George Flowers v The Minister of Justice (Delroy Chuck)

• Jurisdiction: Jamaica
• Judge: Simmons J
• Judgment Date: 06 April 2017
• Neutral Citation: [2017] JMSC Civ 52
• Docket Number: CLAIM NO. 2017 HCV 0484
• Court: Supreme Court (Jamaica)
• Date: 06 April 2017

[2017] JMSC Civ 52

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. 2017 HCV 0484

In the Matter of an Application for leave for Judicial review for Declaration/Certiorari to quash the decision of Minister DELROY CHUCK 1 ^st respondent signing a Warrant of Extradition of the Applicant to Canada dated November 30, 2016 & February 7, 2017

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 Minister of Justice (Delroy Chuck)

1st Respondent

and

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

2nd Respondent

and

The Commissioner of Correctional Services

3rd Respondent

and

The Attorney General of Jamaica

4th Respondent

Mr. Don Foote and Mr. John Thompson for the applicant

Miss Althea Jarrett instructed by the Director of State Proceedings for the 1 ^st, 3 ^rd& 4 ^th respondents

Mr. Jeremy Taylor for the 2 ^nd respondent

Application for leave to apply for Judicial Review-res judicata — Extradition Act — section 13(1) (b)

IN CHAMBERS

Simmons J

1 By way of an ex parte application the applicant seeks leave to apply for an order of certiorari/ a declaration to quash the warrant of extradition dated the 7 ^th February 2017 (the February warrant). Additionally or in the alternative Mr. Flowers also seeks leave to apply for an order of certiorari/a declaration to quash the warrant of extradition dated the 30 ^th November 2016 (the November warrant). He has also sought an order that he be discharged from custody.

2 The grounds on which the application is based are stated to be as follows:-

• (i) The applicant's right to invoke the provisions of section 13 (1) (b) of the Extradition Act (the Act) to quash the November warrant which was signed and issued over one month ago is being prejudiced by the issuing and signing of the February warrant;

• (ii) That the issue of the November warrant and the February warrant is unfair, oppressive, an abuse of Ministerial power and a breach of the applicant's Constitutional right to be discharged pursuant to section 13 (1) (b) of the Act;

• (iii) The offence for which his extradition is being sought is not an extraditable offence under the Act, as there is no corresponding offence in Jamaican law;

• (iv) That the issue of the February warrant has either prevented or prejudiced his efforts to have his case for discharge being heard on its merits;

• (v) That in light of the fact that the applicant has spent four years in custody it would be unjust and oppressive to extradite him; and

• (vi) The applicant's appeal has a real likelihood of success.

3 On the day appointed for hearing there were two claims before the court in respect of Mr. Flowers; Claim No. 2017 HCV 00346 and the present claim. The former claim was centred around the issue of the November warrant. The respondents indicated that they had no difficulty dealing with both matters as their submissions would be the same.

Background

4 On the 23 ^rd March 2013 the Dominion of Canada made a request for the provisional arrest and extradition of Mr. Flowers in order for him to stand trial for the offence of aggravated assault. The particulars of the offence are that he engaged in sexual activities with five complainants while HIV positive, having not disclosed his medical status.

5 On the 3 ^rd June 2013 the then Minister of Justice, Senator the Honourable Mark Golding issued the authority to proceed. A warrant of arrest was subsequently issued and was executed on the applicant on the 4 ^th June 2013.

6 A further request was made for the applicant's extradition on the 30 ^th August 2013 and the authority to proceed issued on the 9 ^th September 2013. A warrant of arrest was issued and executed on the 19 ^th September 2013.

7 On the 22 ^nd August 2014 the applicant was committed for extradition. The applicant applied for a Writ of Habeas Corpus. The application was heard by the Full Court and was refused on the 30 ^th June 2016. The court also made an order that the applicant be extradited to Canada. The applicant through his Attorney-at-law Mr. Don Foote gave verbal notice of appeal.

8 On the 16 ^th November 2016 Mr. Flowers's Notice of Appeal was struck out for failure to comply with the Court of Appeal Rules, 2002.

9 The Minister of Justice subsequently signed the surrender warrant on the 22 ^nd November 2016. That warrant was withdrawn as it did not contain the particulars of the offences for which the applicant was being extradited. Another warrant was sent to the Minister who signed it on the 30 ^th November 2016.

10 On the 25 ^th November 2016 the applicant who was then represented by Mr. John Thompson filed an application for an extension of time to file his Notice and Grounds of Appeal. The ground on which he relied was dual criminality. On the 30 ^th January 2017 the application was refused. At the time, the court also considered the merits of the appeal.

11 The November warrant was not executed due to Mr. Flowers' pending application.

12 On the 1 ^st February 2017 Mr. Taylor wrote to the Minister indicating that in his opinion the November warrant had been spent. Mr. Taylor also enclosed a draft surrender warrant for his signature.

13 On the 3 ^rd February 2017 Mr. Flowers filed a Fixed Date Claim Form in which he seeks an order of certiorari to quash the November warrant. He also seeks an order for his release and damages. An ex parte Notice of Application for leave to apply for judicial review was also filed on that date. I will refer to those proceedings as the first claim.

14 A new warrant was issued on the 7 ^th February 2017. It is this warrant that has led to the filing of this claim.

Applicant's submissions

15 Mr. Foote submitted that the November warrant is invalid as it was signed whilst the applicant's application was still pending in the Court of Appeal. He also submitted that the February warrant is also invalid as it was issued whilst the applicant's application for extension of time was still pending. He stated that the issue of that warrant is an abuse of the Minister's power and a breach of Mr. Flowers' Constitutional rights.

16 He also stated that the issue of the February warrant has prejudiced the applicant's application in the first claim to quash the November warrant. He said that the issue of the February warrant amounts to unlawful Ministerial interference in those court proceedings and is a breach of the applicant's Constitutional right under section 13 (1) (b) of the Act to be discharged from custody. He stated that the applicant only became aware of the existence of the February warrant when he came to court. Counsel also submitted that section 13(1) (b) proceedings are required to be done by way of an application for judicial review to quash the warrant. He also stated that the provisions of section 11(3) are linked to applications under section 13.

17 He also raised the issue of dual criminality and submitted that where there is any doubt as to whether the offence for which the applicant is charged is an extraditable one that doubt ought to be resolved in the applicant's favour.

18 Where the amount of time that Mr. Flowers has been in custody is concerned, Mr. Foote directed the court's attention to the Affidavit of Urgency in which it is asserted that the maximum penalty for the offence for which the applicant's extradition is sought is three years and his client has spent four years in custody. He stated that it would be oppressive and unjust in such circumstances to extradite him. He emphasized that his client is still at risk of being extradited.

19 He stated that Mr. Flowers's case has a realistic prospect of success and as such leave should be granted for him to apply for judicial review.

First, third and fourth respondent's submissions

20 Miss Jarrett submitted that the grounds on which Mr. Flowers relies have no realistic prospect of success and as such his application ought to be refused. Reference was made to the case of Regina v Industrial Disputes Tribunal (ex parte J. Wray and Nephew Limited (unreported), Supreme Court, Jamaica, Claim No. 2009 HCV 04798, judgment delivered 23 October 2009 in support of that submission. Reference was made to the case of Tyndall & others v Carey & others (unreported), Supreme Court, Jamaica, Claim No. 2010 HCV 00474, judgment delivered 12 February 2010 and the case of Sharma v Brown – Antoine (2006) 69 WIR 379. Counsel also made the point that only the application for certiorari required the leave of the court and that his claims for declaration could be made without the court's permission.

21 With respect to section 13 (1) (b) of the Act Counsel submitted that the section does not anticipate an application for judicial review. She stated that it applies to an application for discharge where the criteria are met. She indicated that she understood Mr. Flowers to be saying that the issue of the second warrant would thwart his ability to discharge the invalid warrant.

22 She made the point that the draft surrender warrant with which the applicant has taken issue was requested and issued after the Court of Appeal had made its decision. Reference was made to paragraph 21 of the affidavit of Jeremy Taylor sworn to on the 9 ^th February 2017 which states that he wrote to the Minister of Justice on the 16 ^th November 2016 enclosing a draft surrender warrant for his signature and the decision of the Court of Appeal. The said warrant was signed on the 22 ^nd November 2016.

23 Miss Jarrett queried how the issue of the November warrant prevented the applicant's case being heard on its merits. She stated that Mr. Taylor's affidavit also states that although he received the said warrant on the 30 ^th November 2016 no action was taken to enforce it as Mr. Flowers had filed an application...