Selwyn Pieters Law Office Litigation Year in Review 2021: Staying Resiliant in the face of COVID19 and Pervasive Anti-Black Racism

 

By Selwyn A. Pieters B.A., LL.B., L.E.C.
Lawyer & Notary Public (Ontario, Canada)
Attorney-at-Law (Republic of Guyana, Island of Trinidad)
Pieters Law Office
Created December 27, 2021

Updated: January 02, 2022

Remembering 2021:  This was an interesting litigation year with law being practised in three countries, in several practice areas, with highs, lows, speed bumps, potholes (pun intended), falls and in-betweens. 

My work have covered a large number of clients and a wide array of legal areas, particularly, human rights law (racial discrimination, systemic discrimination, racial profiling, racial context to criminal law), civil litigation, Constitutional Law/Charter issues, criminal law, police law, Guyanese Constitutional law, as well as a variety of forms of administrative law.  I have been ably assisted by Thoby King who, upon completing his Articles of Clerkship, continues to provide legal services to my clients on a part-time basis.

Legal Publication

Civil Practice and Procedure in Ontario: Co-authored chapter on Rule 33 of Ontario’s Rules of Civil Procedure, which concerns orders to attend medical examinations. This project involved extensive case research and writing. The book was published on September 8, 2021. See, Selwyn A Pieters and Thoby King, Rules of Civil Procedure Chapters, Discovery, Rule 33 - Medical Examination of Parties in Civil Procedure and Practice in Ontario, Noel Semple (ed.), Canadian Legal Information Institute, 2021 CanLIIDocs 2025.

Speaking Engagements and Presentations

January 30, 2021, Black Pre-law Conference, Peter A. Allard School of Law, University of British Columbia

Community advocacy  regarding noose found at Michael Garron Hospital construction site

February 05-06, 2021, Participated as a Judge in the Julius Alexander Isaac Moot hosted by The Black Law Students’ Association of Canada (BLSA Canada) .

February 17, 2021, Osgoode Society for Canadian Legal History and BLSA Osgoode panel discussion with three Black legal professionals: Selwyn A. Pieters, Asha James, and Justice Lori Anne Thomas, on how Black Resistance has manifested through their journeys.

April 22, 2021: “COVID-19 and Police Racial Profiling in Ontario”, Regent Park Parent Conference Workshop Series.

May 31, 2021, Press Conference of Paul Slowe Chairman of the Police Service Commission (Guyana)

June 11, 2021: “Access to Administrative Justice for Community Users: A Litigator’s Perspective” at National Roundtable on Administrative Law: All the Voices We Don’t Hear, hosted by the Canadian Institute for the Administration of Justice.

July 28, 2021, Healing the Leaders, Toronto Centre of Community Learning & Development.

September 15, 2021 Selwyn A Pieters and Thoby King, Workplace COVID-19 Vaccination Policies: Can Non-Unionized Employees in Ontario be Fired for Non-Compliance?, CanLII Authors Program, 2021 CanLIIDocs 2230

October 4, 2021, Physicians for Human Rights Research Presentation on "Excited Delirium"

November 8, 2021, Law in Action Within Schools (LAWS)  careers workshop for grade 10 students at Central Technicao School

November 10, 2021, Grappling with Racial Bias in the Inquest Context, Presiding Inquest Officers.

November 23, 2021, Litigating Racial Bias, Faculty of Law, Queen's University.

November 27, 2021, panel discussion "Building resilience and community, one person at a time" Toronto Centre of Community Learning & Development.

Constitutional and Public law

I was counsel for the CityPlace Residents’ Association in City of Toronto v. Attorney General for Ontario 2021 SCC 34: This Supreme Court of Canada case concerned the City of Toronto’s constitutional challenge to the Provincial Government’s reconfiguration of municipal electoral boundaries during the municipal election of 2018. Our client was the CityPlace Residents’ Association, which intervened on the side of the City at the Supreme Court. The decision was a 5-4 majority for the Ontario government. CPRA's submissions on electoral listening was adopted by Abella J. and the minority (dissenting opinion). 

Previous summary of the case: I acted in this case at the lower leveels of Court as co-counsel for Rocco Achampong in  Toronto (City) v. Ontario (Attorney General) (C65861) where Justice Edward Belobaba of Ontario Superior Court of Justice overturned Bill 5, Better Local Government Act that dramatically changed the composition of City Counsel mid-way through the 2018 municipal elections. See, City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 stay granted Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761. The appeal was heard on the merit by a five member panel of the Court of Appeal and the Court in a majority decision overturned the decision of the Superior Court and restored the status quo in favor of cutting City Council. See,Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732. Mr. Achampong did not participate in the appeal. 

Knox College, University of Toronto, 2021 CanLII 75429, this matter involved an appeal to the PO-4176 - Information and Privacy Commissioner of Ontario in respect to the denial of email and other records held by the Toronto School of Theology and Knox College related to the appellant’s Doctor of Theology studies. In its decision the adjudicator concludes that records responsive to an individual’s request under the Freedom of Information and Protection of Privacy Act  regarding his doctoral studies in Theology at Knox College and the Toronto School of Theology are not in the University of Toronto’s custody or under its control. As the requester has no right of access to the responsive records under section 10(1) of the Act, the adjudicator dismisses the appeal.

Guyana Criminal and Constitutional Law

I have been heavily involved in a sequence of legal matters in Guyana relating to the Police Service Commission (PSC) and the Guyanese government’s attempt to influence promotions of senior police officers and to attack the PSC. These matters have not yet been resolved. Namely:

·      May 31, 2021 submissions of Paul Slowe, PSC Chairman and Commissioner Clinton Conway in response to a May 19, 2021 Show Cause Notices served on them from the Office of the Prime Minister, including a supporting affidavit of Paul Slowe with extensive exhibits and a brief of documents.

·      Joint submissions of all PSC members in response to a second round of Show Cause Notices dated June 1, 2021, including another affidavit of Paul Slowe and another brief of documents. Submissions were filed June 8, 2021.

·      Arrest, detention and seizure of electronic devices of A. H., a Police Sergeant, on the false allegation that he leaked the Report to the Police Service Commission into sexual harassment allegations against Senior Superintendent Karimbaksh prepared by Assistant Commissioner of Police Simon McBean to Sherod Avery Duncan 

·       After the purported suspension of the members of the PSC by the President on June 16, 2021, letter to the President regarding the purported suspensions ( June 28, 2021).

·    Fixed  Date Application and accompanying documents on behalf of the Commission seeking judicial intervention in the promotion of senior ranks. This matter is engaging the attention of the Supreme Court of the Judicature (Gino Persaud J.) The Police Service Commission v. Secretary, Police Commission (1004/2021-FDA)

·    Appeared in person at the Magistrate's Court in Georgetown, Guyana, on October 15, 2021, before Principal Magistrate, Sherdel Isaacs-Marcus for arraignment and bail hearing for former Chairman of the Police Service Commission (PSC), Paul Slowe on charges of  sexual assault x 3 and conspiracy to defraud the Guyana Police Force (GPF). Successfully secured bail. There is also a video of the conduct of the SOCU police officers that day as they attempted to detain, arrest and pass Mr. Slowe down the "chute." See also, Slowe to ‘vigorously defend’ fraud, sexual assault charges, Guyana Chronicle, May 22, 2021; Slowe granted bail on conspiracy to defraud, sexual assault charges, Stabroek News, October 16, 2021.

I was also retained in the case where Director of Prisons Gladwin Samuels was reassigned to the Ministry of Home Affairs as the Assistant Coordinator of People Smuggling. See, Samuels Removed as Prison Director, Village Voice, April 24, 2021. In this case no ligitation was initiated.

Civil Litigation

Lee and Willson v Agnelo, Agnelo and Thompson (SCJ File no. CV-21-00658765-0000): This is an ongoing file involving a dispute between neighbours over driveway access as well as alleged racial profiling and discrimination of our clients by the plaintiffs. The Plaintiffs recently filed for an Interim Injunction against my clients. The application for an Interim Injunction was dismissed. The Plaintiff did not meet the test of a strong prima facie case nor did they meet the traditional test for injunction. In her reasons for judgment The Honourable Madam Justice P. Tamara Sugunasiri wrote:

[26] .....I am using this opportunity to add to the growing body of caselaw that anti-Black racism need not be overt nor intended, in order to harm.

[27] Anti-Black racism is a reality in our society arising from centuries of stereotyping, negative messaging and negative imaging. As the Ontario Court of Appeal has recognized: “For some people, anti-black biases rest on unstated and unchallenged assumptions learned over a lifetime. Those assumptions shape the daily behaviour of individuals, often without any conscious reference to them." While much of the jurisprudence on anti-Black racism arises in the criminal context, it is impossible to imagine that civil disputes are completely immune from such influences. Often it can only be inferred from circumstantial evidence, which has its own pitfalls. The challenge for another day will be to determine if, and to what extent, unconscious anti-Black racism impacts on the equities of this case.

Yeates et al. v. Karol et al.; CV-15-540974, This was a claim involving Nuisance, Breach of Contract, Personal Injury, Negligence, and Property Damage arising out of a a construction dispute between neighbours.

Criminal Law

R. v. Vaughan Oscar Roberts - Mr. Roberts is charged with second degree murder of Jason Wagar, attempted murder of Michael Muchmore, possession of a restricted weapon, possession of a loaded restricted firearm without an authorization or licence, without lawful excuse point a firearm at another person, use of a firearm in the commission of an indictable offence, and discharge of a firearm with intent to endanger the life of Michael Muchmore. These charges arise from an incident that occurred on August 12, 2021, at 15 Fergus Street, in the City of Kingston. A bail hearing was held in this matter and a publication ban requested by the Crown Attorney was resisted by Mr. Roberts: R. v. Roberts, 2021 ONSC 8116 (SCJ). Mr. Roberts was released on bail the Judge having found that "Considering the totality of the evidence presented, including the racial context, the qualities of the sureties, the terms of the proposed plan of supervision, the lack of a criminal record, and the most recent outbreak at the Quinte Detention Centre, I am of the opinion that detention is not necessary in order to maintain confidence in the administration of justice." R. v. Roberts, 2021 ONSC 8401. See also, Attempted murder added to charges in Kingston shooting globalnews.ca, August 13, 2021; Murder suspect seeks bail, declines publication ban The Whig.com October 26, 2021; Judge grants bail to Black Ajax man facing murder charge, citing 'very strong' self-defence argument in death of white Kingston man, Toronto Star, December 17, 2021 

R. v. Madison 2021 CarswellOnt 5084, 171 W.C.B. (2d) 337 Sentencing of Connor Madison: A sentencing hearing was held on March 30, 2021 for Mr. Connor Madison on multiple charges including aggravated assault and uttering threats.  Mr. Madison is a 23-year old man of Metis heritage who stabbed another resident of a shelter and later threatened his mother and as well a Toronto Community Housing security officer, while out on bail. Mr. Madison was sentenced to 24 months for aggravated assault, two months consecutive, for threatening security officer and one month consecutive for threatening his mother, less 488 days' credit for time served.

Preliminary inquiry of Connor Madison: Mr. Connor Madison was charged with second-degree murder in June, 2020 in connection with stabbing death of Stephon Anton Knights-Roberts . His preliminary inquiry was held from May 17 – 19, 2021 with a decision given orally on May 27, 2021 committing him to trial. 

R. v. Clarke  Mr. Clarke was charged with aggravated assault for which he entered a plea to the lesser included offence of assault causing bodily harm. There was a joint position for 18 month conditional sentence having regarding to mitigating factors in favor of the accused. The complainant, who orchestrated the confrontation with Mr. Clarke, sustained multiple stab wounds. One in the upper middle back area that was plugged at the scene by EMS and resulted in a collapsed lung. The stab wound to the left ear severed some nerves and plastic surgery was necessary to repair the damage. The treating physician indicated that there were lacerations to left parotid gland, which is located just under and in front of the left ear.  Also, a laceration to the left temporal artery, located just in front of the left ear. The final stab wound was to the left anterior lower neck area 3-4 inches in length and which caused a hematoma.  He was taken to surgery to rule out any injury to his trachea and esophagus. The complainant was first treated with a surgically placed chest-tube to his right chest. He also received a number of sutures to close the wounds to his ear, neck and back. The complainant spent a week in hospital prior to being discharged. He continues to have some lasting effects, including some nerve damage to his face due to the nerve damage caused by the severing of the nerves near his ear, as well as strained breathing due to the injury to his lung. Mr. Clarke as a result of my work served no jail time for this offence.

R. v. Harry, the complainant alleged that the accused assaulted her in the presence of her children, two of whom she alleged were ear witnesses and one of whom was present in the room. As a result of plea negotiations Justice Broderick granted the accused a conditional discharge. This means that he will not receive a criminal conviction and will not have a criminal record from this incident, but there will be a temporary record kept of the discharge. 

R. v. J.A. mischief - this was a domestic matter in which the complalnant alleged that the accused broke her computer monitor. The charges were withdrawn.

R. v. Theriault, 2020 ONSC 5784 - Provided legal advice and assisted in the revision and editing of a  Community Impact Statement for the sentencing of a White Police Officer who was involved in the assault and lost of an eye of Dafonte Miller, a Black teenager.

Domestic Violence - cases involving domestic violence and interpersonal assaults / violence amongst spouses and friends with benefits increased astronomically during COVID and the resulting lock-down. We provided representation in criminal matters and regulatory matters arising out of such difficult matters that spawn charges that could include murder, aggravated assault, assault bodily harm, 267(C) assault/choking, CC 267 assault with a weapon,  CC 266 assault,  CC 279(2) forcible confinement, CC 267(A) assault with a weapon.

Police Law (hybrid Human Rights)

We provided legal representation to clients in several cases involving police misconduct before the Office of the Independent Police Review Director (OIPRD) some of which resulted in findings of misconduct and disciplinary action.

On April 15, 2020, the Court of Appeal released Stanley v Office of the Independent Police Review Director, 2020 ONCA 252 upholding in part Stanley v. Chief of Police of the Toronto Police Service, 2019 ONSC 180. In this case Office of the Independent Police Review Director substantiated misconduct against Constable Christopher Howes with respect to his conduct during a search warrant entry in the Stanley family home. In this decision, the Court of appeal determined in para. 64-68 and 75-78, the following:

 

(a) The Police Services Act, RSO 1990, c P.15 trumps both common law and the SPPA,

(b) The OIPRD has the authority to make rules to govern its own practices and procedures,

(c) The OIPRD lacked explicit statutory power of reconsideration when the decision in question was made, but

(d) accepted that this newly acquired legal authority might be applied retrospectively to the Stanley family’s case if re-investigation is to be ordered.

Leave to appeal this decision was subsequently dismissed by the Supreme Court of Canada on January 28, 2021: Office of the Independent Police Review Director v. Faye Stanley, et al., 2021 CanLII 4697. Supreme Court won't hear police oversight case on Black family's allegations of brutality, Canadian Press, January 28, 2021.

A significant proportion of those residing in homeless encampments in the City of Toronto belong to historically marginalized groups who are overrepresented among Toronto’s homeless population. They include people with disabilities, Black and Indigenous people of colour, people in receipt of social assistance and members of the LGBTQ community protected under the Human Rights Code, R.S.O. 1990 c. H.9 and s. 15 of the Canadian Charter of Rights and Freedoms. See, Black et al. v. City of Toronto, 2020 ONSC 6398 and Sanctuary et al v. Toronto (City) et al., 2020 ONSC 6207 

In June and July 2021, the City has escalated its efforts to force homeless encampment residents to vacate public parks and to remove their belongings. It has issued Notices of Advice under Municipal Code c. 608 which regulates City parks and prohibits, inter alia, the erection of tents in parks (the “Parks By-law”). The City has issued Trespass Notices requiring the removal of tents and belongings and prohibiting people from being in parks overnight. It has conducted massive operations removing the occupants of the encampments.

While the City’s enforcement of the Trespass Notice(s) is facially neutral, it is the above disadvantaged persons who are being forcibly removed by Police and City officials and further displaced.

The videos of the tactics of the Toronto Police in the past two encampment clearance at Lamport Stadium and Alexandra Park was disturbing for its wanton violence. OIPRD can do a systemic type of review similar to what was done on the Thunder Bay Police Service and make systemic recommendations. Our law firm has filed OIPRD complaints on behalf of two persons who alleged they were mistreated by Toronto Police officers.

I also provided Independent Legal Advice to police officers who experienced various forms of racism in the Toronto Police Service.

Of course, being a human rights advocate / lawyer comes with risks of harassment and retaliation from officers of the State:  6 Toronto cops were found guilty of disparaging anti-racism advocates. The report was kept secret, CBC Toronto, November 04, 2021; 6 Toronto police officers found guilty of discreditable conduct online, Global News, November 04, 2021.

Human Rights Law

Selwyn prticipated in the 60th Anniversary of the Ontario Human Rights Commission (OHRC) by recounting his experience in the seminal and significant racial profiling/carding case of Peel Law Association v. Pieters 2013 CarswellOnt 7881, 2013 ONCA 396, 228 A.C.W.S. (3d) 204, 116 O.R. (3d) 81, 306 O.A.C. 314, 9 C.C.E.L. (4th) 233, [2013] O.J. No. 2695(Ont. C.A.)

2017-28096-I Walkes v. Reids Heritage Homes, the Human Rights Tribunal of Ontario heard submissions on whether an expert affidavit from J David Hulchanski, PhD will be accepted into evidence and the expert qualified to provide evidence in this housing discrimination case. Dr. Hulchanski posited that “Given that the Black population of the region Fergus is part of is 526,000 (5.8% of the GGH, Table 1) researchers are correct to wonder what are the odds of an exceptionally small Black population of Fergus occurring and maintaining itself ‘naturally,’ and for so long (as of 2016), given the extensive ethnocultural diversity of the Toronto region, and much of Ontario and Canada? How is it that Fergus with 20,400 people, 8,150 households, in a county that has 3,300 Black residents, has a Black population of 100? These facts, given that they are from 2016, would alert most researchers to consider residential discrimination, in the form of racial steering and racial exclusion, as part of the explanation.” The Tribunal's decision is reported at Walkes v. Reid’s Heritage Homes, 2021 HRTO 251. In this case we were also successful in a third party records application which compelled TD Canada to produce banking records to the Tribunal and the parties. 

Holder:  (File. No. 2020-43232-I) is a Human Rights application regarding racial and age discrimination and failure to accommodate disability-related needs. Employer is the Ministry of the Attorney General representing her employer the Human Rights Tribunal of Ontario.  A significant issue has been the impact of a purported settlement of the Human Rights claim by the union. A preliminary hearing to determine the point was heard and a decision is pending. See also,  Ontario Public Service Employees Union (Holder-Regis) v Ontario (Attorney General), 2020 CanLII 97346 (ON GSB).

Other cases worked on in 2021 include

 N.M. as represented by litigation guardian L.B. v Toronto Police Service Board (File No. 2020-42533-I): Police racial profiling and racialized use of force against a minor. A video of the 14 year old being hog tied by Toronto Police is on youtube. See also, Mother of teen says 'violent' Toronto police arrest has 'traumatized' her son, Global News, August 21, 2019.

Lamontagne v Metrolinx (File No. 2020-43455-I) and Lamontagne v Metrolinx (File No. 2020-43456-I): Racial profiling and racialized use of force by GO Transit special constables. The applicants alleged that they were singled out and treated differently because of their race and ethnicity: Black, African-Canadian, Males.

 Orlyn Collins v Movati Athletics (File No. 2020-40427-I): Racial profiling at a gym. See, for example, Collins v. Movati Athletic (Group) Inc., 2020 HRTO 849, for a synopsis of what this matter was about.

Chen v Toronto Police Service Board (File No. 2019-39271-I): Racial profiling and racialized use of force by police. Mr. Chen alleged that he was held and restrained by two police officers whilst a third officer assaulted him causing him physical injuries. This matter is still awaiting a hearing.

Burke v Toronto Police Service Board, Chief of Police of the Toronto Police Service, Constable Blacklaws (File No. 2020-40412-I): Racial profiling and racialized use of force by police. Mr. Burke was detained and left in handcuffs. Toronto Fire had to attend and cut the handcuffs off.

In the international law arena, I was engaged as a local expert for the World Bank Group’s Women, Business and the Law project in their Violence against Women survey for Guyana.

Employment/Labour Law

Selwyn represented several non-unionized employees in managerial positions in termination of employment matters where the dismissal was for cause and some without cause and without notice. The matter to be resolved and has been resolved in all of the cases litigated in 2021 was the length of the notice period,  human rights damages, and other benefits, the employer was obligated to pay the employee in lieu of the notice, and having regard to other factors including bad faith termination.

Selwyn also provided advice to non-unionized employees on COVID19 vaccine mandates in their workplaces: See, for example, Selwyn A Pieters and Thoby King, Workplace COVID-19 Vaccination Policies: Can Non-Unionized Employees in Ontario be Fired for Non-Compliance?, CanLII Authors Program,

 

Licencing / Professional Regulation

13315/HRLA Jon P Galvano v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 - this matter involved an application to revoke a horse racing licence. A determination of the matter was not made as the applicant died before the appeal could be heard.

2595582 Ontario Inc. C.O.B. Yas Café and Lounge v York Region Public Health Unit (Health Services Appeal and Review Board, File No. 21-HPP-0012): this matter involved a challenge to the Medical Office of Health’s order to close hookah lounges in York Region due to COVID-19. At a Case conference, the impugned order was put in abeyance due to the Province-wide lockdown that had come into effect in the interim. The matter was subsequently resolved upon the stage 3 reopening of businesses including hookah lounges. 

Banking Law

TD Canada terminated my client's banking relationship including that of other family members without explanation on on the basis that it was "within our right to end our relationship with any customer, without giving detailed reasons, provided we have given reasonable notice of doing so." We were able to negotiate an extension of time for the client's use of her banking facilities including credit card.

BMO terminated and determined the mortgage of a client on the basis that its business activities are outside of the bank's "risk appetite. It provided one months notice of the termination. On the bais of our negotiation the Bank increased the notice period for withdrawal of its services from one month to about six months. Although it has shortened the time for the client to repay the term loan, the duration was still in accordance with what the courts have found reasonable.

Inquests

Since January 2021 Selwyn has been appointed as one of ten Ontario lawyer Presiding Inquest Officers under the Coroners Act, R.S.O. 1990, c. C.37. The appointment comes as a result of a legislative change to the Coroners Act that allows a lawyer to preside at a Coroners Inquest. Until 2021, all presiding officers at Inquests were medically trained. The role is part-time and will complement Selwyn's litigation practice.

Provincial Offences Act matters

Sale or distribution by non-authorized cannabis retailer or permitted by landlord (ss.6, 7, 13 and 23 of the CCA). For charges of sale of cannabis under s. 6 of the CCA. I represented budtenders of unlicenced cannabis dispensaries who faced charges under s. 6 of the CCA. The City of Toronto prosecution and defence resolved these matters on the basis of a fine of $1000.00 and one-year probation, for the budtenders.

Selwyn also represented clients in respect to charges under the Planning Act; Building Code; and Emergency Management and Civil Protection Act.

Animal Law matters

Selwyn has represented the owner of a company licensed to provide services including canine security and training and sale of trained dogs for security and other service purposes in litigation matters.

Litigating Racial Bias 23112021

Text of Police Service Commission Legal Arguments on Attorney General of Guyana Application to Strike Out the President as Respondent – Hearing before Justice Gino Persaud

Oral Argument

Delivered by Selwyn A. Pieters, B.A., LL.B., L.E.C.

Attorney-at-Law

 

RE: Guyana 2021-HC-DEM-CIV-FDA-1004 – Attorney General’s Application to Strike Out the President as Respondent – Hearing before Justice Gino Persaud, August 30, 2021

 

Introduction

·         Good afternoon, Your Honour.

·         It is the position of the Police Service Commission that His Excellency the President of the Cooperative Republic of Guyana is indeed a proper and appropriate party in these proceedings, being named in his official capacity in that office.

o   For the reasons set out in our Reply submission filed July 29, 2021, and these oral arguments which are being delivered today, we humbly ask the Court to dismiss the Attorney General’s application and proceed to consider the merits of the Fixed Date Application against all of the named Respondents, including His Excellency the President.

 

1. Why We Named His Excellency as a Respondent

·         I would like to begin by simply explaining why we chose to name His Excellency the President as a party to these proceedings.

·         In the Fixed Date Application, we seek a number of orders to remedy what we submit is the unlawful suspension of the members of the Commission by His Excellency on June 15/16, 2021, as well as the actions of the Secretary to the Commission and the Commissioner of Police following the said unconstitutional and unlawful suspensions.

o   The first of these orders sought, listed as letter (a) on the first page of the Fixed Date Application, directly concerns the actions of His Excellency on June 15/16, 2021 in sending the letters that contained the purported suspensions.

§  As we assert, His Excellency`s letters did not abide by the requirements of Articles 225(6) and 210(3) of the Constitution, and were therefore ultra vires and of no force or effect, and we have asked for a declaration to this effect.

·         This declaration sought is the reason that we decided to name His Excellency as a respondent.

o   It was, after all, His Excellency and His Excellency alone who ordered the said suspensions, under a power vested in him through Article 210(3) of the Constitution.

o   We submit, of course, that His Excellency did so in a manner that contravened the Constitution.

o   But in any event, there is no question that this was an action of the President in his official capacity, as indeed the Attorney General’s submissions themselves appear to acknowledge at paragraph 11.

·         So, in short, because the Fixed Date Application specifically impugns an official action by His Excellency the President, and because we seek a declaration that directly concerns the said Action, we respectfully submit it is appropriate to name His Excellency the President as a Respondent, alongside the four other named Respondents.

·         Your Honour, we also acknowledge that the naming of His Excellency as a party in these proceedings is somewhat unusual.

o   However, we submit that this fact simply reflects the unusual and unprecedented nature of this case and of the actions which we allege His Excellency and His Excellency’s government have taken against the Commission: unconstitutional, undemocratic and violation of the independence and automy of this Constitutional Service Commission

o   Simply because there is no exact precedent for this case does not mean that naming His Excellency is impermissible at law.

 

2. His Excellency is Named in His Official, Not Personal, Capacity

·         Your Honour, as we have indicated in our written submissions, the crucial legal point is that the Fixed Date Application names His Excellency in his official capacity, not his personal capacity.

o   The named party is “His Excellency the President of the Cooperative Republic of Guyana,” not “Dr. Mohamed Irfaan Ali.”

·         This is an absolutely crucial distinction to make because Article 182(1) of the Constitution, relied on by the Attorney General, prohibits only those proceedings “against him or her [the President] in his or her personal capacity.”

o   This would appear not to include his official and public capacity.

o   The drafters of the Constitution chose to include the words “in his or her personal capacity”, and respectfully, we submit that they did so because those words mean something.

o   In other words, we submit that it would be an error to assume that, really, the drafters meant to say, “no proceedings should be instituted against him or her FULL STOP.”

·         To illustrate this distinction in our written submissions, we have given the example of an applicant in a British Commonwealth country naming Her Majesty the Queen as a respondent to impugn official government conduct.

o   I appreciate that there is some difference between the Queen as a symbolic head of state who does not herself engage in any acts of government, and naming a President who does participate in government.

o   Nonetheless, we submit that, at the procedural level of naming the party, what we have done is analogous to naming Her Majesty the Queen in Right of Canada or Ontario or another government entity. Nothing in law prohibits the naming of a HEAD OF STATE in his or her Capacity under the Constitution of Guyana.

 

3. The Role of the Attorney General Does Not Preclude Naming His Excellency

·         The next point I would like to make is that, while the Attorney General is the legal representatives of the Government of Guyana, and is a necessary and appropriate party to these proceedings,

o   the said role of the Attorney General does NOT preclude the naming of His Excellency the President.

·         The Attorney General’s role in these proceedings is set out in:

o   Article 112 of the Constitution (which names him as the “principal legal advisor to the Government of Guyana”);

o   Section 10 of the State Liability and Proceedings Act (which establishes that any claim against the state must be brought against the Attorney General); and

o   Rule 56.01(3) of the Civil Procedure Rules of 2016 (which requires service on the Attorney General where a Constitutional claim is made).

·         A review of these proceedings reveals that none of the law cited prohibits or precludes the naming of His Excellency as a party in his official capacity. 

o   To claim that it does goes against the plain meaning of these provisions.

 

4. Other Grounds From Our Written Submissions

·         Your Honour, I propose to address the remaining grounds set out in our written submissions only briefly before I move on to make some remarks about My Friend’s submissions.

·         First, we have submitted that, even if it is true that the State Liability and Proceedings Act can be interpreted in the broad way that the Attorney General has done, that statute cannot preclude any application grounded in the Constitution rather than in any statute or the common law, such as our Fixed Date Application.

o   This is a simple consequence of the fact that the Constitution is the supreme law of Guyana, and so cannot be constrained or undermined by a mere statute.

o   Therefore, it is submitted that His Excellency can be named notwithstanding the State Liability and Proceedings Act, whatever its application in other non-Constitutional cases.

·         Second, it cannot be emphasized too strongly that His Excellency the President is bound by the laws and Constitution of Guyana and is not above those laws or that Constitution. He is a servant of the Constitution and Subordinate to it. See, for example, articles 93 and 180.

o   No person is above the Constitution or the law, and this includes His Excellency, notwithstanding his status as Head of State.

o   His Excellency’s subjection to the Constitution is not something that exists only in theory.

o   Rather, individuals and organizations must be able to hold His Excellency accountable in a court, and the ability to name His Excellency as a party to proceedings, such as this one, is an important part of that system of accountability.

 

5. Responses to the Attorney General’s Submissions

·         Your Honour, I will now briefly address the submissions of My Friend the Attorney General in support of his application to strike His Excellency as a respondent.

·         My Friend begins by providing the history of presidential and Crown immunity.

o   In response to this, I will simply indicate that we are not in medieval England and we are not in colonial British Guiana.

o   We are in the Cooperative Republic of Guyana in 2021 and the applicable laws are those that we have on the books today.

o   Old doctrines such as the idea that “the king can do no wrong,” cited in My Friend’s submissions, have surely been rejected altogether by the people of Guyana who have determined, through our history and the drafting of our Constitution, that no person is above the law.

·         My Friend also refers to a number of cases from other jurisdictions such as Sri Lanka and India to support his interpretation of our Constitution.

o   To this, I will point out that these cases come from different countries with different constitutional orders, history, different traditions, foreign to our own,  and should not be followed as if they addressed the Constitution of Guyana.

o   For instance, the Indian Constitution at Article 361(1), referred to in the case of Rameshwar Prasad and Other v Union of India and Another[1] and quoted at paragraph 18 of my friend’s submissions, states that the President:

“shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.”

§  No such provision or language exists in the Constitution of Guyana.

·         As far as the rationale for presidential immunity is concerned, addressed at paragraphs 32 – 39 of My Friend’s submissions, I will simply submit that there is no risk whatsoever that these proceedings will hinder His Excellency in fulfilling the lawful functions of his office, or constitute an undue distraction from that office simply because His Excellency is a named party.

o   The Attorney General in para 38 of his written submissions submits that “Article 182 (1) of the Guyana Constitution, like similarly worded provisions of the Commonwealth Constitutions, shares the essence and underlying spirit of these provisions, that is, to allow His Excellency, the President of the Cooperative Republic of Guyana, to perform the high functions of his office as Head of State, Head of Government and the Supreme Executive Authority and not to be distracted by being named in legal proceedings, either officially or personally.” Distraction is not a sufficient basis to support a claim that the President cannot be named as a party to this proceeding.  We note that the President who has unconstitutionally interfered in the independent process of the PSC, unconstitutionally suspended the PSC, has not explained how being named in this judicial process initiated as a result of his own unconstitutional conduct would significantly distract him from his ability to carry out the duties of the President. particularly, where, as here, he is represented by the MAGLA.[2] His Excellency has the very able representation of My Friend the Attorney General and these proceedings will not take up any more of His Excellency’s time if he is named than if he is not. Distraction does not implicate the Constitution. See, Trump v. Vance 591 U.S. ____ (2020)

·         With respect to the Guyanese cases relied on by My Friend, my submissions are as follows:

o   First, in the case of Baird v Public Service Commission and the Attorney General, it is clearly articulated in the very text quoted in My Friend’s submissions that the immunities under Article 182 of the Constitution “attach personally to the President”, making him “personally immune from the curial processes.”

§  There is no question that His Excellency enjoys immunity to civil actions in his personal capacity.

§  The question is whether this also implies a further immunity in his official, public capacity. We submit that it does not.

o   My Friend also places reliance on a short piece of obiter dicta from the 1991 Guyana case of Kent Garment Factory v The Attorney General and the Minister of Trade and Tourism.[3]

§  As we have outlined at paragraphs 26 – 30 of our Reply, that case concerned an entirely different fact situation involving, not the President, but the Minister of Trade and Tourism, and considered a challenge, not to any official conduct of that Minister, but to the refusal of an import license by an official in his ministry.

§  We submit therefore that Kent Garment Factory can be easily distinguished from the present case.

§  I reiterate, in any event, that it addressed the question of naming the said Minister only in passing and entirely by way of obiter dicta.

§  We therefore submit that Kent Garment Factory has no application to the present case.

o   Third and finally, My Friend relies on the 2019 case of DIPCON Engineering Services Limited v The Attorney General of Guyana and the President of the Cooperative Republic of Guyana.[4]

§  In that case, as in this one, the Applicant named “the President of the Cooperative Republic of Guyana” as a Respondent and, as My Friend has pointed out, the Court concluded that it could not do so.

§  Your Honour, our submission with respect to the DIPCON case is simply that it was not well-founded in law, and in particular that the Court in that case made the error of following several foreign judgements without acknowledging the differences between our Constitution and the Constitutions under which these foreign cases emerged.

§  Specifically, the Court relied almost entirely on cases from Uganda, Sri Lanka, India, and Botswana, with some further reference to the American jurisprudence.

§  However, the constitutions considered in each and every case clearly established that the president in question could not be named in his personal or official capacity, unlike the Constitution of Guyana.  

§  For instance, Article 98(4) of the Constitution of Uganda, quoted at paragraph 25 of DIPCON, says simply, “While holding office, the President shall not be liable to proceedings in any court.”

§  Similarly, the Sri Lankan Constitution, quoted at paragraph 30 of DIPCON, expressly provides immunity “in respect of anything done or omitted to be done by him either in his official or private capacity.”

§  As for the Indian Constitution, I have already explained that it, too, expressly provides immunity for the official conduct of the President, which Guyana’s Constitution does not.

§  Interestingly, the Court in DIPCON acknowledged that, for Botswana, Article 41 of that country’s Constitution allowed the President to be sued in his official capacity.

§  Your Honour, we acknowledge that the DIPCON case is perhaps alone in directly addressing the question of whether or not the President can be named as a respondent in this Court. But we say this decision is an outlier and should be followed by you.

§  So to reiterate, the lack of specific mention of official capacity means that this is possible and our authority is the Constitutional provision that prohibits suing in the private name or capacity of His Excellency. To be clear, what the constitution does not prohibit cannot be said to be prohibited by common law or case law from other jurisdictions.

§  We submit that that the DIPCON case was not correctly decided and that this honourable Court should decline to follow DIPCON to the extent that it indicates a president cannot be named in his official capacity.

 

Conclusion

·         In closing, Your Honour, the Police Service Commission maintains that His Excellency the President has been properly named as a respondent in his official, public capacity as President, given that the Fixed Date Application directly challenges an official action by the President in that office.

o   Nothing in Guyana’s Constitution, or in the State Liability and Proceedings Act, or in any other statute or regulation in Guyana, and nothing in the history of presidential immunity or the jurisprudence of any other country, precludes the Police Service Commission’s naming of His Excellency the President in his official capacity in this Fixed Date Application.

o   The Police Service Commission submits that the Attorney General’s interpretation of the law runs

§  contrary to the plain meaning of the Constitution and the statutes relied on,

§  contrary to the spirit and purpose of presidential powers, privileges and immunity,

§  and contrary to the supremacy of the Constitution of the Cooperative Republic of Guyana.

o   We therefore humbly ask the court to dismiss the Attorney General’s application to strike His Excellency as a party.

·         Thank you, Your Honour. Subject to any questions from the Court, those are our submissions.

 

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[1] [2006] INSC 35 (24 January 2006).

[2] In any event, as alluded to in our submissions on the show cause hearing, Article 93 of the Constitution provides as well that he can be impeached! If there is any distraction, that distraction is from his own unconstitutional action that may well trigger impeachment. But that is not an issue for the Court, it is for the legislature.

[3] (1991) 46 WIR 177.

[4] 2019-HC-DEM-CIV-FDA-1148.