In a Thursday judgment that probed the limits of the 2007 Constitution’s protection of family rights, Justice Vicki Ann Ellis upheld the deportation order of a Jamaican father convicted of indecent assault in 2014.
Peter Gray, a continuous resident of the territory since 2010, had appealed his deportation on the basis of sections 19 and 20 of the 2007 Constitution, which protect the right to private and family life and the right to marry and found a family, respectively.
In July 2012, Mr. Gray allegedly entered his friend’s girlfriend’s bedroom and forced his head between her legs until she started to scream. In 2014, he was sentenced to 15 months in prison for indecent assault of a woman and 10 months for criminal trespassing, according to the judgment. The sentences ran concurrently.
The Governor’s Office served Mr. Gray with a deportation order in April 2015, which his attorney challenged. However, Governor John Duncan upheld his decision, and Mr. Gray unsuccessfully took his case to court.
Constitution
According Ms. Ellis’s judgement, the main arguments of the case surrounded whether Mr. Duncan’s order disproportionately interfered with Mr. Gray’s constitutional family rights.
The Immigration and Passport Act allows the governor to deport residents convicted of any offence punishable by at least three months in prison.
It also permits him to deport those “whose presence in the territory would in the opinion of the governor, acting after consultation with the chief immigration officer, be undesirable and not conducive to the public good.”
Both Mr. Gray’s lawyers and the Crown agreed that the governor was within his rights to serve a deportation order in Mr. Gray’s case.
However, Mr. Gray’s lawyers argued that upholding the order violated his constitutional rights.
Section 19 (1) of the Constitution states that “every person has the right to respect for his or her private and family life, his or her home and his or her correspondence, including business and professional communications.”
Section 20 (1) guarantees the right to marry and found a family.
However, section nine of the Constitution puts limits on those rights, preventing them from taking away from the rights and freedoms of others or the public interest.
This balance, Ms. Ellis explained, formed the crux of the debate.
“The governor clearly has the power to deport a non-national convicted of serious criminal offences in order to maintain and secure the interests of public safety, public order, public morality or public health, to protect the rights and freedoms of other persons, and to further the prevention and detection of crime,” she wrote in her judgment. “But there are circumstances where the expulsion will give rise to a violation of fundamental constitutional rights.”
Arguments
Mr. Gray’s lawyers — Ruth-Ann Richards and Christina Hart — used various aspects of his complicated family situation in an attempt to prove that the deportation would violate those rights.
In 2010, Mr. Gray fathered a daughter in the territory with a belonger with whom he no longer has a relationship. Though he did not live with his daughter and had no evidence of providing her with regular financial assistance, Mr. Gray’s lawyers argued that being deported would threaten his close personal relationship with her.
However, the Crown — represented by Maya Barry — argued that there was little evidence of his involvement in her day-to-day care and that physical separation would not make their current relationship impossible.
Mr. Gray has also been in a continuous six-year relationship with a long-time resident from St. Kitts, who along with her three daughters filed for the appeal as co-complainants.
However, Ms. Ann-Ellis tossed out two of the daughters’ claims because they are adults, and therefore needed to prove that they received financial assistance from Mr. Gray to be considered part of his “family life,” which they could not do, according to the judgment.
The St. Kitts national — a small-business owner and 23-year resident, according to the judgment — is also still married to someone else, and did not show evidence of any attempts to file for divorce, undermining their argument that Mr. Gray’s deportation would violate their right to marry, according to Ms. Ellis.
“Moreover, they have not established that [Mr. Gray’s] deportation would prevent him from marrying outside of the Virgin Islands,” she wrote in the judgment.
Mr. Gray’s counsel argued that a move to Jamaica would be too difficult for Mr. Gray’s partner and her one remaining underage daughter due to the financial, social and cultural hardships it would create.
Therefore, they argued, deporting Mr. Gray would forcibly break up their family.
Ms. Barry, however, countered that they did not adequately address the possibility of moving to St. Kitts as a family, because the St. Kitts national’s connections there would presumably make such a move easier.
Ms. Ellis agreed with Ms. Barry’s assessment, according to the judgment.
Possibility of reoffending
Mr. Gray’s lawyers also argued that he had reintegrated into society seamlessly and did not pose any realistic threat of reoffending.
“He’s hardly a one-man rise in crime,” Ms. Richards said during the case’s final court appearance, adding, “He had made it very clear to the court that … his prison sentence was the darkest time of his life.”
Ms. Barry argued that deportation was not just about preventing recidivism, but also about sending a message to non-belongers that serious crimes will get them kicked out of the territory.
In her judgment, Ms. Ellis agreed.
“In the Court’s judgment there is a significant public interest in expressing the territory‘s revulsion for amoral acts committed by [Mr. Gray],” she wrote. “There is also a clear public interest in deterrence.”
Having found Mr. Gray’s argument lacking, Ms. Ellis sided with the Crown and upheld his deportation.
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