The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

CROWN attorneys yesterday called for the Court of Appeal to dismiss a Supreme Court judge’s landmark ruling that Bahamas-born Jean Rony Jean-Charles was unlawfully expelled from the Bahamas, with the alternative being a retrial on the facts in the Supreme Court.

Crown attorney Loren Klein submitted that Justice Gregory Hilton’s January 27 ruling was ultimately based on “flimsy” and “very dubious” evidence, which warranted it being set aside or alternatively reheard with “proper submissions and evidence”.

However, Mr Klein’s call for a retrial was contested by Mr Jean-Charles’ attorney Fred Smith, QC, who maintained a retrial would be an “exercise in futility”, and that the Crown can neither discover nor produce any new evidence in any event.

And concerning Mr Klein’s calls for the dismissal of Justice Hilton’s ruling, Mr Smith said the decision was a sound one based on the contents of the Crown’s own Return to a writ of habeas corpus on his client’s behalf, which Mr Smith said they “shackled” themselves to when they submitted it as evidence on their behalf.

“They can’t flee from the Return”, Mr Smith charged, adding the facts set out in the Crown’s response were “sufficient” to establish the constitutional breaches found by Justice Hilton.

In January, Justice Hilton found that Mr Jean-Charles was “unlawfully expelled” from the Bahamas after having been unlawfully detained from September 17, 2017 to November 24, 2017, in breach of his right guaranteed under Article 25 (1) of the Constitution.

Mr Jean-Charles was deported from the Bahamas to Haiti on November 24.

Justice Hilton further found Mr Jean-Charles has been deprived of his personal liberty, unlawfully arrested and detained/falsely imprisoned in breach of his rights guaranteed him under the Constitution.

He ordered the government to issue a travel document to Mr Jean-Charles to “allow and permit” him to travel from Haiti into the Bahamas, and that it pay the “reasonable cost” of Mr Jean-Charles’ journey “forthwith upon his return”.

Justice Hilton further ordered the minister and director of immigration should, no later than 60 days after Mr Jean-Charles’ return and upon his application, issue “such status” that would “permit him to remain in the Bahamas and to legally seek gainful employment.”

However, Justice Hilton dismissed the writ of habeas corpus Mr Smith had filed on November 29 for the government to produce Mr Jean-Charles, finding as Mr Jean-Charles was not in the custody of the state at the time the application for the writ was made, the order for the writ should not have been issued.

The Crown subsequently appealed Justice Hilton’s decision, but according to Mr Klein, did not contest the judge’s dismissal of the writ of habeas corpus. Rather, Mr Klein called for the appellate court to affirm Justice Hilton’s decision to dismiss Mr Smith’s habeas corpus application.

Mr Klein submitted that while Mr Jean-Charles’ constitutional motion was mainly supported by the contents of a sworn affidavit by his sister Clotilde Jean-Charles, her affidavit was solely in support of the habeas corpus application.

However, Mr Klein submitted Justice Hilton accepted Ms Jean-Charles’ affidavit for the purposes of the constitutional motion.

Nonetheless, Mr Klein contended that once the habeas corpus application fell away consequent to Justice Hilton dismissing it, any evidence it relied on should have fallen away as well, thus meaning the constitutional motion should likewise be dismissed.

Mr Klein also submitted the evidence in support of Mr Jean-Charles’ constitutional motion was “third-party” evidence and not entirely reliable, as he questioned the veracity of a lot of the claims contained therein.

He further stated Justice Hilton placed “a lot of stock” in Ms Jean-Charle’s claim that her brother never left the Bahamas, despite admissions by Mr Jean-Charles’ legal team that he was the beneficiary of several travel documents, with the reasonable inference being that he used those to travel.

Mr Klein submitted that Justice Hilton accepted “carte blanche” that Mr Jean-Charles never left the Bahamas, and said conversely, those claims and the claims made by his counsel should have been investigated.

In response, Mr Smith said there is no rule of law that mandates a constitutional application cannot be made in existing proceedings and must be made via separate proceedings, adding an application under Article 28 of the Constitution can be made “at any time”.

And even if the appellate court found that Ms Jean-Charles’ affidavit was inadmissible, Mr Smith said Justice Hilton’s decision would still not be “disturbed”, as the facts stated in the Crown’s response to the writ are enough to establish the breach of his client’s constitutional rights.

However, a true issue arose when the appellate judges could not seem to get past the discrepancy surrounding whether the individual immigration authorities said they deported— Jean Charles, and Jean Rony Jean-Charles, are one and the same.

And, as Sir Michael noted, that issue was apparently unsolved by Justice Hilton as evidenced in his ruling when he said he was concerned” about the “uncertainty” surrounding the issue, and that there can be “no conclusive answer or determination on the question”.

Justice Hilton ultimately said he would refer to the individual in question as “Jean-Rony Jean Charles AKA Jean Charles”, however, the appellate judges, Sir Michael in particular, noted that the confusion over the issue is still a “live” one that has not been resolved to date.

Sir Michael thus questioned how Justice Hilton could have come to a conclusion on the constitutional motion if he had no conclusive answer as to who Mr Jean-Charles was/is, adding that the answer to that question was “fundamental” to the resolution of the constitutional motion.

And when they presented the issue to Mr Smith, Sir Hartman asked him: “Does that not restrict us in where we go from here?”

Mr Smith, in response, submitted Justice Hilton was only concerned with the discrepancy with the two different names, thus suggesting that as evidenced in his ruling, the judge was satisfied that both names could be affixed to Mr Jean-Charles, and that the issue is essentially non-existent.

Mr Klein further charged Justice Hilton erred in law and fact in determining that Mr Jean-Charles’ constitutional rights had been breached, despite there being no evidence of those breaches, and failed to pay any regard to the exemptions provided under both Articles 19 and 25 concerning the removal of non-citizens from the Bahamas.

He submitted that Mr Jean-Charles is not a citizen of the Bahamas, and that while he has produced a birth certificate, that document is not proof of citizenship, but rather merely just a document that evidences the “circumstance of his birth” in this country.

Mr Klein further submitted Justice Hilton “erred” in making an order against the Crown for the payment of compensation for the alleged breaches of the Constitution, with there being “no basis” for the grant and justification of such an award.

He also submitted Justice Hilton “overreached” his “Constitutional authority” by ordering the government to issue travel documents to Mr Jean-Charles and to issue “such status” to allow him to remain in the country and seek employment.

Mr Klein said while the Crown has no issue with the court’s power to craft relief for constitutional redress, such power is not unlimited, as is made clear by a proviso precluding the court from granting relief “where adequate means of redress exist under any other law”.

Nonetheless, Mr Klein submitted that Justice Hilton realized he may have overstepped his judicial boundaries, as evidenced in his ruling to issue a partial stay of his initial ruling when he said the order would “necessarily be subject to any legitimate national security and policy concerns of the executive”.

In response however, Mr Smith said Justice Hilton’s power under Article 28 to craft relief to vindicate an applicant’s constitutional rights is “unrestricted”.

Mr Smith further contended the orders recognized the “standard of civility and humanity which undergirds the law”, and was appropriate in the “special and exceptional” circumstances of Mr Jean-Charles’ case.

The matter continues on June 22.