J. A. v The Chief of Police
| Jurisdiction | Dominica |
| Judge | Floyd J. |
| Judgment Date | 02 December 2022 |
| Neutral Citation | DM 2022 HC 13 |
| Docket Number | CLAIM NO: DOMHCV 0145 of 2022 |
| Court | High Court (Dominica) |
DM 2022 HC 13
CLAIM NO: DOMHCV 0145 of 2022
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CRIMINAL)
Ms. Cara Shillingford-Marsh, Counsel for the Applicant
Ms. Marie Louise Pierre-Louis, State Counsel for the Respondent
This is an application for bail. The applicant was born in the Republic of Haiti. He is 44 years of age with a date of birth of 17 th January, 1978. He is charged with sexual offences involving his daughter as the complainant. They are alleged to have taken place from January to December, 2021. The specific charges include unlawful intercourse with a person under age fourteen, indecent assault and incest. The applicant has been in custody for these offences since his arrest on 16 th May, 2022. Bail was denied in Magistrates' Court on 27 th May, 2022. Considering the age of the complainant in this case (she is not an adult), the fact that the charges are sexual in nature, and the complainant is related to the applicant, the applicant will be referred to by his initials only, so as not to provide any information that could identify the complainant.
Learned counsel for the applicant submits that he is entitled to bail. It should be granted as he has resided in the Commonwealth of Dominica for 19 years. He has ties to the community. He has been married for 8 years and has 4 children. The child complainant was from a previous relationship and is now a ward of the state. She does not live in the same residence as the applicant and his family. The applicant is a farmer who, with the assistance of his wife, sells his produce at market. He is a person of good character with no criminal record. There has been a delay in moving this case forward as no formal disclosure has been provided to counsel for the applicant by the Office of the Director of Public Prosecutions. No date for hearing has yet been set.
Several affidavits were filed in support of the application. Ericson Robinson has known the applicant for over 5 years, and although he does not offer himself as surety, he speaks of the good character of the applicant. G. A. is the wife of the applicant. She will also be referred to by her initials only, so as not to lead to the identification of the complainant. She confirms the family situation for the applicant and that the complainant no longer resides with them. Cherilus Paul is a businessman who has known the applicant for over 5 years. He owns a tavern and lives alone in Bath Estate. Mr. Paul offers to have the applicant reside with him, if he is released. Bert Colaire has known the applicant for over 7 years and offers himself as a surety. He and his wife own property and have substantial funds. Documentary exhibits are attached to confirm that.
Counsel for the applicant takes issue with what she describes as bias against the release of the applicant based upon his nationality. It is submitted at para 6 of the affidavit of the applicant, that in denying him bail, the learned Chief Magistrate referred to the applicant's status as a non-national, and intimated that it did not matter how long “ these people” stayed, they could still “ up and disappear.” Although the words were attributed to the court, no transcript was submitted to confirm that was indeed the statement. However, a document entitled Notes of Evidence in the Magistrates' Court District “E” (Criminal Jurisdiction), dated 27 th May, 2022, gave details under the heading, Court Decision. It indicated: “ Defendant is a Haitian national. Offence is of a serious nature. Bail denied as Defendant is a potential flight risk due to the possible penalty, if convicted, and because of his nationality.” (emphasis added)
Counsel for the applicant submits that such a basis to detain is unconstitutional and discriminatory. Counsel submitted that Haitian nationals in Dominica had recently been prohibited from applying for extensions of stay, including work permits, although that policy was no longer in place. Learned counsel for the respondent agreed that there had indeed been such a policy from 2020 – 2021. This was confirmed in the affidavit of Neon Charles of the Office for the Regularization of Foreign Nationals at the Division of Labour and Immigration. Mr. Charles confirmed that from 2 nd June 2020 – 5 th January 2021, the government of Dominica suspended the issuance of work permits for Haitian nationals. The subject is a consideration, as counsel for the respondent submitted that the applicant's work permit had expired, and without an ability to work here, the risk of flight was increased.
The court was provided with a series of work permits for the applicant from 2012 – 2018. In 2019, the applicant applied for citizenship in this country while being the holder of a valid work permit. A receipt for that was filed with the court. The affidavit of Mr. Charles confirmed that the applicant applied for citizenship by letter dated 21 st May 2019. Mr. Charles also confirmed that the application is still pending. From 2019 – 2020, the applicant held a produce seller's licence, and a copy of that document was submitted.
In 2021, the applicant paid the fee and applied for a work permit after the ban on such applications by Haitians was lifted. A receipt for that was filed with the court. No permit was issued, and counsel for the applicant submitted that the applicant's incarceration did not allow him to follow up on that request. The affidavit of Mr. Charles, however, indicates that although the application for a work permit was received on 3 rd June 2021, it was denied because the application did not contain proof of a return ticket to his country of origin, and the applicant was so advised by letter dated 25 th June 2021. It is curious that, despite a multitude of documents pertaining to the applicant's file with the Office for the Regularization of Foreign Nationals attached to the affidavit of Mr. Charles, the denial letter advising the applicant of this decision is not there. In a supplementary affidavit, the applicant stated that he never received a letter indicating that his 2021 work permit application had been denied. In the past, his work permits were issued without the necessity of showing a return ticket to Haiti. If released on bail, he would of course reapply with the requisite material.
While counsel for the applicant admits that, without a valid work permit, the applicant is unable to engage in any occupation for profit or reward, according to s. 27C of the Immigration and Passport Act 1, he will, nonetheless, be able to continue farming for the purpose of providing sustenance for himself and his family. His wife may also continue to sell the farm's produce at market. The applicant, it is submitted, has done all that he can to maintain his status in Dominica.
Counsel for the applicant relied upon the case of Jesper Qvist v The Commissioner of Police and The Superintendent of Prisons, 2 which involved a Danish citizen as the accused applicant for bail. The court in that case was also directed to the unreported decision of Malcolm Maduro v The Commissioner of Police, 3 wherein the learned Justice Hariprashad-Charles held that it was not enough to say that a person was from another jurisdiction. The test is whether the person will appear for the trial. In the Qvist case, the applicant was granted bail.
Counsel for the applicant also referred to the case of Quincy McEwan v The Attorney General of Guyana 4, in submitting that the constitution protects against
Learned counsel for the respondent submits that because the applicant is a non-national, the risk of absconding is high. This, despite his 19 years of residency in Dominica. Further, his residency has not been regularized, as his work permit has expired. The basis for the respondent's submission that the applicant should be detained, was that he is a flight risk. Reliance was had upon the affidavit filed from Cpl. Gemma Louis, the investigating officer in this case. It confirms that the complainant has been removed from the home of the applicant and is a ward of the state.
The police affidavit goes further. It refers, at para 8, to the “ porous” borders of Dominica and “ several matters…in respect of Haitian Nationals illegally migrating to the islands of Guadeloupe and Martinique.” The court is at a loss to find relevance in that statement. The affidavit goes on to refer to Immigration Department Inspector St. Rose, advising of a record this year of “ one illegal exit and two illegal entry (sic) by Haitian Nationals.” No affidavit is submitted from that Inspector, and the court again struggles to find relevance in such a statistic to this case. The affidavit continues, at para 9, referring to Insp. Anthony Lawrence, advising of the interception of “ 17 attempted illegal exits by Haitian Nationals on the northern side of the island.” Reference is then made to Cpl. Derrick Prince, advising of the interception of “ 21 attempted illegal exits by Haitian Nationals on the southern side of the island.” No affidavits are tendered from either of those officers and the court questions the relevancy of such information to this bail hearing. Finally, the affidavit refers not only to the serious nature of the charges, but boldly asserts, at para 16(i), that an inference should be drawn that the applicant “ will abscond based on the illegal migration patterns of Haitian Nationals in Dominica.” Such a contention is very troubling.
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