limited in what he can say. 

"But I am quite comfortable in the position that I've taken, how I've spoken about it and the reality of how this situation developed. And if the facts are all on the table, I am sure that others will be clear as well."

On July 8, Higgs reiterated that his position hadn't changed.

"The comments I made previously, I stand behind those comments," he told reporters. "I don't intend to withdraw them."

The RCMP issued the notice to appear in court on July 8.