George Flowers v Director of Public Prosecutions and Others

• Jurisdiction: Jamaica
• Judge: Mcdonald J.,Thompson-James J.,Laing, J
• Judgment Date: 30 June 2016
• Neutral Citation: [2016] JMFC Full 3
• Docket Number: CLAIM NO. 2014 HCV 04232
• Court: Supreme Court (Jamaica)
• Date: 30 June 2016

[2016]JMFC Full —

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Before:

The Hon. Ms. Justice Christine McDonald

The Hon. Mrs. Justice Sarah Thompson-James

The Hon. Mr. Justice Kissock Laing

CLAIM NO. 2014 HCV 04232

IN THE MATTER OF an application by GEORGE FLOWERS for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER OF a request for the extradition of GEORGE FLOWERS made by the GOVERNMENT OF CANADA

AND

IN THE MATTER OF the EXTRADITION ACT

Between

George Flowers

Applicant

and

The Director of Public Prosecutions for and on Behalf of the Government of Canada

1 ^nd Respondent

And

The Commissioner of Correctional Services

2 ^nd Respondent

And

The Attorney General of Jamaica

3 ^rd Respondent

Mr. Don Foote for the Applicant

Mr. Jeremy Taylor and Ms. Annette Austin instructed by The Director of Public Prosecutions for the — ^st Respondent

Ms. Althea Jarrett instructed by the Director of State Proceedings for the — ^nd Respondent

Extradition — Writ of habeas corpus — Meaning of ‘Extradition Offence’— Principle of dual criminality — Whether conduct test or offence test to be applied — Whether the transmission of HIV virus is capable of amounting to a crime in Jamaica — whether putting an individual at risk of HIV is capable of amounting to a crime in Jamaica — Infliction of grievous bodily harm — sections 20 and 22 of the Offences Against the Persons Act — sections 5, 6, 10, 11 of Extradition Act — Aggravated Sexual Assault contrary to section 273 of the Criminal Code of Canada

IN OPEN COURT

Mcdonald J.

1 I have read the draft judgments of my learned colleagues Mrs. Justice Sarah Thompson-James and Mr. Justice Kissock Laing and I agree with their reasons and conclusions.

Thompson-James J.

Introduction

2 This is an application by George Flowers for a Writ of Habeas Corpus pursuant to section 11 of the Extradition Act of Jamaica, following his committal to custody August 22, 2015 by a Resident Magistrate for the parish of St. Andrew, pursuant to Section 10(5) of the Extradition Act. The extradition is being sought by the government of Canada for the applicant to face charges of aggravated sexual assault in respect of acts alleged to have been committed by him in Canada against four (4) different complainants.

Background

The Extradition Request

3 A warrant was issued in Canada for the arrest of the Applicant for twelve (12) counts of aggravated sexual assault alleged to have been committed in Canada against four (4) different complainants, including his wife. The allegations being that the Applicant engaged in unprotected sexual intercourse with these women knowing that he was HIV positive and without informing them of his HIV positive status. Three (3) of the four (4) complainants subsequently contracted HIV, and all complainants swore to affidavits that they would not have had sexual intercourse with him had they known he was HIV positive. March 21, 2013, the government of Canada sought from the government of Jamaica, extradition of the Applicant who had since fled to Jamaica, in order that he be returned to Canada to face the charges against him.

4 Initially, extradition was sought in respect of (12) counts of aggravated sexual assault contrary to section 273(1) and (2)(b) of the Criminal Code of Canada (Revised Statutes of Canada) 1985 as amended (hereinafter referred to as “the Criminal Code”) , the details of which are set out in the affidavit of Ms. Janet Gallin, Attorney-at-Law for the Ministry of the Attorney General for the province of Ontario, Canada, who provided evidence in support of the extradition request.

5 The Minister of Justice, the Honourable Mr. Mark Golding, June 3, 2013, issued Authority to Proceed in respect of three (3) counts. The Government of Canada subsequently submitted a supplemental extradition request for a single count of aggravated sexual assault against Mr. Flowers, to which the Minister issued Authority to proceed September 9, 2013. An extradition warrant was issued for the arrest of the Applicant. The Applicant was arrested, and Committal Proceedings were conducted before Resident Magistrate for the parish of St. Andrew, Simone Wolfe Reece, who, on August 22, 2015, ordered that the Applicant be committed to custody pending his extradition to Canada. The Resident Magistrate advised the Applicant of his right to challenge the order of committal and to apply for his release by way of a Habeas Corpus Application, of which he now avails himself.

The Habeas Corpus Application

6 September 26, 2014, the Applicant filed this application by way of Fixed Date Claim Form, seeking a writ of Habeas Corpus pursuant to section 11 of the Extradition Act.

7 The initial Application relied on several grounds, however, at the hearing January 12, 2016 his Attorney-at-Law, Mr. Don Foote, relied on the sole ground that “there is no corresponding offence in Jamaica to the offence of aggravated sexual assault for which the Applicant's extradition is being sought”.

LAW & ANALYSIS

The Extradition Act and the Nature of Extradition

8 The nature of the extradition process and the role of the courts therein, was aptly outlined by my learned brother Sykes J in Martin Giguere v Government of the United States of America and the Commissioner of Correctional Services [2012] JMSC Full —, at paragraphs 12 and 13 as follows:

“[12] As is well known, extradition is a primarily political process where the executive of one state agrees with the executive of another state that each will surrender to the other, persons within its borders who are sought by the other state. The courts are interposed to answer the purely legal questions and thereafter, if the courts decide that extradition is legally permissible in any given case, then it is for the executive branch of government of the requested state to decide whether the person will be surrendered to the requesting state.

13 However, the fact that it is ultimately a political decision does not mean that the role of the courts is that of a rubber stamp. McLachlin CJ of the Canadian Supreme Court in United States of America v Ferras; United States of America v Latty268 DLR (4th) 1, held that extradition law requires that the basic demands of justice be met in these types of proceedings. Her Ladyship insisted that a person cannot be sent away on a mere demand or surmise'. Her Ladyship also held that “it must be shown that there are reasonable grounds to send the person to trial” and that a “prima facie case for conviction must be established through a meaningful judicial process”. According to the very learned Chief Justice, a meaningful judicial process… involves three related requirements; a separate and independent judicial phase; an impartial judge or magistrate; and a fair and meaningful hearing”. It was emphasised by her Ladyship that the “judicial aspect of the process provides a check against state excess by protecting the integrity of the proceedings and the interests of the “named person” in relation to the state process”. The judicial phase “must not play a supportive or subservient role to the executive. It must provide real protection against extradition in the absence of an adequate case against the person sought”.’

9 Extradition in Jamaica is governed primarily by the Extradition Act of Jamaica which provides safeguards to ensure the ‘balanced and meaningful judicial process’ as mentioned above, with the additional and overarching protection of section 14(1)(i)(ii) of the Charter of Fundamental Rights and Freedoms, which reads:

“14.-(1) No person shall be deprived of his liberty except on reasonable grounds and in accordance with fair procedures established by law in the following circumstances —

(i) the arrest or detention of a person —

(ii) against whom action is being taken with a view to deportation or extradition or other lawful removal or the taking of proceedings relating thereto.

10 Section 11 of the Extradition Act through which the Applicant now applies for Habeas Corpus, provides circumstances in which the Supreme Court on such an application may release the prisoner if said circumstances have been proven (section 11(3)). Section 7 also provides several circumstances under which an accused person should not be extradited. None of these circumstances appear in this case. This position is not challenged. It seems to me that from the wording of s11(3) that the powers of the Supreme Court are expansive, so that, even if the circumstances listed are not met, the Court can, by virtue of its inherent jurisdiction, find that, the prisoner, in the interests of justice should be released.

The role of the Supreme Court is essentially to ensure that the provisions of the Act are being or have been carried out in accordance with the intention of the Legislature, whilst at the same time, protecting the constitutional rights of the accused. The Court must balance the rights of the accused against those of the public, as well as its international obligations, the interests of comity between nations, and the overall interests of justice.

11 Sections 6 and 10(5) of the Extradition Act make it clear that for a person to be subject to extradition, that person must have been accused of or convicted of an extradition offence. Section 6 reads:

“Subject to the provisions of this Act, a person found in Jamaica who is accused of an extradition offence in any approved State or who is alleged to be unlawfully at large after conviction of such an offence in any such State, may after conviction of such an offence in any such State, may be arrested and returned to that State as provided by this Act.”

12 Section 10(5) through which the Applicant was committed in the Resident Magistrate's Court reads:

“Where an authority to proceed has been issued in...