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Friday, 29 May 2020

The Illegality Defence


Q:
If I am right in a vehicular accident, but didn’t realise that my insurance policy had lapsed, can I sue the other driver for damages?


A:
Ex turpi causa non oritur actio ("from a dishonorable cause, an action does not arise") is a brocard (legal Latin terminology) that refers to the fact that no action may be founded on illegal or immoral conduct. 


Driving with insurance is illegal, contrary to the Motor Vehicles Insurance
3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

As a result, if the defendant relies on this defence, your claim will be unsuccessful because had you not acted illegally by driving without insurance, the accident would not have occurred.  

Monday, 25 May 2020

Consumer rights: no return, no refund


Q:
Is a "No Refund" or "All Sales Final" store policy legal in Trinidad & Tobago?


A:
  • *Section 15(1) - Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description
  • *Section 16(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except:
    • (a) as regards defects specifically drawn to the buyer’s attention before the contract is made; or
    • (b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
  • *Section 20(d)(ii) - A time frame should be given for returns, but if there is none, the customer has a right to return within a "reasonable time".

  • *Section 8(1)(a) - a seller cannot contractually exclude or restrict liability for defective goods, and/or
    • (b) negligence of a person concerned in the manufacture or distribution (e.g., delivery drivers) of the goods


Sunday, 24 May 2020

Presumption of Innocence

Q:

I was charged with a relatively serious offence; can you help me prove my innocence? 

A:

If you’ve only been charged with an offence, it is NOT your job to prove your innocence.

 In early legal times, this rule was expressed as a brocard (a legal principle written in Latin): ei incumbit probatio qui dicit, non qui negat — proof lies on him who asserts, not on him who denies.

 Now, in a contemporary English legal system, the ‘presumption of innocence’ or the fact that a defendant is ‘innocent until proven guilty’ is a legal principle that places the entire burden of establishing guilt beyond a reasonable doubt on the prosecution/state/government.

 If guilt has seemingly been established due to circumstantial evidence like “consciousness of guilt” or direct evidence like CCTV footage, only then will you and your legal team have to dispute what has been presented and “prove your innocence”.

 

 


Tuesday, 19 May 2020

Adoption of children in Trinidad & Tobago

Q:

What is the procedure for adopting a child in Trinidad and Tobago?

A:

The Children’s Authority of Trinidad and Tobago is the only organisation that can legally provide adoption services. Adoptions are open to both nationals and non-nationals [s. 38]; all of which is governed by the Adoption of Children Act 2000, as amended:

s. 9(1) No person other than the Authority shall make arrangements for the adoption of a child.

s. 9 (2) Any other person who attempts to arrange for the adoption of children is liable on summary conviction to a fine of ten thousand dollars or to imprisonment for two years.

 

There are two types of adoptions available in T&T; open and closed.

  • Open adoption is where biological parents are active in the adoption process. Names and contact information are shared both ways with the potential adoptive parent, but the level of contact between parties would depend on what the potential adoptive parent(s) is(are) willing to accommodate. This level of contact sometimes continues after the adoption is finalised.
  • A closed adoption is where neither the adopter nor the birthparents know each other, nor do they ever meet. Most times no information is shared and is kept sealed by the Court.

 

Step #1

If interested in becoming an adoptive parent, an ‘expression of interest’ should be submitted to the Children’s Authority’s headquarters located at #35A Wrightson Road, Port of Spain, via email at adoption (at) ttchildren.org, or via telephone 627-0748 or 623-7555.

 

Step #2

After ‘expression of interest’ is acknowledged, the applicant will be subjected to a screening process, inclusive of questions pertaining - but not limited- to marital status, date of birth/age, ethnicity, sex, employment, financial status, educational background, physical health, mental health, criminal history, etc. Also explored would be the reason for wanting to become an adoptive parent.

 

This information would guide what type of application best suits the applicant’s situation; whether it’s a single or married couple (the law currently only recognises heterosexual married couples). A single application can be made by both females and males, and does not discriminate against single male applicants.

 

Step #3

Once the preliminary assessment is satisfied, the potential adoptive parent would then undergo a comprehensive psychosocial assessment which includes home visits and background checks on all members of the household. This assessment leads to a comprehensive report prepared to be submitted to the Adoption Committee within the Authority, who would give the approval for the applicant to be a Prospective Adoptive Parent (PAP) and placed on the adoption list. Once approval is granted, the applicant attends mandatory training provided by the Authority, which covers in-depth information on the adoption process, caring for children with special needs, caring for children who were abused, etc.

 

Step #4

After the training, PAPs are then put through the matching process, which is based on the PAP's strengths identified in the previous assessments. The PAPs gives a description of the type of child they require inclusive of age, sex, ethnicity, skin colour, religious backgrounds, types of behaviours PAPs can deal with, etc. The PAP's requirements are then matched with the children who have been freed for adoption by the court [s.15]. If there is a match, the PAP would then be briefed on the child’s history.


Step #5

Once both parties agree, a first interaction experience is done. This is the first time the PAPs would meet the potential adoptee. The adoption process is an extremely emotional one so PAPs are reminded that even though they may have seen pictures of the child, the child has no prior knowledge of the PAPs. The adoptee’s reaction to the PAPs is very uncertain and may go either way. After this first encounter, both parties are debriefed, whereby there are discussions on emotions felt during the session, especially the child’s reaction to the PAP [s. 22].

 

Step #6

Once all parties are satisfied with the process thus far then the PAPs are granted a probationary period by the Adoption Committee. This temporary placement (probationary period) can last up to six (6) months [s. 12(1) and 19(1)], but varies depending on the details of the case. Once the probationary period is successful, an application is then made to the Court endorsed by the Children’s Authority of Trinidad and Tobago. The Court has the final decision on all adoptions. Once the application satisfies the court a final decision is made [s. 18 and 25]. After the adoption is finalised, the Children’s Authority continues to monitor and evaluate the placement to ensure that the placement continues to meet the needs of the child and or children.

 


Sunday, 3 May 2020

Coronavirus Layoffs or Retrenchment?


Q:
If I cannot afford to pay salaries as a result of declining revenue because of government restrictions on the operation of my business due to the outbreak of the novel coronavirus (COVID-19) pandemic, should I retrench my employees?


 A:
If you absolutely cannot afford to continue paying employees, I would not recommend a retrenchment if your intention is to temporarily suspend operations until restrictions are lifted.

I’ll begin with my recommendation of a “temporary layoff” and support it with a quote by one of the most respected past presidents of the Industrial Court - His Honour Mr. Addison Masefield Khan - from page 5 of a 1991 TIWU v Consolidated Appliances Limited judgement:
“The practice of a temporary lay-off is well recognised in industrial relations practice. A temporary layoff is a remedy which may be utilised by an employer to obtain relief where circumstances beyond his control warrant its implementation. It is a right which an employer may use only when the circumstances demand it. It must not be abused or be as a result of a whimsical decision. It must be required by the circumstances, which must be beyond the control of the employer and not of his own making.”

Most importantly for an employer suffering from significantly reduced revenue, with a “temporary layoff” there is no legal obligation for an employer to pay employees during the period, however, with retrenchment, severance payments must made to retrenched employees within a certain period.

In addition to that and a few other reasons, I would not recommend retrenchment mainly because it is governed by the Retrenchment and Severance Benefits Act 1985, which means that there are strict legal obligations that must be followed. For example:

Section 4(1) – if five (5) or more employees are being retrenched, each employee, the Minister of Labour and the recognised majority union (if there is one) must be given written notice that includes:

·         Names and position
·         Length of service and current salary
·         Reasons for redundancy
·         Proposed date of termination
·         Criteria used for selection of workers to be retrenched

Section 6 - minimum 45 days’ notice (only for 5 or more)… or payment in lieu of the notice period.

Section 18(3) – employees must be paid for their years of service.
  • Employees paid daily, weekly & fortnightly must be paid two (2) weeks’ wages per year for 1 - 4 years’ service and then three (3) weeks’ wages per year for service of 5 years and more

  • Employees paid monthly must receive 1/2 month’s salary per year for 1 – 4 years’ service and then 3/4 month’s salary per year for service of 5 years and over

Section 22 - stipulates that severance payments must be made no later than thirty (30) days after the last day of the notice period mentioned in section 6.

Section 25(1)(a) - A person who contravenes the provisions of this Act is guilty of an industrial relations offence within the meaning of the Industrial Relations Act and liable—

(a) in the case of an employer, to a fine of ten thousand dollars

Now that you have all the information, the choice is yours.

Friday, 24 April 2020

Vehicular Manslaughter (Death by Dangerous Driving)


Q:
 
A:
In order for the driver to be charged with murder, it will have to be proven that he deliberately hit and killed this little girl. If that can’t be proven, the more likely offence will be Vehicular Manslaughter, which is legally defined as the crime of causing the death of a human being due to illegal driving of an automobile.

In Trinidad & Tobago, the official archaic charge for this offence is “Causing Death by Dangerous Driving” according to section 71 of the Motor Vehicle and Road Traffic Act 1934, as amended:
71. (1) Any person who causes the death of another person by driving a motor vehicle dangerously on a road, commits an offence and is liable on conviction on indictment to imprisonment for fifteen (15) years.**

(2) A person convicted of an offence under this section shall, without prejudice to the power of the Court to order a longer period of disqualification, be disqualified for a period of fifteen (15) years from the date of the conviction from holding or obtaining a driving permit, and on a second conviction for a like offence he shall be permanently disqualified from holding or obtaining a driving permit.

Of course, “dangerously” is the operative word in the offence, which means that there is no Vehicular Manslaughter without clear evidence of dangerous driving… so what exactly is “dangerous driving”?

According to section:
71-B. (1) For the purposes of sections 71 and 71A a person is to be regarded as driving dangerously if—
 (a) the way in which he drives falls below what would be expected of a competent and careful driver; and
 (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

The definition proffered in this Trinidad & Tobago legislation is clearly quite broad and very vague, so in order to further explain, some examples from the well-referenced Blackstone's Criminal Practice include:
  • ·        Speeding
  • ·        Driving under the influence of alcohol or drugs
  • ·        Aggressive driving - such as sudden lane changes, cutting into a line of vehicles or driving too close to other vehicles
  • ·        Disregard of traffic lights and road signs
  • ·        Unsafe overtaking
  • ·        Carrying dangerous loads
  • ·        Driving with impaired ability – e.g. foot or hand in a cast
  • ·        Driving when tired
  • ·        Knowingly driving a vehicle with a dangerous defect
  • ·        Using a hand-held mobile phone or other hand-held electronic equipment, or other distractions such and reading a newspaper/ map, etc.


Administratively, it is also important to comply with the requirements for the limitation time-frames during when charges must be brought against an accused driver:
73. (1) Subject to subsections (2) and (3), where a person is prosecuted for an offence under any of the preceding sections relating respectively to the maximum speed at which motor vehicles may be driven, dangerous driving or causing death by dangerous driving, and to careless driving, he shall not be convicted UNLESS either—
 (a) he was warned on the day the offence was committed that the question of prosecuting him for an offence under some one or other of the sections aforesaid would be taken into consideration; or
 (b) within fourteen days of the commission of the offence a summons for the offence was served on him; or
 (c) within the said fourteen days a notice of the intended prosecution specifying the nature of the alleged offence and the time and place where it is alleged to have been committed was served on or sent by registered post to him or to the person registered as the owner of the vehicle at the time of the commission of the offence.

**Although the prescribed penalty is a maximum sentence of fifteen (15) years imprisonment, conviction of this offence is unlikely to result in the max sentence. Here are some examples of persons convicted of this offence in recent times:


Thursday, 16 April 2020

Citizen Rights during Police Roadblocks


 Q:
What are my rights with regards to being stopped and questioned by police officers at roadblocks during the COVID-19 lockdown in Trinidad & Tobago?

 
A:
Comply with all reasonable instructions because, as previously mentioned, the police have been empowered to enforce all of the special provisions associated with the current state of restricted movement and assembly during the novel coronavirus pandemic. However, please take note of the law on police vehicle searches without a warrant.

Additionally, if at any time you are stopped whilst operating a motor vehicle in Trinidad & Tobago, at the very minimum, you must be able to provide both a valid driving permit/license, as well as an up-to-date insurance policy.

56. (1) A person who drives or is in charge of a motor vehicle on any road or a learner who is in a motor vehicle on any road receiving instruction shall have on his person or in the motor vehicle for production as required by subsection (2) his driving permit or provisional permit as the case may be.

(2) A Transport Officer in uniform or a police officer in uniform may require any person referred to in subsection (1) to produce his driving permit or provisional permit for examination, in order to ascertain the name and address of the holder of the permit, the date of issue and the Transport Officer by whom it was issued.

(3) A person who fails to comply with the requirements of this section is liable on conviction to a fine of five hundred dollars.



The law on having valid vehicle insurance is as follows, according to the Motor Vehicles Insurance (Third-Party Risks)Act 1933, as amended:
3. (1) Subject to this Act, it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle or licensed trailer on a public road unless there is in force in relation to the user of the motor vehicle or licensed trailer by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third-party risks as complies with the requirements of this Act.

(2) If a person acts in contravention of this section, he is liable to a fine of seven thousand, five hundred dollars ($7,500) and to imprisonment for two years, and a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification) be disqualified for holding or obtaining a driving permit under the Motor Vehicles and Road Traffic Act for a period of three years from the date of the conviction.

Tuesday, 14 April 2020

Voluntary Relinquishment of Parental Rights


Q:
Is it possible to remove a father's name from a birth certificate due to him not wanting to be involved?


 A:
It is not legally possible for either parent to voluntarily relinquish their parental rights & responsibilities towards a child (with the exception of adoption).


4. (1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

(2) An agreement for a man or woman to give up in whole or in part, in relation to any child of his or hers, the rights and authority referred to in subsection (1) shall be unenforceable.

Monday, 13 April 2020

Expired Driving Permits during Coronavirus Lockdown


Q:
I’d like to know what the law is on driving with an expired permit/license… because I need to drive during this COVID-19 pandemic, but I cannot renew due to the Licensing Authority being closed.
A:
42. (1) Save as in this section provided, no person shall drive a motor vehicle on a road unless he is the holder of a valid driving permit for a motor vehicle of that class, and no person shall employ any person to drive a motor vehicle on a road unless the person so employed is the holder of a valid driving permit for a motor vehicle of that class, and if any person acts in contravention of this provision, he shall be liable to a fine of seven hundred and fifty dollars ($750) or imprisonment for six (6) months...

However, on 20th March 2020, the government passed the Miscellaneous Provisions [2019-Novel Coronavirus (2019-nCoV)] Act 2020 to amend certain pieces of legislation to introduce special provisions during the novel coronavirus lockdown in Trinidad and Tobago; one such amendment being to the Motor Vehicles and Road Traffic 1934, as amended on the validity of expired driving permits (in law, this is referred to as a moratorium):
61B. (1) Notwithstanding any provision to the contrary contained in this Act, any driving permit, taxi driver licence, badge, certificate or other document issued by the Licensing Authority which expired prior to or during the period 27th March, 2020 to 31st July, 2020 shall be deemed to be valid until 31st August, 2020.

Thursday, 9 April 2020

Offences Against the Person: Manslaughter

Q:
A police officer ‘bredrin’ recently posted this video in a WhatsApp group chat asking for an opinion on criminal liability by stating that the older man was kicked, fell, hit his head, and later succumbed to the injury… 

A:
Homicide is the act of one human killing another, which then results in a criminal charge for murder, or with certain defences, a reduced charge of manslaughter.

The facts here do not meet the threshold for murder, so look out for a more detailed post on murder at some point. In the meantime, this post is about manslaughter, which is the killing of a human being without malice aforethought or mens rea (Latin for ‘guilty mind’).

There are complete defences to murder like self-defence whereby a person will be fully exonerated; however, a partial defence will only reduce a charge for murder to either Voluntary Manslaughter or Involuntary Manslaughter.

In this case, the strongest argument can be made for Voluntary Manslaughter, which occurs when a person kills another in the heat of the moment without the intention to kill. This usually is due to an incident that is precipitated by the defendant’s loss of self-control / provocation, which is for the jury to decide at trial… according to the Offences Against the Person Act 1925, as amended:
4B. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

The widely accepted definition of loss of self-control / provocation comes from Devlin J in the case of R v Duffy [1949], where a woman killed her sleeping husband with an axe after she was prevented from leaving the house with her child to escape years of alleged abuse:
"…the provocation must cause a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

Now, once successfully reduced, the penalty for manslaughter in Trinidad and Tobago ranges from life imprisonment to a fine:
6. Any person who is convicted of manslaughter is liable to imprisonment for life or for any term of years, or to pay such fine as the Court shall award.

In the end, “winning” a fight can potentially land a person in prison for life, so it’s probably best to walk away from such situations.

Saturday, 4 April 2020

Street-obstructing protests


Q:
After reading this Trinidad Express news article, can you tell me what law (if any) these protesters would have broken?


A:
Laws were broken from the very first paragraph of the article, which reads:
“Commissioner of Police, Gary Griffith, has launched an investigation into a report that about 15 persons blocked Bridge Road, Sangre Grande, with burning debris last night in protest of the reported removal of COVID-19 patients from the Couva Hospital to a building in their area.”

64. (1) Any person who commits any of the following offences in any street is, for each offence, liable to a fine of two hundred dollars or to imprisonment for one month, that is to say, any person who:
(j) throws or lays down any stone, timber, or any other materials
(n) in any way wilfully obstructs the free passage of any street