Donald Duane O'Connor v The Commissioner of Police
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Robin N. Mohammed |
| Judgment Date | 15 November 2022 |
| Neutral Citation | TT 2022 HC 259 |
| Docket Number | CLAIM NO: CV2020-02068 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2022 |
In the Matter of an Application for Leave to Apply for Judicial Review Pursuant to Part 56.3 of the Civil Proceedings Rules 1998 as Amended and Pursuant to Section 6(1) of the Judicial Review Act, Chapter 7:08
and
In the Matter of an Application by Duane O'Connor for Administrative Orders Pursuant to CPR Part 56.7 and Under Section 14(1) of the Constitution of the Republic of Trinidad and Tobago for Contravention of His Rights
and
TT 2022 HC 259
the Honourable Mr. Justice Robin N. Mohammed
CLAIM NO: CV2020-02068
IN THE HIGH COURT OF JUSTICE
Mr Anand Ramlogan SC leading Ms Renuka Rambhajan, Ms Jayanti R Lutchmedial and Mr Ganesh Saroop and instructed by Ms Alana Rambaran for the Claimant
Mr Reginald T.A Armour SC leading Ms Vanessa Gopaul and Mr Rishi Dass and instructed by Ms Makira Mendez for the First Defendant
Mr Russell Martineau SC leading Ms Keisha Prosper and instructed by Ms Michelle Benjamin and Ms Rachel Weeks for the Second Defendant
I consider this matter to be of significant public importance and fairly unique in nature.
By his Claim, the Claimant seeks to challenge the decision of the Commissioner of Police (the “First Defendant”) to institute disciplinary proceedings and charge him under Regulation 139 of the Police Service Regulations (‘PSR’) 2017, as a result of his offering of himself for screening to be a candidate for the People's National Movement (PNM) party in the Local Government Elections, held on 2 December 2019. Constitutional redress is also sought by the Claimant on the basis that the institution of disciplinary proceedings and the charge has breached his rights under
On 22 July 2020, the Claimant filed an ex parte application supported by affidavit for leave to apply for judicial review of the decision of the First Defendant. The application was determined in chambers without a hearing pursuant to Rule 56.4(2) of the Civil Proceedings Rules 1998 (CPR) and leave was granted to the Claimant by Order dated 27 July 2020.
Pursuant to the order granting leave, the Claimant filed his Fixed Date Claim Form seeking the following reliefs:
As against the First Defendant:
i. That leave be and is hereby granted to the Claimant to read and use the affidavit filed in support of his application for leave in support of the fixed date claim.
ii. An order of certiorari to remove into this Honourable Court and quash the decision of the Defendant to institute disciplinary proceedings and charge the Claimant.
iii. A declaration that the institution of disciplinary proceedings and the charging of the Claimant is irrational, unreasonable, and illegal.
As against the Second Defendant:
iv. A declaration that the institution of disciplinary proceedings and the charging of the Claimant has breached his rights under Section 4 (e) and (i) of the Constitution.
v. An order that the Claimant is entitled to an award of damages, including vindicatory damages, for the breach of his constitutional rights.
As against both the First Defendant and the Second Defendant:
vi. Costs to be assessed.
In response thereto, the affidavit of Ag ASP Erwin Joachim was filed on behalf of the First Defendant and on behalf of the Second Defendant, the affidavit of Andella Ramroop (then filing attorney for the Second Defendant) was filed.
By Notice of Application dated 12 January 2021, the Claimant objected to the admissibility of the evidence of Andella Ramroop. It was argued that Ms Ramroop was the instructing attorney on record and was not a witness of fact or an expert to depose to the facts on the substantive matter. Further, she was in breach of Rule 35, Part A, Third Schedule of the Legal Profession Act Chap. 90:03 which prohibits an attorney-at-law from appearing as a witness for his own client. This Application was contested by the Second Defendant on the basis that Ms Ramroop was no longer on record nor in the employ of the Attorney General's Department. The Second Defendant also sought the permission of the Court to file the affidavit of Corporal David Durity which was granted on 16 March 2021.
On 20 April 2021, this Court delivered a written ruling on the Claimant's Notice of Application wherein it was determined that the affidavit of Ms Ramroop was improper and accordingly it was struck out in its entirety.
Affidavits in reply to the affidavit of Cpl Durity were filed by the Claimant on 26 April 2021 and 3 May 2021.
Thereafter, closing submissions were filed by all the parties and oral submissions were heard on 13 October 2021.
The Claimant is a Police officer with eleven years of experience. Prior to the subject disciplinary proceedings, he was attached to the Community Policing Unit Secretariat in the capacity of Liaison Officer with responsibilities as Police Youth Club Leader in the Patna/Flat River Estate Police Youth Club.
The Claimant is also a Calypsonian. He is well-known in the public sphere, having won the Calypso Monarch title in 2012 and qualified for the finals on six (6) occasions.
The Claimant decided to offer himself as a Candidate for the Local Government Elections fixed for December 2, 2019. Accordingly, he applied to be screened for candidacy by the People's National Movement (PNM) to contest the St. Ann's River South seat.
The Claimant was ultimately unsuccessful in his bid and was not selected to contest the seat. This incidence attracted the attention of the public and a media release was published by the Trinidad Guardian Newspaper.
On April 29, 2020, the Claimant received a memorandum from Sgt Durity Regimental Number 13432 warning him of an allegation of “Partisanship” contrary to Regulation 139 of the PSR. He was asked to submit an explanation in writing within seven (7) days of receipt of the notice.
Subsequently, he received a memorandum dated 17 June 2020 wherein he was charged for “Partisanship” contrary to Regulation 139 and was given notice that the matter was fixed for hearing on 2 July 2020.
Regulation 139 states,
“139. An officer shall not make any public expression of political and sectarian opinions, and shall bear himself with strict impartiality in all matters.”
The particulars of the charge were as follows:
“Partisanship. That is to say, you the said No.18005 Police Constable O'Connor did make a public expression of political opinion when you a police officer presented yourself as a nominee to be screened for selection as a potential candidate to represent the Peoples National Movement a political party, at the Local Government Election 2019 and by so doing did not bear yourself with strict impartiality in all matters.”
Also, by letter dated 17 June 2020 from the Commissioner of Police, the Claimant was suspended from duty pending the determination of the allegation preferred against him. To date his suspension remains in effect, as the hearing of the disciplinary tribunal has been adjourned pending the outcome of this matter.
It is the Claimant's evidence that he has never disclosed his political affiliations as he sees this as a private matter. Prior to his screening to be considered as a candidate for the election, he enquired from party officials familiar with the screening process whether the process was confidential and he was assured that it was a private and confidential party matter.
Moreover, the Claimant trusted that his nomination would remain confidential as the assurance was given that media would not be informed of his nomination. While media was present on the day of the Screening, he was removed from the room before the media came in ensuring that his application would remain confidential.
The Claimant asserted that he was also aware that if he was successful in the Screening process, he would have to resign his position as a Police Officer as he would be required to campaign. It was his intent, had he been successful, to do so. However, when he was informed that he was not selected for the position, he did not consider resigning from the Trinidad and Tobago Police Service.
Notwithstanding the charge against him, it is the Claimant's position that he did not at any time publicly show support or partisanship to any political party nor make any statements or expressions of such. He denies showing any form of political bias and he stated that he has always remained professional and responsible in the performance of his duties without fear or favour, malice or ill-will.
He also believes that his constitutional right to join a political party, express political views and a general right of thought and expression guaranteed under Section 4 (e) and (i) of the Constitution of Trinidad and Tobago has been breached.
It is upon this evidence that the Claimant seeks constitutional relief on the basis that the interpretation and application of Regulation 139 in relation to him is unlawful and constitutes an infringement on his constitutional rights given the circumstances that prompted the preferring of disciplinary charges. He considers the decision unlawful for the following reasons:
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a) The regulation imposes a restriction on the exercise of the protected right to freedom of political expression;
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b) The established principles of constitutional interpretation mandate a liberal and expansive approach to the interpretation of the fundamental rights and conversely, a narrow and confined interpretation to any law that seeks to restrict or interfere with such rights;
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c) The accent is on the word “public” and on the facts, there was no public expression of political views as contemplated and forbidden by...
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