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Premier pressed ministers for pepper spray lawsuit resolution

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December 2, 2016: police deploy pepper spray in a clash with protesters at the gates to the House of Assembly (File photograph by Akil Simmons)

The Premier gave two Cabinet ministers a tight deadline to bring about a “definitive resolution” to a civil lawsuit brought by protesters who were pepper-sprayed by police five years ago today.

David Burt issued an e-mail decree to Attorney-General Kathy Simmons and Wayne Caines, then the Minister of National Security, on Tuesday, January 8, 2019, according to records newly released to The Royal Gazette under public access to information.

“This saga has been going on for far too long,” wrote the Premier. “Ministers, I want a definitive resolution for this issue by the end of the week.”

Mr Burt’s e-mail and others contained in the Pati disclosure were partially redacted by the Ministry of National Security on the grounds they contained confidential and personal information.

But the Premier’s frustration is clear in the line: “If we can deal with matters relating to economic substance … I cannot for the life of me understand why this is taking so long.”

Mr Burt was Opposition leader on December 2, 2016 and was one of the organisers of the protest against a new airport deal, along with union leaders.

Demonstrators blockaded Parliament to prevent MPs from debating two Bills and some were pepper-sprayed by police.

Twenty three people who claimed to have been injured later launched civil proceedings against the independent Police Complaints Authority.

The legal row was resolved a few weeks after the Premier sent his January 2019 e-mail, when the Ministry of National Security paid out $225,000 in a confidential settlement to 28 demonstrators, almost exactly a year after the lawsuit was filed.

The Pati disclosure confirms for the first time the full amount paid to the protesters and their lawyers, Trott & Duncan, and reveals that the Government retained a private law firm to provide advice described as “urgent”.

But the ministry refused to release the names of the 28 who benefited from the public funds, one of whom got $48,000 and 27 of whom got $4,200.

It also redacted the names of the non-government lawyers who worked on the case.

The payouts to protesters totalled $161,400, with the additional $63,600 understood to be legal fees.

The records released under Pati include a reference by the private law firm hired by the Government to an “outstanding claim” brought by a person whose name was redacted – a claim which has the potential to be “made live again”.

That claimant’s identity is not known.

The bundle of correspondence shows the pressure exerted on government ministers, including the Premier, and the discussions civil servants had about where the settlement cash would come from.

A lawyer for the protesters wrote an e-mail to the lawyer hired by the Government on January 3, 2019, asking: “Any idea when we will settle the litigation, discontinue the action, so my clients can get paid?

“I know you have just been instructed; however, my clients are really frustrated with the pace at which the settlement is moving.”

Five days later, the Premier received an e-mail asking him to “look into this matter”. The sender, whose name was redacted but who appears to be the protesters’ lawyer, wrote: “Something seems amiss.”

Later that day, Mr Burt sent his demand for swift resolution to Ms Simmons and Mr Caines.

On January 21, 2019, another e-mail was sent to the Premier noting that the matter was “still not settled” despite his earlier e-mail directive to the two ministers.

The sender, whose name was again redacted, wrote: “Not sure what it is going to take to FINALLY RESOLVE this matter.

“Premier, whatever you can do to assist would be much appreciated, thank you.”

David Burt on December 2, 2016 (Photograph by Akil Simmons)

Mr Caines wrote an e-mail the next day insisting the matter remained a priority but adding: “I will not, however, rush through the process and leave the Government exposed.”

The sender replied: “With respect, no one wants the Government to rush through the process. However, this matter has taken far too long to resolve.”

Mr Caines responded: “You are right, it has taken too long … This is significant for all of us. We will work really hard to have this sorted this week.”

Deputy Solicitor-General Shakira Dill-Francois wrote to the minister later that day, sharing with him the Attorney-General’s advice on the “best course of action”.

Her e-mail referred to settling with “the 27 applicants forthwith” but the rest of the advice, contained in three bullet points, was redacted.

National security permanent secretary Collin Anderson then asked former Financial Secretary Anthony Manders and Cabinet Secretary Marc Telemaque “which fund or cost centre” the $225,000 should come from.

The late Mr Manders told him: “For the sake of expediency, you can use the Contingency Fund to make this payment, but the money needs to be replenished at the year-end.”

Mr Anderson asked how it would be replenished.

He was told by Mr Manders it would need to come from national security ministry funds or, if the funds were not there, a supplemental request for funds would have to be put before MPs.

“It is recognised that this is an extraordinary payment and out of your ministry’s control …,” wrote Mr Manders.

“The [finance] minister is aware. My understanding is legally we have to pay this so there is no choice.”

On February 5, 2019, a sender, whose name was again redacted, e-mailed Mr Anderson and Mr Caines to ask when the funds would be paid to Trott & Duncan.

The permanent secretary replied it would be February 12, 2019 at the latest.

The correspondence released so far under Pati ends there, although the ministry is still processing the Gazette’s request, with a further decision on disclosure due by January 12.

The ministry’s information officer told the Gazette the money was paid back into the Government’s Contingency Fund from the Royal Bermuda Regiment’s budget, which falls under national security.

The amount paid by taxpayers to the private law firm hired by the Government is not revealed in the correspondence.

But the firm’s proposed agreement with the Government was for two senior counsel, charging $650 and $550 an hour, respectively, as well as a para legal on $150 an hour.

Brian Myrie, Crown counsel at the Attorney-General’s Chambers, queried that in an e-mail on January 17, 2019, to the comptroller at the Ministry of National Security.

He wrote: “ … there is no need for two senior counsel on this matter and … there should be a project fee amount for the opinion/advice rather than an hourly rate (e.g. $5,000 – $10,000).”

Secrecy has largely surrounded the settlement to the December 2, 2016 protesters (see separate article), who filed judicial review proceedings in the Supreme Court against the PCA.

The plaintiffs took issue with the authority’s 2017 inquiry into the clash between police and protesters, claiming committee members failed to investigate their individual allegations of assault against police before concluding that officers on the ground were not at fault for using incapacitant spray on a crowd deemed “hostile”.

Mr Burt did not answer questions from the Gazette about why he got involved in the lawsuit matter and why he wanted it resolved swiftly in January 2019.

But he released a statement, reported in full in today’s edition, about the protest and the airport deal which sparked it.

“The sums paid to those persons injured on that day pale in comparison to the tens of millions of dollars paid to Aecon thanks to the One Bermuda Alliance’s reckless agreement made more to benefit a Canadian company than the people of Bermuda,” he said.

Mr Caines, who resigned as minister in July 2020 and is now president of Belco, did not respond to a request for comment.

Nor did Delroy Duncan QC, director of Trott & Duncan.

* To read the Pati disclosures, click on the PDFs under Related Media.

The civil complainants:

The Police Complaints Authority received 26 complaints about police conduct at the December 2, 2016 protest, prompting it to launch an inquiry.

There were 23 plaintiffs named in the lawsuit filed against the PCA on February 8, 2018.

They were Richard L Brangman, Lily May Bulford, Anthony Burgess, Peggy A W Burns, Ankoma George Cannonier, Desnell Davis, Lionel Ellsworth Davis, Patricia M D Fox, (Elder) Patrick J Hayward, David B Jones, Angela Marie Jones, Craig Looby, Antoine Robert Minors, Glen K Simmons, Kalvin D Simmons, Doreen L Smith, Marie C Smith, Willis Steede, Lynda Sharon Swan, Linda Marion Rochelle Trott, Deborah Riley Tuzo, Winnae Wales and Vivian Esme Williams.

Deputy Solicitor-General Shakira Dill-Francois said in an e-mail on January 22, 2019 that the Attorney-General recommended settling with “27 applicants”.

The following month, settlement agreements were executed with 28 people, who all got $4,200, apart from one person, who got $48,000.

Mr Looby told the Gazette he did not accept a payout.

That suggests six additional people – whose identities remain a mystery – were added to the civil claim after it was first filed.

A request from the Gazette to the Supreme Court to view the civil court file received no response.

The criminal cases:

Three of the civil plaintiffs – Ms Bulford, Mr Burgess and union organiser Glen Simmons – were charged with criminal offences in connection with the protest.

They were bound over to keep the peace for six months in May 2017, along with seven others: Bermuda Industrial Union president Chris Furbert, the Reverend Nicholas Tweed, Arnold Smith, Alafia Henry, Chris Furbert Jr, David Saltus and Neville Goddard.

Mr Saltus pleaded guilty to a charge of assaulting an officer with an umbrella and got a six-month conditional discharge.

Mr Minors and three others – Sherman Hill, Ernest Trott and Dornielle Farrel – were charged with obstructing police at the protest.

It was not reported at the time but Cindy Clarke, the Director of Public Prosecutions, confirmed to the Gazette last week that the case against those four was dropped by prosecutors in June 2017.

She said the nolle prosequi – the notice to drop the case – was at “the sole discretion of the DPP at the time” who was Larry Mussenden.

It is believed that only one demonstrator was convicted of a crime in connection with the protest.

Edmund Smith was convicted of assaulting Inspector Scott Devine outside the House of Assembly by striking the officer repeatedly in the legs with a wooden walking stick.

He was sentenced to a year in jail by a magistrate in May 2017.

Mr Mussenden, now a Puisne Judge, declined to comment last week on why he decided to drop prosecutions against 14 protesters.

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Published December 02, 2021 at 9:31 am (Updated December 02, 2021 at 10:49 am)

Premier pressed ministers for pepper spray lawsuit resolution

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