Bernard v Mayor, Aldermen, Councillors and Citizens of the City of Port of Spain

• Jurisdiction: Trinidad & Tobago
• Judge: Donaldson-Honeywell, J.
• Judgment Date: 06 October 2016
• Neutral Citation: TT 2016 HC 216
• Docket Number: CV 2016-00764
• Court: High Court (Trinidad and Tobago)
• Date: 06 October 2016

High Court

Donaldson-Honeywell, J.

CV 2016-00764

Bernard

and

Mayor, Aldermen, Councillors and Citizens of the City of Port of Spain

Appearances:

Mr. Christopher Hamel Smith SC, Mr. Imran Ali and Ms Krystal Richardson, Attorneys-at-Law for the applicant

Mr. Eduardo Martinez, Attorney-at-Law for the respondent

Civil practice and procedure - Application for leave to apply for judicial review of the decision of the respondent to place padlocks on the gate around Tamarind Square with the intention or objective of excluding members of the public and more particularly the applicant and other socially displaced persons from Tamarind Square without there being any reasonable alternative location available — Whether the application for judicial review was the proper recourse to be taken by the applicant — Whether there was some alternate remedy — Whether there had been delay in bringing the application — Whether that delay was sufficient to defeat the application — Whether there had been a decision made by the respondent that was capable of review — Whether the applicant had brought sufficient evidence to show that he was a socially displaced person with no proper alternative accommodation — Whether leave should have been granted to apply for judicial review based upon the substantive grounds of the application.

Donaldson-Honeywell, J.

I. INTRODUCTION

1 The applicant, Hugh Bernard, describes himself as a person of no fixed abode other than Tamarind Square, Port of Spain. He has based his Claim on his alleged homelessness and he raises for consideration herein the important concerns of socially displaced persons regarding the protection of their human rights as guaranteed under the Constitution. This novel claim can be seen as a timely intervention since the Court takes judicial notice of the acute crisis of socially displaced persons occupying the pavements and other public places with seemingly no place to call home.

2 It is not a new phenomenon. However, for decades communities such as the City of Port of Spain have been increasingly faced with the problem of homelessness. Street dwelling is a concern not only for those unfortunate persons who, whether by choice or having suffered dire life experiences, seek to stake a claim to entitlement to reside in public places but also presents a threat to other members of the public whose freedom of movement, safety and enjoyment of public places may be adversely affected by such occupation.

3 These concerns are not unique to Trinidad and Tobago and there is some precedent for matters having been taken before Courts in other jurisdictions to seek protection of the rights of homeless persons, not necessarily to reside in public places, but to have access to adequate shelter. The matter was considered at the 31st session of the Human Rights Council of the United Nations in March 2016, in preparation for which countries and Organizations were invited to submit reports on the issue. Those submitting reports included Trinidad and Tobago, Malta, Canada, Ghana, The United States of America and Organizations from India, Ireland and the United Kingdom. In overall summary it was noted as follows:

“Homelessness has emerged as a global human rights crisis even in States where there are adequate resources to address it. It has, however, been largely insulated from human rights accountability and rarely addressed as a human rights violation requiring positive measures to eliminate and to prevent its recurrence. While strategies to address homelessness have become more prevalent in recent years, most have failed to address homelessness as a human rights violation and few have provided for effective monitoring, enforcement or remedies. [Homelessness and the Right to Housing – Downloaded from United Nations Human Rights Office of the High Commissioner http://www.ohchr.org/EN/Issues/Housing/Pages/Homelessnessandhumanrights.aspx on September 10, 2016]”

So there is continued need to address the problem and seek workable solutions.

4 On 15 March, 2016 the applicant filed an application for leave to apply for judicial review in accordance with S.6 Judicial Review Act, Chap. 7:08 (“JRA”). The applicant seeks to review:

• a. The decision of the respondent to place padlocks on the gate around Tamarind Square with the intention or objective of excluding members of the public, and more particularly the applicant and other socially displaced persons, from Tamarind Square, without there being any reasonable alternative location available to the applicant and other socially displaced persons; and/or

• b. The decision of the respondent to exclude members of the public, and more particularly the applicant and other socially displaced persons, from Tamarind Square, without there being any reasonable alternative available to the applicant and other socially displaced persons.

5 The applicant seeks relief in the following forms:

• a. An Order requiring the respondent to leave the gates of Tamarind Square unlocked so as to allow the applicant and other socially displaced persons access to Tamarind Square as a place of refuge until a viable alternative is available to them;

• b. An Order requiring the respondent to provide tents and access to portable toilets in Tamarind Square for the protection of the homeless until a viable alternative is available; and

• c. Damages.

II. BACKGROUND FACTS

6 The respondent is a creature of statute established by the Municipal Corporations Act, Chap. 25:04 (“MCA”) and is responsible for the government of the Municipality of Port of Spain and the suppression of nuisances (S.221 MCA).

7 The applicant is a displaced/homeless person who having been deported from the United States of America in 1993 has been living on the streets and using the public spaces as a place to rest at night. He claims to be unemployed but says he supports himself by trading in scrap metal, cigarettes and occasionally doing ad hoc physical labour. The income he earns is not sufficient he says to afford any accommodation for himself other than public spaces. According to the applicant there is no viable alternative for homeless persons due to the poor conditions of the Centre for Socially Displaced Persons (“CSDP”) at the Riverside Car Park. The CSDP is a Non-Governmental Organisation (“NGO”) set up in 1991 by the St. Vincent de Paul Organisation, another NGO. The applicant avers that there was an agreement between the government and the CSDP that the government would pay the CSDP a subvention for the service as a temporary measure of housing “the most vulnerable citizens” at Riverside Car Park.

8 The applicant says he tried to set up residence at the CSDP facility some 12 years ago but left due to poor conditions. He outlines the conditions experienced at the CSDP as follows:

• a. The CSDP was initially a car park facility and was intended as a temporary measure. As a result, the ceilings are low and there is poor ventilation.

• b. The CSDP also houses all categories of homeless persons including the medically ill, mentally challenged, drug addicts and deportees and there are no proper facilities to regulate the interactions among these groups. Security officers at the venue were also abusive according to the applicant.

• c. The washroom facilities were disgusting and, in the applicant's opinion, not conducive to human health. The mattresses are also bug infested.

9 The applicant states that as a result of these conditions he began spending nights at Woodford Square. He states that he could sleep there without fear of harassment and unhealthy conditions. Two years ago however, the Port of Spain City Corporation began locking the gates of that Square at night and the applicant relocated to Tamarind Square. There he says he and other socially displaced persons found the only other viable alternative to seek refuge with “some small degree of personal security at night”.

10 After spending his nights at Tamarind Square for approximately two years, the applicant noted that between December 2015 and January 2016 the City Corporation began to erect a fence around its perimeter. From on or around the end of January 2016 he says they locked four of the five gates around the square at night. Although there was still one gate left open the applicant's complaint is against what he saw as the decision to lock all the gates to the park, blocking access to the applicant at night. Before commencing the instant claim the applicant's Attorneys, with input from one of his supporting witnesses Mr. Anthony Salloum by letter dated December 16, 2015 wrote to the Mayor of Port of Spain who heads the respondent seeking to have the gates to Tamarind Square left open. The letter also requested that tents be placed in the square for the use of the applicant and other homeless persons. Finally the Mayor was asked to hold a meeting with the Attorneys to discuss a process to implement an appropriate alternative to Tamarind Square.

11 There was no response to the said letter so the applicant seeks by this Claim filed three months later, on March 15, 2016 to have the alleged decision to close all the gates reviewed on the grounds that this decision is:

• a. Contrary to the Constitutional Rights of the applicant, in particular the right to freedom of movement and the right to life, liberty and security of the person;

• b. Contrary to the legitimate expectation of the applicant and other socially displaced persons to be able to access Tamarind Square;

• c. Ultra vires the powers of the respondent; and/or

• d. Irrational and unreasonable due to the fact that it disregards the needs of the socially displaced persons who seek refuge there without having had proper consultations with these persons as stakeholders.

III. ISSUES

12 The issues in the present case are as follows:

• a. Whether the application for judicial review is the proper recourse to be...