Did Floyd Green really breach?
A legal perspectiveSunday, September 26, 2021
Arguably , the most topical issue since last week has been the resignation of Floyd Green, former minister of agriculture and fisheries, and it has truly ignited a firestorm of commentary and raised several questions in relation to those who are permitted to leave their abode or place of residence during curfew periods under the Disaster Risk Management Act (DRMA) and its orders. I will proceed to share my legal perspective, devoid of emotions, but based on the information that has been largely circulated in the public space. My views are guided solely by the legal principles applicable in this area.
The Third Schedule of the DRMA states that “persons permitted to leave their abode or place of residence during the specified hours during the relevant periods under paragraphs 10 and 11...
“The holder of an office, or for the purposes of the employment, service, activity or authorisation, or duties (as the case may be) described below:
1) The holder of any of the following offices:
(a) the office of governor general;
(b) office as a Member of either House of Parliament;
(c) office as a member of the judiciary...
10) Persons employed in the sugar cane industry
11) Persons employed to “tourist establishments” as defined by the Public Health (Tourist Establishments) Regulations, 2000…”
There is no doubt that, as a Member of Parliament, Floyd Green is permitted to leave his abode or place of residence on a no-movement day simply by virtue of the office he holds (absolute exemption). The video in circulation depicted activities that purportedly took place on a no-movement day (September 14). The gazetted DRMA (Enforcement Measures) (No 9) (Amendment) (No 2) Order 2021, which was in effect at the time, maintained that exemption.
It is important to note that the word “or” is used in the introductory paragraph which lists the 52 categories of people permitted to move during the specified hours. On a literal interpretation, this is disjunctive and the people who fall in categories 1(a), (b) and (c) enjoy an absolute exemption compared to the other categories of persons listed in the Third Schedule, who are only permitted to leave their abode or place of residence for the purposes of employment, service, etc. For instance, this is seen in the case of attorneys-at-law where it states that “any attorney-at-law attending at police stations or lock-ups, or appearing before a court, for the purposes of legal representation of a client of that attorney-at- law, or attending to a client of the attorney-at-law in the case of an emergency arising due to the SARS–CoV-2 (novel coronavirus) pandemic”.
In interpreting the Third Schedule, the rules of statutory interpretation dictate that where the words used are clear and unambiguous, the court must apply the literal meaning to same.
Sections 12 (b) and (c) of the DRMA stipulate that people in a public place shall maintain a distance of at least 182.88 centimetres (or six feet) from other people(“social distancing”) and shall wear a mask fitted to that person's face so as to cover that person's nose and mouth. The orders go even further to specify and include workplaces and licensed public passenger vehicles. However, the DRMA does not define a public place. Suffice it to say, a 'public place' is defined under the Town and Communities Act 1843 as “every road, street, footpath, footway, court, square, lane, alley, or thoroughfare of a public nature opened to or used by the public as of right, and to every place of public…” This also accords with the definition in the Interpretation Act 1968 which adds “…place of entertainment of any kind…”
It can be agreed that the video showed the former minister at a hotel in the Corporate Area. However, a court, without more, would be hard-pressed in concluding that a breach occurred in a public place when the video showed the former minister consuming a beverage. Did he resume wearing a mask thereafter? It can also be agreed that the wearing of a mask while consuming food and beverage is quite impractical.
It has been widely asserted that the video also showed a clear breach of the rule against public gathering, particularly, because it contained more than 10 people. The rule against public gatherings contained in Section 14(10) of DRMA (Enforcement Measures) (No 9) Order 2021 states that “only hotels and resort cottages (as those terms are defined in the Tourist Board Act) that are licensed under the Tourist Board Act and certified by the Tourism Product Development Company Limited shall operate, and shall do so only in accordance with the “COVID-19 Ministry of Tourism Health and Safety Protocols – Protocols for the Jamaica Tourism Sector 2020”. The hotel in question, once satisfying this section, would have been operating pursuant to the specific protocols for seating arrangements of guests in restaurants (capacity calculation in comparison to square footage), and as such no breach of the public gathering rule could be established on the part of the former minister and I make bold to say the hotel.
Section 31G of the Evidence (Amendment) Act 2015 sets out the factors to be satisfied in order to rely on video evidence to mount a prosecution. This requires being able to identify the maker of the video, to clearly establish that the device was properly functioning at the material time, and that the said video was not altered. It is noteworthy to pause at this juncture and highlight that matters of this nature which have surfaced thus far, show the recordings being made by the said accused people or police. Those circumstances are clearly distinguishable from that which the former minister now finds himself, and unless the maker of the video is willing to give evidence which would require certification of the device and satisfying the requirements under the Act, then there would be little or no basis on which the police could arrest and charge the former minister. Moreover, the video evidence would have to reveal a breach.
Irresponsible, but accountable
Based on the foregoing, it is my considered view that the former minister did not breach the DRMA and its orders. However, I do find his actions to be highly irresponsible and out of character. It was plainly an error in judgement which, as he has stated, “lacks sensitivity of the difficult realities that the country faces” and sent the wrong signal in light of the recent measures to restrict movement and curb the spike from the third wave. He has acknowledged his error in judgement and apologised sincerely (not a confession) and I do believe that he did the right thing in offering his resignation.
In fine, this scenario underscores the point raised by many that new legislation should have been introduced and passed similarly to other jurisdictions, at the onset of this pandemic which would have sufficiently covered the lacunae which now exist in the DRMA and its orders.
— This does not constitute legal advice.
Demetrie Adams is an attorney-at-law and partner at Tavares-Finson Adams, Attorneys-at-Law. Send comments to the Jamaica Observer or firstname.lastname@example.org.