Jan Hoy Cassells v The Attorney General

• Jurisdiction: Barbados
• Judge: Madam Justice Shona O. Griffith
• Judgment Date: 13 April 2022
• Neutral Citation: BB 2022 HC 010
• Docket Number: Civil Suit No: 19 of 2011
• Court: High Court (Barbados)

Between:

Jan Hoy Cassells

Claimant

and

The Attorney General

First Defendant

Chief Immigration Officer

Second Defendant

Superintendent of Prisons

Third Defendant

Before:

The Hon. Madam Justice Shona O. Griffith, Judge of the High Court

Civil Suit No: 19 of 2011

IN THE SUPREME COURT OF JUDICATURE

HIGH COURT

CIVIL DIVISION

Infringement of Constitutional rights - Detention pending deportation - Whether unlawful deprivation of liberty — Whether cruel and inhuman treatment — Appropriate Relief and Damages.

Appearances:

Ms. Sumaya Desai and Mr. Philip McWatt for the Claimant

Ms. Cherisse Whitehall-Small and Mr. Wilfrid Estwick for the Defendants

DECISION

Introduction

1 The Claimant Jan Hoy Cassells, a national of Jamaica, claims against the State, redress for alleged breaches of his Constitutional rights, arising from him having been unlawfully detained in Barbados for a period of two years. The Claimant had been permitted entry into Barbados in December, 2007 and in January, 2008 was detained by immigration officials to be deported to Jamaica, for having overstayed his time. The Claimant frustrated the first attempt to deport him, as a result of which he was detained at Dodd's Prison from 12 ^th January, 2008 through 10 ^th January, 2010. The Claimant alleges his detention in the first place to have been unlawful as he had not overstayed his time; but even if found lawful, he alleges that his continued detention was unlawful and that during such time, the treatment afforded him was inhuman and degrading.

2 As a consequence, the Claimant seeks appropriate declarations in recognition of the breaches of his Constitutional rights, along with a compensatory award of damages. The Defendants resist the Claim on the basis that the Claimant's detention for purposes of deportation was warranted in the circumstance of him having overstayed his time in Barbados.

Further, that the Claimant was the author of his own circumstances having destroyed his travel document and by his behaviour, frustrated the State's attempt to deport him. In respect of the Claimant's continued detention the Defendants aver that it was difficult to procure travel documents for the Claimant given the absence of his passport and his refusal to cooperate with the process. In essence therefore, the Defendants deny that the Claimant's detention was unlawful and refute the corresponding claims that his constitutional rights were breached.

Factual Background

3 The salient facts are summarized hereafter according to the parties' respective cases and the evidence elicited on cross-examination. Thereafter, the Court will set out its findings of fact arising from its assessment of the evidence, in relation to those matters which are considered material to the determination of the Claim. The Claimant's case alleges as follows:-

• (i) On the 5 ^th December, 2007 the Claimant arrived in Barbados from Guyana where he had been residing. His Jamaican passport having expired, the Claimant had travelled on, and was permitted entry into Barbados with, a temporary travel document issued by the Government of Guyana. The Claimant went to stay with his girlfriend whom he'd met in Guyana, at the house of her parents. The parents were residents of Barbados;

• (ii) Two days after arrival, the Claimant attended the Jamaican Consulate in Bridgetown where it was pointed out to him that he had not been given a time limit on his stay in Barbados;

• (iii) On the 8 ^th January, 2008 the Claimant attended the Immigration Office in Bridgetown in order to find out information about obtaining a work permit, or about seeking refugee status or political asylum. There he was ordered by an immigration officer to leave Barbados, detained and transported to the airport;

• (iv) At the airport the Claimant says he was placed in a cell overnight, denied the opportunity to speak with a lawyer but was allowed to communicate with his girlfriend Maxine, who was told to bring his clothes. Upon Maxine's arrival at the airport, she was locked up in the cell beside him and deported to Guyana;

• (v) The next morning, (9 ^th January, 2008) immigration officers came to escort him to the plane, but he tore up his boarding pass. He was issued with another, but the immigration officers retained his travel documents and gave them to the air stewardess after escorting him to the plane.

  Whilst on the plane the Claimant admits to having made a commotion, as a result of which he was removed, as the pilot refused to take off with an unruly passenger. The Claimant attributes his behaviour to his fear that his life was at risk in Jamaica;

• (vi) Having been removed from the aircraft the Claimant says he was returned to his cell in the airport where he then stayed for 3 days. With his cell phone he called his friend Mr. Hibbert who had accompanied him to the Immigration Office in Bridgetown;

• (vii) On the Saturday, he was transferred to the prison in St. Phillip where he remained for the next two (2) years. Whilst there, the Claimant says he was placed in the maximum security section; not allowed to speak with a lawyer; never taken to court; letters he wrote to persons seeking help were never sent as he never received any responses to them; he was not allowed newspapers, television or any contact with the outside world; he had no access to electronic devices; and was not facilitated with his vegan diet;

• (viii) About fifteen (15) months into his detention he received a response to a letter he had written to his girlfriend whom he found out had thought he was dead. His girlfriend came to see him and then started to visit regularly.

  About eighteen (18) months into his detention he was allowed to make a telephone call to the mother of his child, who resided in Ontario, Canada and she also thought he had died;

• (ix) The Claimant says he became depressed and tried to commit suicide by tearing up a bedsheet to use as a noose, but was stopped when a guard saw him. As a result, he was taken to see a psychiatrist to whom he reported that he'd been locked up, by then for twenty (20) months without charge. The psychiatrist told him he would help and within two days he received a visit from a lawyer;

• (x) After his visit from the lawyer, he was then released from custody on the 10 ^th January, 2010 and put on a flight back to Jamaica;

4 The case for the Defendants is comprised of the evidence of Mr. Terry Simmons, Immigration Officer and Lieutenant Colonel John Nurse, Superintendent of Prisons, the evidence of whom was as follows:-

• (i) Mr. Simmons had no personal interaction with the Claimant and spoke according to the information contained in the records of the Immigration Department. He confirmed that the Claimant arrived in Barbados on the 5 ^th December, 2007 on a Certificate of Identity issued by the Government of Guyana;

• (ii) The Claimant was granted thirty (30) days stay as a visitor in care of Sheila Higgins;

• (iii) On the 8 ^th January, 2008 the Claimant presented himself at the Immigration Department accompanied by a Mr. Hibbert. The Claimant was seeking political asylum or a work permit and it was there discovered that he had overstayed his visitor's permit;

• (iv) The Claimant also represented to the Immigration Department that he had been in witness protection in Canada, having witnessed a murder there, and that the person he testified against had been returned to Jamaica, resulting in him being in fear for his life were he to return to Jamaica;

• (v) Mr. Simmons says that upon their inquiries, the Immigration Department's information was that the Claimant's representations regarding being in witness protection in Canada were untrue and that he was a deportee. As a result of the Claimant's misrepresentations and overstaying his time, it was recommended that the Claimant be deported from Barbados;

• (vi) The Claimant was detained and transported to the airport on 9 ^th January, 2008 for deportation to Jamaica. During the boarding process and on the plane however the Claimant disrupted the process by destroying his boarding pass, he also destroyed his travel documents, and caused a disturbance on the airplane. The Claimant then had no travel or identification documents, was deemed an unruly passenger by the pilot and removed from the fight;

• (vii) The Claimant's behaviour in custody after removal from the flight was aggressive, threatening and uncooperative, as a result of which he was detained at the Prison (‘Dodds’) pending his deportation to Jamaica;

• (viii) The Claimant's behaviour, namely his verbal and physical objections to being deported to Jamaica, along with his action of destroying his travel document which was his only means of identification, made arrangements for his removal challenging and complicated;

• (ix) Mr. Simmons was not in a position to speak to any circumstances pertaining to the Claimant's detention at the Prison. The Claimant's release from detention was issued on the 16 ^th December, 2009 and he was removed from Barbados on the 10 ^th January, 2010.

5 The evidence of Superintendent of Prisons, Lieutenant Colonel Nurse was to the effect that:-

• (i) The Claimant was received at Dodds Prison from the 12 ^th January, 2008 pursuant to an Order for Detention pending removal from Barbados and released on 10 ^th January, 2010. Upon arrival he would have been processed according to the same protocols as any other class of detainee or inmate first arriving at the Prison;

• (ii) As an intended deportee, whilst the Claimant's detention status was not of a convicted or remand prisoner, he was housed at the Maximum Security area of the Prison as it was the most appropriate and safest location for the Claimant to be held. The Prison was only recently relocated to that facility and the Maximum Security area had single cell occupancy and allowed better administrative controls;

• (iii) As a detainee awaiting deportation, the Claimant ought to...