REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV2017-00720 IN THE MATTER OF AN APPLICATION FOR CONSTITUTIONAL REDRESS UNDER S.14 OF THE CONSTITUTION BETWEEN JASON JONES Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant AND THE EQUAL OPPORTUNITY COMMISSION THE TRINIDAD AND TOBAGO COUNCIL OF EVANGELICAL CHURCHES THE SANATAN DHARMA MAHA SABHA OF TRINIDAD AND TOBAGO Interested Parties Appearances: Claimant: Richard Drabble QC leading Rishi P. A. Dass instructed by Antonio Emmanuel Defendant: Fyard Hosein SC leading Keisha Prosper instructed by Lesley Almarales Interested Parties: Lorelei Liselle Wong for the Equal Opportunity Commission Elton Prescott SC leading Alicia G. George for the Trinidad and Tobago Council of Evangelical Churches Dinesh Rambally for the Sanatan Dharma Maha Sabha Before The Honourable Mr. Justice Devindra Rampersad Dated the 12th day of April 2018 JUDGMENT Contents Introduction ............................................................................................................................. 3 Background ............................................................................................................................. 4 The History of the Law .......................................................................................................... 6 The Current Legislation ....................................................................................................... 12 The Savings Clause ........................................................................................................... 13 Commentary on Savings Clauses ............................................................................... 14 Construction to be applied to the interpretation of Constitutions: ........................... 18 The Sexual Offences Act: ................................................................................................. 20 The Section 13 Discussion ................................................................................................... 24 Commentary on Francis and applicable principles ................................................. 24 The Section 13 Test ............................................................................................................... 26 Has there been an infringement of the claimant’s constitutional rights? ................. 26 The burden of proof ......................................................................................................... 31 Reasonably Justifiable? .................................................................................................... 33 The Bereaux approach: ................................................................................................ 33 The Archie/Jamadar approach: ................................................................................... 36 Suratt/Omar Maraj........................................................................................................ 38 The Oakes Test .............................................................................................................. 40 The Test to be Applied? ............................................................................................... 43 The position in Democratic Societies ............................................................................. 44 Application to the facts ...................................................................................................... 45 Conclusion: ........................................................................................................................ 51 The Order ............................................................................................................................... 53 Appendix ............................................................................................................................... 54 Page 2 of 57 Introduction 1. By this action, the court has been asked to determine whether the State has the constitutional authority to criminalise sexual relations between consenting adults. Sexual relations between persons of the same sex constitute a criminal offence by virtue of sections 13 and 16 of the Sexual Offences Act Chapter 11:28 (“the Act”). 2. The claimant petitioned the court, pursuant to section 14 of the Constitution, to strike down sections 13 and 16 of the Act and, by so doing, decriminalise consensual sexual relations between persons of the same sex. The defendant took the position that sections 13 and 16 of the Act constitute saved law by virtue of section 6 of the Constitution and, consequently, are saved from challenge. Alternatively, it was argued that even if sections 13 and 16 of the Act were not saved law, section 13 of the Constitution was applicable and that the claimant failed to prove that the sections were not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. 3. This court considered the numerous authorities submitted by the parties1 hereto outlined in the appendix. The court considered the history of the impugned sections and the applicable principles and tests to be applied to constitutional challenges in this jurisdiction together with persuasive authorities in other jurisdictions. 4. After careful consideration this court came to the following conclusions: 4.1. Sections 13 and 16 are not saved by section 6 of the Constitution and are open to challenge; 4.2. The case fell to be determined on an application of section 13 of the Constitution; 4.3. Sections 13 and 16 of the Act violate the claimant’s fundamental rights, especially his right to respect for his private and family life; 4.4. Sections 13 and 16 of the Act have been proven not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual2. 1 And, where applicable, the interested parties 2 The awkward construction of this sentence seeks to preserve the words used in the test set out in s. 13 (1) of the Constitution Page 3 of 57 Background 5. It was not disputed that the claimant is an adult male who is openly homosexual. He is a citizen of this country by birth but is currently resident in London and habitually visits this country from time to time. According to the claimant, the impugned sections violate his constitutional rights by forcing him to either express his sexual orientation and risk conviction or forego consensual sexual relationships with another male partner. The claimant has thus asked the court to strike down the impugned sections as it was observed that no heterosexual male in this country is forced into making such a decision. 6. Section 13 of the Act creates the criminal offence of buggery for which a person is liable on conviction to imprisonment for twenty-five years. Buggery is thereafter defined as sexual intercourse per anum by a male person with a male person or by a male person with a female person. 7. Section 16 of the Act stipulates that a person is liable to imprisonment for five years if they commit an act of serious indecency. An act of serious indecency is simply an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire. Section 16 goes on to exempt any such acts, conducted in private, by three classes of persons being either consenting adults of the opposite sex or children. Persons of the same sex who engage in such acts, even in private, are not exempted and as such may be liable to imprisonment if convicted. 8. In these instances, with respect to both of these sections, consent cannot be used as a defence. 9. The claimant seeks a declaration that sections 13 and 16 of the Act are unconstitutional, illegal, null, void, invalid and are of no effect to the extent that these laws criminalise any acts constituting consensual sexual conduct between adults. Alternatively, the claimant also seeks a declaration that: 9.1. Section 4(a): the right of the individual to liberty and security of the person and the right not to be deprived thereof except by due process of law; 9.2. Section 4(b): the right of the individual to equality before the law and protection of the law; 9.3. Section 4(c): the right of the individual to respect for his private and family life; and 9.4. Section 4(i): the right to freedom of thought and expression; Page 4 of 57 10. The claimant also sought a declaration that sections 13 and 16 of the Act contravene section 5(2)(b) of the Constitution, which prohibits Parliament from imposing or authorising the imposition of cruel and unusual treatment or punishment. The claimant’s position on relief pursuant to sections 4(a) and 5(2)(b) of the Constitution was however reserved to be articulated if the matter was to progress further. 11. The Act was passed by a three-fifths majority and provides, pursuant to section 13(1) of the Constitution, that it is to have effect even though inconsistent with sections 4 and 5 of the Constitution. That does not protect the Act from challenge but successful challenge is dependent on a finding that the Act is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. The defendant however asserted that the Act was saved from challenge as it is an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by the Constitution in a manner in which or to an extent to which