Smith to seek over $1 mil. for Jean-Charles
Attorney Fred Smith yesterday advised the Supreme Court that his client, Jean Rony Jean-Charles, should be awarded over $1 million in vindicatory damages after suffering unlawful imprisonment and expulsion from the country where he was born at the hands of the state.
During a stay application hearing before Supreme Court Justice Gregory Hilton, Loren Klein, who represents the government, referenced recent statements Smith made to The Nassau Guardian where the QC said he would seek “substantial damages”.
And as part of his submission for the judge to stay his ruling, handed down two weeks ago, Klein said if damages were awarded, and the Court of Appeal overturns the ruling, it might prove challenging to have those funds returned.
Following a habeas corpus application, filed by Smith, the judge determined that the Bahamas-born Jean-Charles, who had been detained last September and sent to Haiti last November, was unlawfully detained and deported.
On January 30, Hilton ordered the government to issue a travel document for Jean-Charles to return to The Bahamas.
Additionally the judge ordered that upon applying, Jean-Charles be provided status within 60 days.
The government complied with the court ruling, issued the travel document and Jean-Charles returned to The Bahamas.
After a brief stay at the detention center once again, he was released.
The government has appealed the judge’s ruling and is seeking a stay.
The stay application hearing, which had been delayed and adjourned to last Friday, was again put off until yesterday after both sides clashed on whether Jean-Charles could apply for status in The Bahamas ahead of the outcome at the appellate court.
Countering the government’s stay application yesterday, Smith argued that if the order is stayed this would prevent Jean-Charles from funds he is prima facie entitled to.
Smith said assessing damages does not prejudice the government or the appellate process.
He said the assessment should continue.
“Yes, in the press I said substantial damages, but I was also very careful not to intrude on your Lordship’s jurisdiction as he (Klein) read,” Smith said.
“I said I did not want to propose any figure because it would have been inappropriate for me to do so in anticipation of the assessment, but I confirm that my client will seek substantial damages, M’ Lord.”
Referencing two other cases whether the applicants were awarded between $300,000 and $400,000, Smith said, “Mr. Jean Rony Jean-Charles is entitled to over $1 million when it comes to the assessment.”
He continued, “Substantial damages are due to Mr. Jean Rony and hopefully if the assessment gives a substantial enough figure, the authorities will stop expelling people unlawfully.
“That is the point of punitive or vindicatory damages, trying to teach the respondents to behave according to law.”
Smith asked that the judge to dismiss the government’s stay application.
Presenting a summation of the government’s grounds for appeal and the basis of which the state has sought a stay of the judgment, Klein submitted that Jean-Charles would suffer no prejudice if the stay is granted.
He said the government has complied with the provision to return him to The Bahamas from Haiti at cost, and has agreed not to interfere, arrest or detain the applicant pending the Court of Appeal process.
However, Klein said there would be “inherent risks” to the state, which has “profound national, economic and social implications” if the stay was not granted.
Expounding on the grounds for appeal, Klein said there is a more than realistic prospect of success at the appellate court.
However, Smith submitted that Klein had only presented “technical and procedural details”, and had not sufficiently addressed the merit of the substantive judgment.
Klein continued that Jean-Charles had other recourse in common law that he had not exhausted before moving a constitutional motion.
He also argued that the basis of the judge’s order assumes the applicant has a right to some status in The Bahamas, calling Hilton’s judgment a “judicial overreach”.
Additionally, Klein referenced several Court of Appeal and Privy Council decisions, including the 1980s case of D’arcy Ryan versus the government, where the high court determined that Ryan, a belonger, was entitled to citizenship, but deferred the matter to the minister responsible, rather than direct the executive.
Klein said other causes exist for the executive to refuse status when making such determinations.
He also pointed out that in Jean-Charles’ case, the 35-year-old man did not apply for status between 18 and 19, the constitutionally-entitled period and has since never applied for status.
Smith has indicated that Jean-Charles will apply for citizenship soon.
He argued yesterday that Jean-Charles has a right to apply for citizenship, and has constitutional rights, regardless of his current status and whether he was in The Bahamas or not.
“How will he be able to find work?” Smith asked. “Will he be arrested again if he is working?
“To think that…the applicant has no legal entitlement is simply wrong.
“He has a legal entitlement by virtue of the court’s order.”
Smith acknowledged that the case sets a precedent for people in similar circumstances to seek constitutional redress.
He suggested that the basis of the government’s stay application suggests that it is concerned about a large bloc of people who may have been unlawfully deported coming forward to seek constitutional recourse.
But Smith said the court should not assist in denying others redress by staying the judgment, but cause the government to stop such breaches.
Hilton said he will consider the arguments and hand down a decision this Friday at 10 a.m