The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

COURT of Appeal justices zeroed in on a “glaring defect” in process as they set aside the landmark Supreme Court decision that saw the dramatic return of Bahamas-born deportee Jean Rony Jean-Charles and caused ripple effects to the administration of the country’s immigration laws.

Appellate judges Sir Michael Barnett, Jon Isaacs, and Hartman Longley added there could be no finding of a constitutional breach as it related to Mr Jean-Charles’ detention and deportation, due to lack of certainty over his identity.

The justices stated any application for constitutional, or any other relief, should not have been entertained until that issue was resolved and brought as an entirely separate matter.

While his lawyers have pledged to fight his case at the Privy Council, Mr Jean-Charles told The Tribune yesterday he was distressed by the outcome, particularly the uncertainty over whether he will be allowed to remain in the country.

“I’m stressed right out right now,” he said. “If they win, does that mean they will try to ship me back? They got me stressed right out.”

The Crown sought to have Supreme Court judge Gregory Hilton’s decision concerning Mr Jean-Charles’ controversial deportation from The Bahamas to Haiti and subsequent return to this country overturned.

Yesterday, Attorney General Carl Bethel described the victory as important vindication of due process.

Mr Bethel told The Tribune Mr Jean-Charles would be given “reasonable time” to prove his identity, adding if he is unable to do so “the minister of immigration will have all the usual discretionary powers at his disposal.”

Meanwhile, Mr Jean-Charles’ attorney Fred Smith regretted that the Court of Appeal judgment did not address the far-reaching constitutional issues raised by the case.

“I note their focus on procedural issues,” Mr Smith said, “but the reality is we are dealing with human beings and such tabulated legalism should not transcend the vindication of constitutional rights as was done in the Supreme Court by Justice Hilton.

“We are studying the judgment and we are grateful to the court for having considered the matter, but it is likely that we will be appealing to the Privy Council (in London) as the constitutional issues that were raised at the Supreme Court should still be dealt with as they are of an overarching importance.”

The matter began as a habeas corpus application filed by Mr Jean-Charles’ lawyers with an affidavit made on his behalf by his sister, in a bid to have him released from the detention centre. However, Justice Hilton dismissed the writ of habeas corpus filed on November 29, 2017 for the government to produce Mr Jean-Charles, finding as he 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.

Justice Hilton ultimately found 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 constitutional rights.

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.

As in the initial appeal hearing in May, there was much debate over the discrepancy surrounding whether the individual immigration authorities said they deported — Jean Charles, and Mr Rony Jean-Charles – are one and the same.

Despite the “voluminous” amount of paper laid before the court, Sir Michael found the issues raised in the appeal could be reduced to two questions: whether Justice Hilton was correct to dismiss the habeas writ and the motion for contempt; and whether the trial judge was correct to grant constitutional relief.

Sir Michael stated Justice Hilton was correct to dismiss the habeas writ but moreover the writ should have never been issued. He said it was clear the affidavit filed by Mr Jean-Charles’ sister, Clotilde Charles, in support of the habeas claim, did not satisfy legal requirements, and raised the spectre of whether he was unable to submit an affidavit himself because he was no longer restrained or in the country.

“It is surprising therefore that the trial judge would have acted on that affidavit given its glaring defect and given the fact that it failed to state what the rule required,” the judge noted.

He also noted that Clotilde’s affidavit contained statements of fact that she could not confirm, noting this element was impermissible and illustrated why the rules require such an affidavit to be made directly by the applicant.

He went on to point out that correspondence from Mr Smith to the Department of Immigration on December 6, made it clear Mr Jean-Charles’ counsel knew he was no longer in detention at the time his application for leave was heard on December 7, 2017.

On the matter of constitutional relief, Sir Michael stated it was obviously unfair to the government to deal with the motion at a hearing fixed to deal with their return in the habeas matter - whether they requested an adjournment or not - due to the importance of the issue.

Sir Michael wrote: “The (government’s) return itself raised issue as to whether the applicant was the person who was detained by the state and released from detention prior to the commencement of the proceedings. The name was different and the date of birth was different.

“The judge fell in error when he proceeded with the application for constitutional relief and I would set aside all orders made by him on that application.”

Sir Michael noted the appellate ruling did not prevent Mr Jean-Charles from applying for constitutional relief, stating there may be more appropriate causes of action to obtain relief, such as an action in tort for wrongful arrest and false imprisonment. He maintained it would be inappropriate for him to weigh in on the propriety of those claims in this appeal.

For his part, Justice Isaacs noted there were nine grounds of appeal advanced by the appellants but only two needed to be considered to dispose of the appeal.

The first, that Justice Hilton was wrong to consider the application for constitutional redress without allowing government an opportunity to respond, thus depriving them of a fair hearing; and the second, that the affidavit filed by Mr Jean-Charles’ sister in support of his habeas corpus claim should have fallen away when the application was dismissed, and as such, Justice Hilton made a grave error by determining the constitutional claim without any affidavit evidence.

Justice Isaacs said he was satisfied the Supreme Court decision was unsustainable, adding while he referred to the individual as “Jean-Rony”, it was not an acceptance that the respondent is the same individual that had been detained.

“In the face of his (Justice Hilton’s) doubts as to whether Jean-Rony Jean-Charles was one and the same as Jean Charles, the judge erred in treating them as such ‘in the absence of definitive evidence’.”

As for Mr Smith’s argument that the dismissal of the habeas writ was invalid because the decision was with the Registry Department, Justice Isaacs said the argument is a “distinction without a difference”.

Justice Isaacs wrote: “It is not unknown for persons to be abducted by individuals posing as agents of the state, only for it to be discovered later that the individuals were merely dissemblers. That could have been the case in the present matter. Thus, it was important for the judge to be sure that Jean-Rony Jean Charles, applicant for habeas corpus, was Jean Charles, expelled individual.

“Nevertheless,” Justice Isaacs added, “the issue would only have arisen on a constitutional application separate and apart from the habeas corpus application.”

Justice Longley stated he would allow the appeal, dismiss the cross appeal, and set aside the Supreme Court decision for the reasons given by his colleagues.

Yesterday, Mr Bethel said: “The habeas corpus application was bound to fail as the court found…it was incorrect for the court to have allowed the matter to proceed with a tacked on constitutional motion which was, in my view, only tacked on in an attempt to revive a case that was bound to fail.

“The case was fatally flawed when even the trial judge could not say that he was certain that the person before the court was the person referred to in the birth certificate on which he relied.

“(Mr Jean-Charles) will be accorded a fair opportunity to prove that he is the person who is in the birth certificate.”