Sometimes the law is an ass because the law makers were asses!

[dropcap]O[/dropcap]n February 9, 2012 officers from the Royal Saint Lucia Police Force went to the home of Babonneau resident Cecil Toussaint armed with a warrant to search for controlled drugs at the premises of  “one Ras”. The search of Mr. Toussaint’s home uncovered no controlled drugs. However, the police found and seized a quantity of cash: EC$71,920.00; EUR 1,460.00; US$4,249.00 and CAD$20.00. In an attempt to have the money forfeited, pursuant to sections 49A, 49B and 49C of the Proceeds of Crime Act Chapter 3.04, the officers transported Mr. Toussaint to a police station where the money was counted in his presence. He was released the following day.

Officers returned to Mr. Toussaint’s residence on a subsequent occasion with a warrant, this time in the name of Cecil Toussaint, to search for evidence of money laundering. Again their search was fruitless. Mr. Toussaint, through his attorney, filed a constitutional motion against the Attorney General, the Commissioner of Police and the investigating police officer, a detective sergeant, challenging among other things: the constitutionality of the search of his residence; his arrest and detention; the seizure of the cash and the commencement of forfeiture proceedings pursuant to the Proceeds of Crime Act.

This summer, in determining the constitutionality of the search of Mr. Toussaint’s home, the court looked to Section 7 of the Constitution, entitled Protection from Arbitrary Search or Seizure. The law protects persons from the arbitrary entry and search, save in certain limited circumstances. These circumstances include where the search and seizure are in the interests of defence, public safety and public order, or are reasonably required for the protection of the rights of others.

The court went on to say that the requirement that a police officer obtain a warrant prior to searching a person’s home is a means by which the law protects the citizenry from arbitrary searches. The officer must give a statement on oath to a magistrate who issues the warrant authorizing the search. The court found that there was no evidence before it to suggest Mr. Toussaint was ever known as “One Ras”; that in Saint Lucia people who have dreadlocks are commonly referred to as “Ras” and that the warrant could have been directed to any number of individuals in the Babonneau community. The court concluded the search of the Mr. Toussaint’s property was unlawful.

This begs the question: What was the evidence given under oath which convinced the magistrate that there was sufficient cause to issue the warrant in the first place, and why was it not presented before the High Court? Though there is no requirement that officers seeking to obtain a warrant must put their statement under oath in writing, the implementation of such a requirement would perhaps encourage a greater level of accountability both on the part of the police officers and magistrates. The police would take greater care in conducting their investigations prior to giving information on oath to obtain a warrant and the magistrates would take greater care when considering the information provided to them by officers. The alternative is that a magistrate, in issuing a warrant, may be reduced to no more than a rubber stamp sanctioning the otherwise arbitrary and unconstitutional actions of the police.

Was Mr. Toussaint’s arrest lawful? The court found  there was reasonable cause for the officers to arrest Mr. Toussaint in circumstances where such a large sum of money was recovered and Mr. Toussaint’s sole explanation was that he owned a bus. In the circumstances the police officer formed a reasonable suspicion that the quantity of cash represented the proceeds of crime.

The final challenge by Mr. Toussaint was to the constitutionality of the Proceeds of Crime Act itself. Mr. Toussaint’s attorney argued that the jurisdiction vested in the magistracy under sections 29A, 49A, 49B and 49C of the Proceeds of Crime Act constituted an impermissible amendment of the jurisdiction of the Supreme Court, effected in a manner inconsistent with the provisions of Section 41 of the Constitution and therefore void, the Act having been passed by simple majority.

Reducing the argument to its most basic it was argued that at the time the amendment to the Proceeds of Crime Act was passed in 2010 parliament failed to follow the requirement of Section 41 of the Constitution which stipulates that no bill which affects the individual’s fundamental rights may be passed by parliament unless on its final reading it is supported by not less than three-quarter of all of the members of the House.

The effect of the 2010 amendment to the Proceeds of Crime Act was that the magistracy was given powers previously reserved for the High Court and those powers exceeded the jurisdiction allowed by the Code of Civil Procedure, which at the time was $5000.00. The court agreed with Mr. Toussaint’s attorney and declared that the Proceeds of Crime Act was unconstitutional: that it gave the magistracy an unlimited jurisdiction to seize and detain proceeds of crime and amended the legislation in a manner which limits the jurisdiction of the magistracy to that which is provided for by the Code of Civil Procedure ($25,000.00).

This critical error by parliament, coupled with the recent decision of the High Court, will have the effect of making it possible for every citizen who has had money seized by the state pursuant to the 2010 amendment to the Proceeds
of Crime Act to make an application for its restitution. Those persons may also be entitled to interest on their money at the statutory rate and legal costs.

A copy of the court’s ruling in the matter of Cecil Toussaint can be found on the Eastern Caribbean Supreme Court Website: https://www.eccourts.org/cecil-toussaint-v-attorney-general-of-saint-lucia-et-al/