Sascha Wil­son

Se­nior Re­porter

sascha.wil­son@guardian.co.tt

Ap­palled and dis­gust­ed over the treat­ment of a Venezue­lan child de­tained at the Ch­aguara­mas He­li­port for 456 days and the con­duct of State of­fi­cials, a High Court judge has award­ed him $2.4 mil­lion in com­pen­sa­tion.

In a 114-page land­mark judg­ment yes­ter­day, Jus­tice Mar­garet Mo­hammed said the sig­nif­i­cant award is a re­flec­tion of the court’s dis­ap­proval of the “egre­gious con­duct”, of the de­fen­dants, name­ly the Chief Im­mi­gra­tion Of­fi­cer and At­tor­ney Gen­er­al. She al­so or­dered costs and in­ter­est.

The judge said, “The de­fen­dants must be pun­ished for such ap­palling con­duct and the court must send a strong mes­sage in or­der to de­ter the de­fen­dants, their ser­vants and/or agents from re­peat­ing the con­duct as was demon­strat­ed in this ac­tion.

“This is par­tic­u­lar­ly im­por­tant, as there are no civ­il or crim­i­nal penal­ties which would be vis­it­ed up­on the de­fen­dants, their ser­vants and or agents. It is al­so shock­ing that this ap­palling con­duct was com­mit­ted by the State, which has a le­gal oblig­a­tion to pro­tect all mi­nors whether they are cit­i­zens of Trinidad and To­ba­go or mi­grants.”

The child, then 13 years old, and his moth­er were among a group of mi­grants de­tained when they re­turned to Trinidad three days af­ter be­ing de­port­ed to Venezuela in No­vem­ber 2020.

The mi­nor, by his kin and moth­er, sued the State, seek­ing dam­ages, ag­gra­vat­ed and ex­em­plary dam­ages, in­clud­ing in­ter­est, for his un­law­ful de­ten­tion at the He­li­port, from the pe­ri­od De­cem­ber 15, 2020, to March 16, 2022.

The moth­er and son ob­tained three in­junc­tions pre­vent­ing their de­por­ta­tion un­til the de­ter­mi­na­tion of their case. In March 2022, the Privy Coun­cil found that the mi­nor’s de­ten­tion was un­law­ful, as there was no de­por­ta­tion or de­ten­tion or­der is­sued in his name. The Privy Coun­cil re­mit­ted the is­sue to the court, which had or­dered their re­lease on Ju­ly 29, 2022.

They were rep­re­sent­ed by at­tor­ney Ger­ald Ramdeen, in­struct­ed by Dayadai Har­ri­paul.

In award­ing $1 mil­lion in ex­em­plary dam­age, Jus­tice Mo­hammed said she was of the view that the con­duct of the de­fen­dants was ex­cep­tion­al and the unique facts of the case re­quired her to make an award pro­por­tion­ate to the de­fen­dants’ egre­gious con­duct.

“In this re­gard, a sig­nif­i­cant award for ex­em­plary dam­ages is nec­es­sary in or­der to show the court’s dis­ap­proval for the de­fen­dants’ con­duct, to act as a de­ter­rence and to pun­ish the de­fen­dants. In the cir­cum­stances of the in­stant case, the re­quire­ment of mod­er­a­tion is over­rid­den by the greater du­ty to pro­tect the ad­min­is­tra­tion of jus­tice in the mak­ing of an award of ex­em­plary dam­ages.”

The judge said the de­fen­dants knew from the de­sign stage of the He­li­port and through­out the boy’s de­ten­tion that the He­li­port was not suit­able to de­tain any mi­nor. She added that they were aware of their un­law­ful ac­tions but chose to con­tin­u­ous­ly and sys­tem­at­i­cal­ly ig­nore any rec­om­men­da­tions to im­prove the con­di­tions for the child dur­ing his de­ten­tion. She said the de­fen­dants abused their pow­er by ig­nor­ing the rec­om­men­da­tions of Dr Dowlat, the As­sis­tant Chief Staff Med­ical Of­fi­cer.

As a re­sult, the judge said this caused suf­fer­ing and harm to the teenag­er, as he was a mi­grant child. The judge added that the de­fen­dants had the op­por­tu­ni­ty on two oc­ca­sions to mit­i­gate the harm be­ing caused to the child by not op­pos­ing his re­lease from de­ten­tion, but chose not to.

Mo­hammed said they al­so failed to re­view the de­ci­sion to de­tain him and took no steps to mit­i­gate the cir­cum­stances and con­di­tions of his de­ten­tion which be­came worse.

The judge de­scribed as “con­temp­tu­ous con­duct” the de­fen­dants’ at­tempt to de­lib­er­ate­ly and sys­tem­at­i­cal­ly con­ceal ev­i­dence, and the re­ports that the He­li­port was not suit­able for the de­ten­tion of mi­nors, as this would have re­sult­ed in a less favourable award for dam­ages.

She said, “In my opin­ion, this con­duct by the de­fen­dants is shock­ing and de­plorable and can­not be con­doned by this court.”

The judge not­ed that an­oth­er rea­son for the sig­nif­i­cant award was that the de­fen­dants un­law­ful­ly de­tained the child for 456 days, vi­o­lat­ing his right to lib­er­ty and to fam­i­ly life.

The judge added that the child’s ex­po­sure to ex­plic­it sex­u­al acts dur­ing his de­ten­tion al­so vi­o­lat­ed his in­no­cence as a mi­nor and cor­rupt­ed his ado­les­cence. The judge said the de­fen­dants “ex­ploit­ed the tremen­dous im­bal­ance of pow­er be­tween them and the claimant” by keep­ing him in con­di­tions which they al­ways knew were un­suit­able and which vi­o­lat­ed his rights as a mi­nor.

The judge or­dered the de­fen­dants to pay $900,000 as gen­er­al dam­ages and $500,000 as ag­gra­vat­ed dam­ages. Mo­hammed al­so or­dered the de­fen­dants to pay in­ter­est at the rate of 2.5 per cent per an­num on the award of gen­er­al and ag­gra­vat­ed dam­ages from the date of ser­vice of the claim un­til the judg­ment. The de­fen­dants were or­dered to de­posit the sums in­to court and the reg­is­trar was di­rect­ed to place them in­to a high in­ter­est-bear­ing ac­count for the mi­nor’s ben­e­fit. The de­fen­dants were al­so or­dered to pay the claimant’s costs of $169,000.