Double trouble for Covid-19 restrictions as two legal challenges launched
A legal challenge that claimed strict curfew laws were unconstitutional and denied people a “reasonable excuse” defence has been launched in the Supreme Court.
Marc Daniels, the lawyer for Kinte Smith, who took action after he was charged with a curfew breach, said scores of people had been fined as much as $3,000 in Magistrates’ Court for curfew breaches.
But Mr Daniels added that the Constitution guaranteed the right to freedom of movement.
Mr Daniels that the law tied the hands of Magistrates’ Court because it did not give them room to consider if someone had a reasonable excuse short of a medical emergency to be out past curfew.
The challenge came after Mr Daniels appeared for Kinte Smith, 35, from St George’s, who was charged last week with a breach of the earlier midnight to 5am curfew on January 12 in Hamilton Parish.
Mr Daniels said his client’s right to freedom of movement was infringed when he was stopped at a checkpoint.
He added that his client’s rights were further breached because, although he had a reasonable excuse, the law as written meant magistrates had limited scope when passing sentence.
Mr Daniels said: “We opine that the failure to include two words – 'reasonable excuse’ – in relation to alleged breaches of curfew or other specific regulations cannot be justified or necessary in the interest of public health to prevent, control or suppress the spread of Covid-19 in Bermuda, as the regulations are intended to achieve.”
He asked: “In light of the facts which are set out in the affidavit, can the Government reasonably justify the failure to allow individuals to raise a reasonable or lawful defence – beyond a medical emergency – to avoid being subject to fines or imprisonment for breaches of the curfew regulations?”
Mr Daniels said: “All we’re trying to do is find a reasonable balance to preventing those types of outcomes so that individuals are not subjected to significant fines if it’s not warranted.”
Mr Daniels declined to comment on Mr Smith’s reasons for being out after the curfew kicked in.
But he said it had been outlined in the affidavit.
He added: “There is a provision in the regulations that allows for medical or other emergencies, but if you don’t fall into the category of a medical or other emergency but you have a reasonable excuse then why are you being punished?
“The Government clearly appreciated that medical emergencies may arise and they sensibly added that as a ground of possible defence – but not every situation constitutes an emergency, but remains reasonable.”
The news meant the Government now faces two legal challenges to its Covid-19 safety regulations.
The Constitutional Freedom Group filed a summons in the Supreme Court yesterday to ask for a stay on Government plans to introduce controversial hotel quarantine rules, which the group claims discriminate against people who have not been vaccinated.
The group – led by Albert Brewster, Vincent Lightbourne, and Wendie Warren – said that the proposed laws, which are due to kick in on Sunday, violated the Constitution and the right to freedom of movement.
The eight-page summons was supported by the affidavits of two doctors – Henry Dowling and Amne Osserryan.
Anyone convicted of a breach of curfew faces a maximum penalty of a $6,000 fine for a first offence.
Further offences could result in a $10,000 fine and/or imprisonment for up to three months.
Continued offences have maximum fines of $1,000 for every day the offence occurs.
People who cannot pay fines up front can be given time to pay, but could also face community service or jail time as alternative sentences.
Mr Daniels said that the threat of a prison sentence made it very important to ask if a defendant had a reasonable excuse to be out past curfew.
He added that, if defendants did have an excuse, “why are punishing our people, especially in these economic times?”
He said that the Government Covid-19 regulations infringed upon constitutional rights “to varying degrees”.
Mr Daniels added: “Being permitted to purchase groceries only on assigned days, prohibitions on attending beaches, parks and railway trails and night time curfews – these policy decisions impact our freedom of movement.
“The 14 day quarantine at a government approved facility at one’s own expense that will soon come into force is also a significant infringement on the freedom of movement and freedom from arbitrary detention.”
• It is The Royal Gazette’s policy not to allow comments on stories regarding criminal court cases. This is to prevent any statements being published that may jeopardise the outcome of that case.