Knowles v The Attorney General; Leach v The Attorney General
| Jurisdiction | Belize |
| Judge | Michelle Arana |
| Judgment Date | 30 June 2017 |
| Court | Supreme Court (Belize) |
| Docket Number | CLAIM NO. 50 OF 2016 |
| Date | 30 June 2017 |
IN THE SUPREME COURT OF BELIZE, A. D. 2016
CONSOLIDATED CLAIMS
The Honourable Madam Justice Michelle Arana
CLAIM NO. 50 OF 2016
CLAIM NO. 51 OF 2016
In the Matter of Section 20(3), 9 and 14 of the Constitution, Chapter 4 of the Substantive Laws of Belize
and
In the Matter of a Case Stated by Rohn Knowles challenging the constitutionality and legality of extradition proceedings by the Government of United States of America
In the Matter of Section 20(3), 9 and 14 of the Constitution, Chapter 4 of the Substantive Laws of Belize
And
In the Matter of a Case Stated by Kelvin Leach challenging the constitutionality and legality of extradition proceedings by the Government of the United States of America
Mr. Godfrey Smith, SC, for the Claimant Rohn Knowles
Mr. Eamon Courtenay, SC, and Iliana Swift for the Claimant Kelvin Leach
Mr. Nigel Hawke, Acting Solicitor General, and Trienia Young, Senior Crown Counsel, for the Defendant
Constitutional Law - Extradition — Whether the evidence in support of the request for extradition was obtained in violation of the claimants' right not to be subjected to arbitrary search and seizure guaranteed by section 9 of the Belize Constitution — Whether the evidence in support of the requests was obtained in violation of the claimants' right to privacy guaranteed by section 14 of the Belize Constitution Chapter 229 of the Laws of Belize.
On September 12, 2014 the Government of the United States of America requested the Provisional Arrest of the Rohn Knowles and Kelvin Leach, the Claimants pursuant to Article 9 of the Extradition Treaty between the Government of the United States and the Government of Belize. This Treaty was executed on March 30 th, 2000. The United States had until November 14 th, 2014 to submit the formal request for extradition in accordance with Article 9(4) of the Treaty. On September 15 th, 2014 the Honourable Minister of Foreign Affairs issued an Order to the Chief Magistrate for Warrants of Apprehension of the Claimants who were classified as fugitives of the United States of America. On September 19 th, 2014, both Claimants applied for bail by way of petition to the Supreme Court of Belize. Hanomansingh J. granted the Claimants bail in the sum of $100,000.00 with one Surety. He also attached conditions of bail whereby the Claimants were not allowed to leave Belize, they had to surrender all travel documents to the Court and they had to report to Queens Street Police Station every Monday and Friday. The United States then submitted the official extradition request on November 13 th, 2014. When the extradition proceedings were about to commence before the Chief Magistrate, the documents were not authenticated and were only tendered for identification because of a constitutional objection. The Claimants contend inter alia that their fundamental rights have been infringed and that the extradition proceedings are an abuse of process. The matter now comes before this court for its determination by way of a case stated.
These are the issues of law which arise for the court's determination as articulated in the written submissions of Godfrey Smith, SC, filed on behalf of the Claimants:
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i) Whether the evidence in support of the Requests was obtained in violation of the Claimants' right not to be subjected to arbitrary search and seizure guaranteed by section 9 of the Belize Constitution?
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ii) Whether the evidence in support of the Requests was obtained in violation of the Claimants' right to privacy guaranteed by section 14 of the Belize Constitution?
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iii) Whether the evidence in support of the Requests was illegally obtained in violation of the Interception of Communications Act?
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iv) Whether the extradition proceedings are an abuse of process?
Legal Arguments on behalf of the Applicant
ISSUE NO. 1: Whether the evidence in support of the Requests was obtained in violation of the Claimants' right not to be subjected to arbitrary search and seizure guaranteed by section 9 of the Belize Constitution?
Mr. Smith, SC, argues on behalf of the Claimants that the interception of communications in the absence of valid judicial authorization is a flagrant violation of the Claimants' constitutional rights. He contends that the evidence in support of the Extradition Requests consists of transcripts of telephone conversations and videos recorded by an undercover federal agent pursuant to US legislation which supports the regime of “ participant surveillance”. He states that the Government cites 18USC 2518 which permits the interception of oral or electronic communication so long as one of the parties to the communication has given prior consent. Learned Counsel submits that the evidence also consists of recordings of telephone conversations and emails obtained through search warrants granted by United States District Court authorizing the interception of telephone conversations made from Belize to the Bahamas. He argues that the right to protection against arbitrary search and seizure is a right which was elevated and underscored by the Belize Legislature through its inclusion in section 9 of Chapter II Protection of Fundamental Rights and Freedoms in the Belize Constitution which states:
“9(1) Except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes reasonable provision -
(a) that is required in the interests of defence, public safety, public order, public morality, public health, town and country planning, the development and utilization of mineral resources or the development or utilization of any property for a purpose beneficial to the community;
(b) that is required for the purpose of protecting the rights or freedoms of other persons;
(c) that authorizes an officer or agent of the Government, a local government authority or a body corporate established by law for public purposes to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax, rate, or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or to that authority or body corporate, as the case may be; or
(d) that authorizes, for the purpose of enforcing the judgment or order of the court in any civil proceedings, the search of any person or property by order of a court or entry upon any premises by such order.”
Mr. Smith, SC, concedes that this right is not absolute and that the demands of law enforcement and prevention of crime may necessitate its interruption. He contends that constitutional jurisprudence has consistently emphasized the importance of judicial intervention in striking a balance between these interests. In Thanh Long Vu v Her Majesty and the AG of Ontario [2013] 3 R.S.C. 657 where the Supreme Court of Canada described the need for judicial involvement in imperative terms at paragraph 22 as follows:
“… the police must obtain judicial authorization for the search before they conduct it, usually in the form of a search warrant. The prior authorization requirement ensures that, before a search is conducted, a judicial officer is satisfied that the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance the goals of law enforcement.”
Mr. Smith, SC, also cites the Belize Supreme Court case of Jitendra Chawla (AKA) Jack Charles v. The AG SCA No. 208 of 2002 which reiterated the significance of judicial authorization when restricting the right against arbitrary search and seizure. The Supreme Court found that section 87 of the Customs Regulations Act was unconstitutional on the grounds that a Writ of Assistance authorizing search and entry did not provide for any procedure or requirement to obtain judicial authorization. Learned Counsel also submits that judicial authorization in cases of interception of communication is even more important due to the inherent secrecy of the operation. He cites R v. Duarte [1990] 1 S.C.R. 30 where the courts have analyzed the constitutionality of “ participant surveillance” regime in the Canadian legislation which dispensed with the need for judicial authorization. In holding that the constitutional right does impose an obligation on police to seek prior judicial authorization, the Court highlighted the function of such authorization in balancing competing interests:
“… this represents an acceptable balance in that the imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted. It becomes possible for the individual to call the state to account if he can establish that a given interception was not authorized in accordance with the requisite standards.”
The court went on to warn against the serious risks faced when the obligation to seek authorization is dispensed with and the decision to intercept is left to absolute discretion of the state:
“… if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of...
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