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Former premier’s discrimination claims dismissed by lawyer

Former premier Ewart Brown (Photograph by Akil Simmons)

Claims by former premier Ewart Brown that he was the victim of discrimination have been denied by a senior lawyer.

Attorney Sean Dunleavy also dismissed allegations by Dr Brown’s legal team that an investigation into him was unconstitutional because of the supposed involvement of senior legal officials — including the Attorney-General, the Director of Public Prosecutions and the Deputy Governor.

Dr Brown, who was premier between 2006 and 2010, has launched a civil action against the DPP, the Attorney-General and the Deputy Governor, claiming that the inquiry was unconstitutional.

In testimony last month, he claimed that he was targeted “from Day 1” because of his political views.

He said: “They identified me early on in my political career as someone who would be outspoken on issues of race. It was clear that I was going to be targeted from Day 1. I felt that I was going to be targeted until the day I die because of my views, especially my views on race.”

But in court last week, Mr Dunleavy, who is representing the Attorney-General, the DPP and the Deputy Governor, rebutted those allegations, claiming that Dr Brown had failed to provide any evidence to support them.

Producing a mountain of case law and authorities, Mr Dunleavy noted that, in order to prove a case of discrimination, a complainant must draw a comparison with other individuals — real or hypothetical — who had been treated differently and more favourably.

Pointing out that Dr Brown had failed to provide examples of “a comparator”, Mr Dunleavy said: “If the applicant can’t even imagine a different scenario then they’re sunk because they’re claiming discrimination but they’re not comparing them to anyone else, real or hypothetical.

“The question of different treatments of different persons is not satisfied.

“You need to be clear on what you are alleging, and then you need to support what you are alleging with evidence and it is our position that neither of those are done here.”

Dr Brown had also claimed that his 2009 decision to bring four Uighurs to Bermuda from the US prison camp at Guantánamo Bay at the request of President Barack Obama was a political act that soured his relationship with Sir Richard Gozney, then the Governor, and prompted a police inquiry — an investigation that the Governor had shown “a personal” interest in.

From that point on, Dr Brown, who is represented by King’s Counsels Delroy Duncan and Jerome Lynch, said he felt “targeted” because of his political views.

But in court, Mr Dunleavy rebutted that allegation. He pointed out that, although there may have been a difference of opinion between the two men over the affair, the dispute centred around questions of law rather than a difference in political opinion.

The Governor had argued that the incident came under the watch of the Foreign Office rather than the Bermuda Government and that Dr Brown had acted beyond his authority.

Mr Dunleavy said: “That is not a political opinion, it is an opinion of the law.

“It is the inclusion of the word ‘personal’ that we say is creating flaws in their claim, because not only is the applicant saying that all these colonial people act alike and as a unit, but they’re also saying ‘they’re out to get me for my personal qualities and the way I conduct myself’.

“We will show that there is no evidence to show that this is personal and an abundance of evidence to show that the issue is not about the applicant — it is about the political health of Bermuda.

“There is nothing personal about this — this was the Governor’s job.”

Mr Dunleavy also dismissed allegations by Dr Brown that the Strategic Oversight Group — a committee of high-ranking officials set up in 2014 — had spearheaded the probe into the former premier.

Ginny Ferson and Rory Field, the Deputy Governor and the Director of Public Prosecutions at the time, were members of the group.

Mr Dunleavy said: “Who says that this investigation has been directed and controlled by the SOG? This is drafted and submitted in a way that makes assumptions without evidence. As such there can be no actual comparator.

“They are conjuring up the most sinister version of this. They are assuming no presumption of regularity — in fact they’re assuming a presumption of irregularity.

“They are accusing persons of mala fides by setting up a group with the sole purpose of investigating somebody but they aren’t providing evidence of mala fides.

“These response submissions are assuming findings that this court has not made at this stage and in some cases cannot make.”

“We cannot work on the assumption that this investigation was started by the SOG. This was a police investigation and the SOG’s role in this was to audit for best practices, support in terms of resources, make sure it was ethical, make sure risk assessments were done, that persons affected might be protected.

“This was something that Bermuda had not faced before and so needed to approach it in the best practice manner.”

Mr Dunleavy also rejected claims by Dr Brown that there was a “link” between the investigating authorities and the One Bermuda Alliance, which was in office between December 2012 and July 2017.

He said that financial documents showed that the investigation was struggling for funding under the OBA administration.

He said: “According to this they’re at risk of this stopping entirely. This is an ongoing issue and if there’s one way to end an investigation it is to underfund it.

“So they are on the wrong end of the argument that the Government was doing everything it could to make sure that this investigation was pursued — they were an obstacle.”

Referring to Dr Brown’s testimony, Mr Dunleavy said: “There was an abundance of opinion on how the applicant sees the world and motivations and feelings that he attributes to those persons in colonial positions.

“That is not evidence of anything other than the applicant’s world view, it is his opinion. These are simply his opinions on how the world looks.

“The applicant is entitled to that world view. He can think what he likes about people but that is not evidence of what individual people in individual roles are doing or thinking, or what their agenda is.

“This part of the problem they’re having with their case is that they are taking feelings and opinions and saying that that is evidence — that that is enough. They’re saying ‘I know who these people are, I know what they act like, I know what they think of me, therefore bad intentions, therefore they’re after me’.

“If that is the narrative that is being proposed here, that needs to be backed up with evidence. If that is true, then show that it is true.”

The hearing, which is being held before Acting Puisne Judge Martin Forde, resumes next month.