Judge orders review of Frederick’s case against PM

The decision of Chief Magistrate Sonya Young not to issue summonses to Prime Minister Dr. Ralph Gonsalves in two private complaints brought by Senator Vynnette Frederick{{more}} will be reviewed by a judge on November 30.

High Court judge Gertel Thom, in a decision handed down on December 15, said that Frederick has an arguable case, with a realistic prospect of success, and that the Chief Magistrate “misdirected herself” in finding that two of the essential ingredients of the offence were not evident at face value.

Frederick filed her complaints against the Prime Minister on January 11, 2011, about a month after the General Elections of December 13, 2010, in which she unsuccessfully contested the West St. George seat on a New Democratic Party ticket.

Her complaints stem from statements made by Dr. Gonsalves at a political meeting on August 29, 2010, as follows: “They say she is a tomboy”. According to the court document, the Prime Minister then added: “Ah mean, Bayliss would be a very unfortunate fellow if he send a daughter to study law, and came back and get a son, … a tomboy”.

In her ruling, the Chief Magistrate said that she found that the statement complained of was not a statement of fact and the statement did not relate to the personal character or conduct of Frederick.

Justice Thom, however, was of the view that a statement of fact, stated in the form of a rumour, does not prevent it from being a statement of fact. The judge said it could be successfully argued that since Dr. Gonsalves did not simply stop at saying “They say she is a tomboy” shows the context in which he was using “tomboy” was not simply a “tomboy”, but a male. According to the judge, the ordinary and reasonable person in the constituency would find the statement to mean that Frederick left to study law a female and returned a male.

“It could also be successfully argued that a statement that a woman is a male relates to her sexual orientation, and that a statement relating to a person’s sexual orientation, their sexuality, relates to the person’s personal character or conduct. It relates to moral conduct.

“In the circumstances of this case, I find that Ms. Frederick has an arguable case with a realistic prospect of success that the Chief Magistrate misdirected herself in finding that two of the essential ingredients of the offence were not prima facie present. I find there is no reason to set aside the order granting leave,” Justice Thom said.

The complaints brought by Frederick against Gonsalves in January were for making a false statement and the other for publishing a false statement.

The complaints were brought under Section 51(3) of the Representation of the People Act, which says that any person who before or during an election for the purpose of affecting the return of any candidate or prospective candidate makes or publishes false statements in fact in relation to the character or conduct of such candidate, is guilty of an illegal practice and liable to a fine of $750 and to imprisonment of one year.

The Act says a person convicted for this offence shall for five years from the date of conviction be incapable of being registered as a voter, voting in an election or being elected or appointed as a Member of the House of Assembly. Additionally, if the person who has been convicted was elected or appointed before his conviction, he cannot retain his seat as a Member of the House.

After Frederick filed her complaints, Chief Magistrate Young issued a cetificate of refusal in relation to both complaints on January 12. At the request of Frederick’s attorney, on January 17, Young gave reasons for her decision not to issue the summonses.

On March 17, Justice Frederick Bruce-Lyle granted Frederick leave to seek judicial review of the decision of the Chief Magistrate.

Frederick filed her claims seeking judicial review on May 13. However, on May 31, the Chief Magistrate filed an application that Frederick’s claims be struck out. On June 16, Frederick filed an application to strike out the Chief Magistrate’s application.

Justice Thom, in her ruling of Tuesday, November 15, dismissed Young’s applications.

She also ordered that the Chief Magistrate pay Frederick costs in the sum of $5000.