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, infecteddozens and forced that northern part of New Brunswickback into the orange phase ofrecoveryis facing a charge under the provincial Emergency Measures Act.

Dr. Jean Robert Ngolahas been issued an appearance noticeto 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, Jol Etienne, confirmed to CBC on Sunday.

It stems from an RCMP investigation following a complaint filed bythe provincialgovernment and the Vitalit 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 Monzingaand asNgolaMonzinga,previously identified himselfto Radio-Canada's programLa Matinaleas the medical professional who travelled overnight to Quebecto 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-isolatefor 14 days,hesaid during the June 2 interview.

Ngola's trip was the week of May 10. The COVID-19outbreak 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." Etiennestressedit is not a criminal charge under the Criminal Code of Canada but rather ispunishable under the Provincial Offences Procedures Act.

The section carries a fine of between $240 and$10,200for 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,Vitalit

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,whohas successfully argued before the Supreme Court of Canada and established victories in minority linguistic rights in New Brunswick,plans toinitiate legal proceedings against the provincial government and Vitalit 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 premiernever publicly named Ngola but blamed what was then acluster of COVID-19 cases in the Campbellton region and a resurgence of the coronavirus in the province on an "irresponsible" medical professionalin 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, Higgstold 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" onsocial 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 notcontact-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 bebreaches to Ngola'sbasic charter rights, such as the presumption of innocence, the right to remain silent andthe right not to suffer any abuse of power.

But Michaudmay 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 COVIDrules. It's all over the map. Sorry, but I'm a lawyer and Idon't get it.

"So do I blame the good doctor for not getting it and trying toget 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 are15 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 186cases of COVID-19since the pandemic began in mid-March.

"Iunderstand that they want to take steps to protect thepublic 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 Vitalit 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 theexpert'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 holdthat 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 issuspended and unable to work anywhere in New Brunswick, is now practising in Quebec, said Etienne.

Hedisputes 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 letterEtienne wrote to Higgs.

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

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

Etienne has calledthe 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 hashad 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, Higgsreiterated 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.