Christopher Shair v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Mr Justice Frank Seepersad
• Judgment Date: 11 February 2020
• Neutral Citation: TT 2020 HC 53
• Court: High Court (Trinidad and Tobago)
• Docket Number: Claim No. CV2019-03921
• Date: 11 February 2020

IN THE HIGH COURT OF JUSTICE

Before

The Honourable Mr Justice Frank Seepersad

Claim No. CV2019-03921

In the Matter of the Constitutiuon of the Republic of Trinidad and Tobago

and

In the Matter of an Application for Redress in Accordance with Section 14 of the Constitution by Christopher Shair Alleging that Section 4 and 5 of the Said Constitution have been and will be Contravened in Relation to him by Reason of the Action and/or Conduct of the State

Between

Christopher Shair

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Appearances:

1. Mr Wayne Sturge and Ms Alexia Romero, Attorneys-at-law for the Claimant;

2. Ms Michelle Benjamin and Ms Linda Khan, Attorneys-at-law for the Defendant.

DECISION

Introduction:

1 The Claimant, Christopher Shair, brought constitutional proceedings by way of fixed date claim form filed on September 27, 2019 and sought the following reliefs:

• a. A declaration that the continuing failure by the State to date, to list the Claimant's appeal which was dated November 24, 2016, in the circumstances of this case is unconstitutional and illegal and in breach of sections 4(a) and (b) and 5(2) of the Constitution of the Republic of Trinidad and Tobago;

• b. A declaration that the failure of the State, its organs and/or servants and/or agents in particular Her Worship Gillian Scotland acting in the capacity of Magistrate presiding over the First Magistrates' Court, Arima, who had the apparent and/or ostensible and/or expressed authority to act on behalf of the State to prepare the statement of reasons for sentence pursuant to Section 130B(1) of the Summary Courts Act Ch 4:20, and the Clerk of the Peace at the Arima Magistrates' Court to prepare the notes of evidence and forward same together with the said statement of reasons pursuant to Section 135(1) of the said Act has been a breach of the Claimant's fundamental rights under Section 4(a) and (b) and 5(2)(h) of the Constitution of Trinidad and Tobago;

• c. A declaration that the detention of the Claimant whilst remanded awaiting his appeal from June 25, 2019 to date is unconstitutional being in breach of his fundamental rights under Section 4(a) and (b) and Section 5(2)(h) of the Constitution of Trinidad and Tobago;

• d. A declaration that the continued failure to facilitate the listing of the Claimant's appeal insofar as it has deprived him of the opportunity to earn remission of his sentence and an early release is unfair and in breach of his fundamental rights;

• e. An order that Section 285 of the Prison Rules should be taken into consideration as it relates to the Claimant's conviction and sentence for possession of cocaine for the purposes of trafficking contrary to the Dangerous Drugs Act Ch 11:25;

• f. An order that the Commissioner of Prisons provide the Court with all records relative to the Claimant's conduct, progress and development whilst he has been imprisoned, pursuant to his conviction and sentence for possession of cocaine for the purposes of trafficking contrary to the Dangerous Drugs Act Ch 11:25;

• g. An order directing the Commissioner of Prisons to make such arrangements as may become necessary to give effect to any order made by this Honourable Court;

• h. An order that monetary compensation including aggravated damages and vindicatory damages be paid to the Claimant as a result of the above unconstitutional action for the damage and loss suffered by the Claimant;

• i. Costs;

• j. Interest;

• k. Any such further or other relief as the Honourable Court deems fit in the circumstances of the case.

Facts:

2 The Claimant was charged on November 22, 2016 with possession of cocaine for the purpose of trafficking and after pleading guilty to the offence, he was sentenced by Her Worship Gillian Scotland on November 24, 2016. The court imposed a $20,000 fine in default of which he was had to serve 3 years hard labour on the possession charge and on the trafficking charge to a term of 4 years imprisonment with hard labour.

3 The sentence was appealed and the Claimant made an unsuccessful application for bail pending appeal in May 2018. The Claimant also filed an application for a writ of habeas corpus ad subjiciendum which was also docketed before this Court as CV2019-03568.

4 On the 28 ^th December 2018 the magistrate who sentenced the Claimant was appointed as an acting Master of the Court. At the time of her appointment the reasons for her decision were not supplied.

5 The acting Master deposed to an affidavit and stated that she received the instant proceedings on the 2nd December 2019. She stated that she received the notes of evidence on the 4 ^th December 2019 and drew up reasons on the 5 ^th December 2019. These reasons were forwarded to the Court of Appeal.

6 The Claimant's appeal was listed and determined before the Court of Appeal on the 23 ^rd January 2020. The appeal was allowed and the sentence was varied to 3 years and 6 months from the date in which he was sentenced. On the said date the Claimant was released from prison.

Summary of the claimant's position

7 The Claimant relied on Section 130B of the Summary Courts Act Ch 4:20 (SCA) which requires a magistrate draw up and sign a statement of reasons for a delivered oral decision within 60 days of the filling of a notice of appeal. At the time he deposed to his affidavit no reasons were provided. In addition he argued that by virtue of Section 135 of the SCA, the Registrar of the High Court could only list an appeal before the Court of Appeal after the said reasons are received.

8 At the time the instant action was filed the Claimant had already served over three years of the four year sentence and was still awaiting a date for the appeal hearing to be listed.

9 The Claimant averred that his constitutional rights under Section 4 (a) and (b) and Section 5 of the Constitution were infringed.

10 In his supporting affidavit he said that he had an expectation that his appeal would have been heard within 9 months to one year from the date his appeal was lodged.

11 He also pointed to Rule 285 of the Prison Rules which provides for remission. The Claimant advanced that he had an entitlement under this Rule for an earlier date of release. However, he alleged that because he was treated as an “appellant” by the prison officials, he was not able to secure an early date of release. By letter dated July 5, 2019 he was informed by the Warrants Clerk that he would be released if he paid the $20,000 fine and withdrew the appeal.

12 Subsequently, by letter dated July 11, 2019 the Claimant was further informed by the Warrants Clerk that he did not have an earliest date of release because he was not serving a sentence. He was informed that if his appeal was withdrawn by July 16, 2019 and the $20,000 fine paid that his earliest date of discharge would then be June 7, 2020 and the final date of discharge would be November 23, 2020.

13 The Claimant also deposed to poor conditions which plagued him at the Golden Grove Prison. Due to his medical condition, he said he was not given the required food and diet which was recommended for persons suffering with HIV and that he suffered weight loss, distress and anxiety.

The issues

13 Before the Court for its determination are the following issues:

• a. Whether the Claimant had alternate avenues for relief and whether he delayed in bringing this constitutional motion;

• b. Whether the State can be liable for a failure of a magistrate to carry out his/her respective judicial functions;

• c. Whether the Claimant's constitutional rights were contravened as a result of the magistrate's failure to provide reasons within the specified time;

• d. Whether the Claimant's constitutional rights were contravened because of the delay in listing the Claimant's appeal;

• e. Whether the Claimant is entitled to remission under Rule 285 of the Prison Rules; and

• f. Whether the Claimant is entitled to monetary compensation.

Issue 1: Whether the Claimant had alternate avenues for relief and whether he delayed in bringing this constitutional motion.

14 The Board of the Privy Council in The Attorney General of Trinidad and Tobago v Siewchand Ramanoop Privy Council Appeal No. 13 of 2004 noted at paragraph 24 and 25 that:

“…In Harrikissoon the Board gave guidance on how this discretion should be exercised where a parallel remedy at common law or under statute is available to an applicant. Speaking in the context of judicial review as a parallel remedy, Lord Diplock warned against applications for constitutional relief being used as a general substitute for the normal procedures for invoking judicial control of administrative action. Permitting such use of applications for constitutional redress would diminish the value of the safeguard such applications are intended to have. Lord Diplock observed that an allegation of contravention of a human right or fundamental freedom does not of itself entitle an applicant to invoke the section 14 procedure…In other words, where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule, there must be some feature which at least arguably indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse or abuse of the Court process.” (Emphasis added).

15 In Felix Augustus Durity v. The Attorney General of Trinidad and Tobago Privy Council Appeal No. 52 of 2000, Lord Nicholls explained at paragraph 30 the approach to be adopted relative to delay and said as follows:

“At the forefront of the Constitution is a resounding declaration of fundamental human rights and freedoms. It is axiomatic that these rights and freedoms, expressly declared, are not to be cut down by other...