Percival Sonson acting herein by his Next Friend Anastasie Sonson Claimant v Attorney General Garvey Hunte — PC 236 Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Mason J |
| Judgment Date | 22 August 2006 |
| Judgment citation (vLex) | [2006] ECSC J0822-3 |
| Court | High Court (Saint Lucia) |
| Docket Number | Claim No. SLUHCV 2005/0695 |
| Date | 22 August 2006 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Claim No. SLUHCV 2005/0695
The Claimant is a patient known to the Golden Hope Mental Hospital and on occasion is required to take certain medication in order to control his sometime aggressive behaviour.
Prior to 11th November 2003, the family of the Claimant have sought the assistance of the police in conveying the Claimant to the mental hospital whenever it appeared necessary that his aggressive behaviour needed to be controlled.
On 11th November 2003, at the request of the sister of the Claimant, the police took the Claimant into custody and lodged him at the Choiseul Police Station.
While in custody at the police station, an incident occurred which resulted in the Claimant being shot by the second Defendant. The Claimant was subsequently charged by the police with three (3) offences contrary to the Criminal Code of St. Lucia.
On or about 23rd June 2004, the Claimant filed a private law action against the second Defendant in the High Court which action was discontinued by notice filed on 26th October 2005.
However before this action was discontinued, the Claimant on 27th September 2005 filed a Constitutional Motion seeking various declarations and orders on the grounds that his fundamental rights and freedoms as guaranteed by the provisions of section 1 (a) and section 5 of the St. Lucia Constitution Order 1978 were violated by the Defendants on 11th November, 2003.
The Defendants have now made an application for an order to have the statement of case filed on 27th September 2005 struck out as disclosing no reasonable ground for bringing the claim.
The grounds of the application are:
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1) That the Claimant has failed to pursue alternative remedies as required by section 16 (2) of the Constitution.
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2) That section 1 (a) of the Constitution does not confer any rights which could be pursued by the Claimant.
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3) That the Claimant has not provided any evidence to support his case that his rights under section 5 of the Constitution were breached.
Under this head, it has to be determined whether the Claimant is justified in bringing an action for a constitutional motion or whether he is seeking to avoid the necessity of applying in the normal way for the appropriate judicial remedy for an action which involves no contravention of any human right or fundamental freedom:Harrikissoon v Attorney General (1979) 31 WIR 348 per Lord Diplock.
It should be said that the import of section 16 of the Constitution of St. Lucia was not denied by Counsel for either party, that is, that jurisdiction to hear and determine anapplication for redress for the breach of any of the fundamental rights and freedoms guaranteed by sections 2 to 15 inclusive has been conferred on the High Court.
That section provides:
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1. "If any person alleges that any of the provisions of sections 2 to 15 inclusive has been … Contravened in relation to him …….then, without prejudice to any other action with respect to the same matter which is lawfully available, that person …..may apply to the High Court for redress.
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2. The High Court shall have original jurisdiction
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(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section
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(b) to determine any question arising in the case of any person which is referred to it in pursuance of sub section (3)
and may make such declarations and orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of section 2 to 15 (inclusive):
Provided that the High Court may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other law.
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It is the contention of Counsel for the Defendants that when someone invokes the Constitution under section 16, they are asking the Court to immediately redress a wrong,that a constitutional motion is not a substitution for a private remedy nor is it meant to encourage persons to simply get their cases before the court quicker. It would be an abuse of the court process to allow persons to circumvent other available remedies and avenues by attempting to use the constitutional motion process for which it was not conceived.
Counsel referred to and relied on the case ofAttorney General of Grenada v Sellwyn Aban (1995) 48 W1R 111 which cited Lord Diplock in Harrikissoon v Attorney General of Trinidad and Tobago (supra) and concluded that if a person can obtain redress for wrongs committed against him under the ordinary law, the proper way of proceeding is to pursue that other remedy and not apply to the High Court under section 16 of the Constitution unless there is "…….some sort of emergency or urgency in his situation or something else whereby it can be said that the ordinary law suit would not provide adequate means of redress"
This, Counsel states, the Claimant has failed to do because the evidence in the Claimant's case discloses issues relating to personal injury which is a tort for which the common law provides adequate remedies and the Claimant has not shown that there are special circumstances why the Court should hear this application pursuant to section 16 of the Constitution.
It would seem therefore at first blush that the present action should properly be brought as a private law action for in the words of Lord Diplock inHarrikissoon (supra):
"The right to apply to the High Court under the Section 6 of the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. In an originating application to the High Court under section 6 (1), the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom".
However Counsel for the Claimant submits that the Court in exercising its discretion under section 16 should do so after consideration of all the relevant factors.
Counsel contends that the Claimant being a mental patient with no one to bring his action for him and his case not being frivolous, vexatious or a contrived invocation of the facility of constitutional redress ought not to be repelled but viewed as a bona fide resort to rights under the Constitution and not be discouraged:Harrikissoon (supra). The treatment meted out to the Claimant was unwarranted and left him a total cripple, bound to a wheelchair for the rest of his life and so this case is one which would make it appropriate for relief under the Constitution.
The Claimant in his amended Affidavit at paragraph 11 deposes through his next friend:
"Whilst the Claimant was in custody at the Choiseul Police Station on the 11th day of November 2003, the second Defendant was then acting in the course of his employment under the Government of Saint Lucia and as its servant or agent, used excessive force against the Claimant by shooting him in his chest with a service firearm belonging to the Government of Saint Lucia".
He continues at paragraph 12 (which paragraph will be commented on later):-
"The circumstances of the Claimant's shooting were that upon his arrival at the police station the Claimant refused to enter the holding cell because it was wet. Upon his refusal, Officer Garvey Hunte hit him and pushed him towards the cell. He hit the officer back, insisted that he would not enter the wet cell. The officer then rushed upstairs and came back with a pistol. The Claimant was not facing the officer at the time and he raised his left hand over the side of his face as the officer pointed the gun at him and shot him in the left side. The bullet entered the left side of the Claimant's chest (see medical report of Dr. Jeffers) and travelled to his right side where it is lodged between two ribs. As the bullet travelled the abdomen of the Claimant severe injury was sustained. Upon being shot, the Claimant fell to the floor of the station. Nearby, on the floor, was the padlock to the cell into which he had refused to enter, he threw the padlock at the officer before succumbing to the pain of his injury".
With respect to the question of the court's discretion, Counsel cited the case ofRodneil Theodore v The Attorney General Claim SLUHCV 02224/225 in which the point was raised by the Attorney General that the Claimant should have made a claim in judicial review rather than to have brought a Constitutional motion. Shanks J rejected that argument on the ground that there was no "other law" which provided adequate means of redress and that a claim for judicial review would come back to the same court and would raise precisely the same issues as had been already fully argued'.
It is my opinion, however, that Shanks J in his decision was fully embracing the principle regarding the exercise of the Court's discretion in hearing constitutional matters...
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