Higgs won't rule out notwithstanding clause for addiction treatment bill

Premier Blaine Higgs is not ruling out using the Constitution's notwithstanding clause as part of legislation that would allow authorities to force people with severe addiction into treatment against their will.

Higgs said Tuesday it is soon to say if the bill will need to invoke the clause to protect it from a challenge under a Charter of Rights and Freedoms guarantee against arbitrary detention.

"Well, it's early days. I would say, let's get it introduced and then have lots of discussion on that and the details," Higgs told reporters.

He said the Compassionate Intervention Act will be introduced in May. 

Section 9 of the Charter says everyone has "the right not to be arbitrarily detained or imprisoned."

Last week, Public Safety Minister Kris Austin said the legislation will include a process allowing medical professionals, family members and others to weigh in on whether someone with severe addiction needs to be forced into treatment.

"We're not looking to arbitrarily just drag people into some sort of incarceration," he said at the time.

Austin avoided questions last week about the Charter implications of the bill, but experts, including University of New Brunswick Saint John housing researcher Julia Woodhall-Melnik, predicted the courts would strike it down as unconstitutional.

Law professor Wayne MacKay of Dalhousie University's Schulich School of Law told Information Morning Moncton that it is "a big question mark" whether the legislation would survive a Charter challenge.

"In general it would be difficult, I think, to justify this kind of a restriction on rights," he said.

The notwithstanding clause allows a legislature to insulate a bill from a court challenge by declaring that some Charter sections, including the one on arbitrary detention, do not apply. 

When he spoke to reporters March 27, Austin said the bill would be introduced "within the next week" but on Tuesday the legislature held its last sitting day before May. 

A committee of MLAs will spend most of April approving departmental budget estimates, meaning no new bills can be introduced until next month.

Higgs described the legislation as necessary to address the homelessness crisis, noting that shelters are not equipped to help people recover from addiction. 

In his speech Tuesday, wrapping up debate on the provincial budget, he said this year's spending plan includes start-up costs for a new 50-bed residential rehabilitation facility.

Higgs said he was not worried about being able to find enough people to provide the services.

"It's early yet but we think we can find the resources to staff a facility like this," he said.

He also said it was "premature" to discuss what kind of security would be in place at the new facility, given some people will be there against their will.

In his state of the province speech in January, the premier said the government would double its capacity for adult addiction rehabilitation and was working on a new program with a four- to six-month treatment program.

The program would start with 50 new beds but would eventually treat 100 to 140 people each year, depending on the length of their program, he said then.