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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

PORT OF SPAIN

H.C.A. No. S1564 of 2005 Civil Appeal No. 96 of 2013

IN THE MATTER OF THE FUNDAMENTAL RIGHTS AND FREEDOMS GUARANTEED BY THE

CONSTITUTION OF THE REPUBLIC OF TRINDAD AND TOBAGO ENACTED AS A SCHEDULE TO

THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO CHAPTER 1:01 “THE

CONSTITUTION”

AND

IN THE MATTER OF AN APPLICATION BY THE APPLICANTS FOR REDRESS PURSUANT TO

SECTION 14 OF THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO FOR THE

CONTRAVENTION BY THE EXECUTIVE ARM OF THE STATE OF SECTIONS 4 AND 5 OF THE SAID

CONSTITUTION IN RELATION TO THE APPLICANTS

AND

IN THE MATTER OF THE CONDUCT AND/OR ACTION OF THE EXECUTIVE ARM OF THE STATE IN

TREATING THE APPLICANTS UNEQUALLY AND/OR IN FAILING TO TAKE STEPS TO ENSURE

THAT THE APPLICANTS ENJOY THEIR FUNDAMENTAL RIGHTS AS GUARANTEED IN SECTIONS 4

AND 5 OF THE SAID CONSTITUTION

BETWEEN

ALLAN MITCHELL DEOSINGH PARASRAM

EARL SAMUEL INDAR HEERALAL

IVAN RANGOO JERANDEL NOYAN

KELVIN DESMOND CALLENDER KUBAIR RAMKUMARSINGH

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LEON WELLS RANCE JOHNSON

RUPERT ROY WILLIAMS STEPHEN EDWARDS

MICHAEL SCARBOROUGH GERARD HARPER

Appellants

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Respondent

PANEL: G. Smith, J.A. M. Mohammed, J.A. C. Pemberton, J.A.

Appearances:

Mr. R. L. Maharaj, S.C. instructed by Ms. N. Badal for the Appellants

Mrs. J. Baptiste-Mohammed instructed by Mr. S. Julien for the Respondent

DATE OF DELIVERY: 31st January 2018

JUDGMENT

Delivered by: C. Pemberton, J.A.

[1] BACKGROUND

This is an appeal from the decision of the trial judge, Harris J in which he dismissed the

Applicants’ Constitutional Motion, seeking relief for breach of their fundamental rights

expressed at section 4(a),(d) and (j) of the Constitution1. These rights guarantee an

individual’s right to property, to equality of treatment from a public authority and

freedom of association. At the hearing of the appeal, Counsel for the Appellants, Mr.

1 THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO Chap. 1:01.

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Maharaj S.C., indicated that the reliefs prayed under section 4(a) and (j) were not being

pursued.

[2] This left the Appellants’ claim for,

[a] declaration that the failure and/or refusal of the State to take steps to regularize the terms and conditions of service and employment of the Applicants as Estate Constables and/or Corporals (some of whom are attached and others who were attached but are no longer attached to the Praedial Larceny Squad of (the) Trinidad and Tobago Police Service) so as to equate them with the terms and conditions of members of the Trinidad and Tobago Police Service notwithstanding that they are public officers having been appointed by the Public Service Commission, contravenes their right to equality of treatment from a public authority as guaranteed to them in section 4(d) of the Constitution and is accordingly illegal and unconstitutional,

to be determined by this court.

[3] The relief prayed recognizes that the Appellants belong to a differently constituted

“service” as it were, but notwithstanding that, they are of the view that this does not

debar them from enjoying the same terms and conditions as members of the Trinidad and

Tobago Police Service (“TTPS”). The following is an account of the undisputed facts

pertinent to this prayer.

[4] SHORT FACTS

The Applicants/Appellants, fourteen (14) in number2, were precepted as Estate

Constables, (“EPO”s) on diverse dates by the Commissioner of Police, pursuant to the

SUPPLEMENTAL POLICE ACT3 to be members of the Anti Squatter Squad. They remained

2 By the time the action was heard in Court, Applicant #14, Gerard Harper, passed away, leaving thirteen (13) Applicants. 3 Chap. 15:02 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO. See section 14(1). The operative part of the Precept reads:

The Commissioner of Police, under and by virtue of the power and authority in him vested by the Supplemental Police Ordinance (now Act), hereby appoints you to be an Estate Constable, and issues to you this precept authorizing you to act as an Estate Constable for the ‘Anti Squatter Squad and all Police Divisions of the Territory’.

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attached to the Anti Squatter Squad until they were all subsumed under the Praedial

Larceny Squad to perform certain duties in that Squad. The Appellants were employed

under the CIVIL SERVICE ACT4. They were appointed by the PUBLIC SERVICE

COMMISSION5 and are subject to the CIVIL SERVICE ACT and REGULATIONS and the

PUBLIC SERVICE REGULATIONS6. At the time of filing the action, the Appellants were

assigned to the Ministry of National Security. Other persons precepted as EPO’s were

assigned throughout the Public Service.

[5] THE PROCEEDINGS BELOW

THE APPLICANTS’ CASE

The Applicants claimed incorrectly that they were appointed by the Commissioner of

Police and that, “each Applicant…was granted all such rights, powers, authority, privileges

and immunities as police officers below the rank of Corporal has and as (were) subject or

liable to either (by) the common law or any law which is in force in the jurisdiction”. In the

prayer for relief, the Applicants recognized that they were in fact “public officers having

been appointed by the Public Service Commission”. Further, the Grounds in the Notice of

Appeal at paragraph 1, speak to their appointment being made by the Commissioner of

Police. I shall take it that the Applicants have recognized that their appointment was

made by the Public Service Commission as the prayer would override the grounds.

[6] They further state that notwithstanding that they perform the same or materially similar

duties as members of the TTPS, they do so under terms and conditions which are inferior

to those enjoyed by members of the TTPS. In particular, they claim that they receive

lower benefits and/or inferior terms and conditions including salaries, even though they

are similarly circumstanced to their counterparts in the TTPS. They therefore allege that

they had been subject to unequal treatment in violation of section 4(d) of the

4 Chap. 23:01 of THE LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO. 5 The PUBLIC SERVICE COMMISSION is established under section 120 of THE CONSTITUTION. The POLICE SERVICE

COMMISSION is established under Section 122 of THE CONSTITUTION. 6 Chap. 1:01 of THE LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO.

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Constitution,7 because of the State’s failure to accord them the same salary and benefits

as Regular Police Officers (“RPO’s”) of the same rank.

[7] APPLICANTS’ EVIDENCE

The Applicants relied on five affidavits in support of their application. These affidavits

spoke to their roles and functions and the types of duties performed both in and out of

the Praedial Larceny Squad in every effort to prove their case that they were the same or

substantially the same as the RPO’s, thereby making the RPO’s true comparators with the

EPO’s.

[8] THE RESPONDENT’S CASE

The Respondent vehemently disagreed with this assertion. The Respondent posited that

the two groups of police officers are constituted under markedly different statutory

regimes, the Civil Service/Public Service for the EPO’s and the Police Service for the RPO’s.

They were subject to different terms and conditions as it relates to the qualifications for

entry, both physical and academic. The Respondent examined the duties performed by

the two sets of officers, and emphasized that while they were similar, the duties were

different in material ways. They stated as well that in any event, if the EPO’s performed

some police duties, this did not lead to a foregone conclusion that they were

comparators. Further, in addressing whether there was discrimination, the Respondent

noted that special attention must be paid to whether treatment of EPO’s as against RPO’s

may be justified. The Respondent highlighted Lord Nicholls’s dicta,

The essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made can withstand scrutiny…the Court’s scrutiny may be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disappropriate in its adverse impact.8

7 THE CONSITIUTION OF TRINIDAD AND TOBAGO section 4(d) infra. 8 Respondent’s Submissions. Filed Nov. 15, 2011. Para. 19. Quoting Lord Nicholls in R (CARSON) v. SECRETARY FOR STATE

WORK AND PENSIONS [2005] UKHL 37 in NADINE RODRIGIUES v. THE MINISTER OF HOUSING FOR THE GOVERNMENT P.C. APP. NO. 0028 of 2009.

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It is in this setting that the evidence presented by the parties, in this case the Appellants,

must be examined to determine whether there was a case for the Respondent to answer.

[9] THE RESPONDENT’S EVIDENCE

The Respondent filed eight affidavits in opposition. The evidence outlined and detailed

the differences in the nature of the duties performed, the frequency of performance of

the duties, the level of independence with which both sets of officers performed their

duties, and the gravity of the circumstances during the performance of their duties.

[10] According to the Respondent, these differences did not make RPO’s sufficient

comparators so as to support a claim for unequal treatment pursuant to section 4(d) of

the Constitution. In any event, the Applicants led no or insufficient evidence to ground

their claim. Further, the Respondent, by its evidence, has asserted that the differences

alluded to, were material to the resulting differentiated treatment meted out to EPO’s.

[11] ISSUES AT TRIAL

The trial judge identified two issues which he addressed in his Judgment:

1. Whether the failure of the State to equate the terms and conditions of service and employment of the Applicants with those of regular police officers (“R.P.O.’s”) infringe the Applicants’ right to equality of treatment from a public authority as guaranteed to them under section 4(d) of the Constitution of the Republic of Trinidad and Tobago.

2. Whether the conduct and/or inaction of the executive arm of the State in failing to take further steps to facilitate the Applicants as public officers to be represented by an Association or an Association of their choice contravenes their right to freedom of association as guaranteed under section 4(j) of the Constitution.

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[12] TRIAL JUDGE’S FINDINGS

As stated above, since this Appeal concerned Issue 1, I shall confine myself accordingly.

The trial judge following the Court of Appeal decision in the ANNISA WEBSTER CASE9,

found that the different legislative regimes which created the two classes of officers

“intended to and did create two distinct classes of officers, with one subordinate to the

other”. This, the judge felt was sufficient to dispose of the Applicants’ case when he found

that there was no breach of section 4(d) of the Constitution in relation to them. This

finding was in conformity with the law in Trinidad and Tobago as it was then.

[13] FURTHER ISSUE

The trial judge’s decision though it could have ended there, did not rest on that ground

alone. He went on to raise this other issue:

In spite of the difference in legislative underpinnings, could the Appellants have used the RPO’s as comparators to establish a successful claim for breach of section 4(d) of the Constitution?

In undertaking this assessment, the trial judge had recourse to the affidavits filed by all of

the parties. He was clear that the burden lay on the Applicants to prove that the RPO’s

were comparators.

[14] After a thorough analysis of the evidence, the trial judge concluded that the Applicants’

evidence was insufficient to establish -

the nature of the roles being performed in terms of the breath or scope of the

regular or core police duties which the EPO’s performed;

the extent and frequency with which the EPO’s carried out the duties of the RPO’s;

the level of independence with which EPO’s performed their duties, that is

without supervision of the RPO’s. In fact, the Appellants could not counter the

9 ANNISA WEBSTER & ORS. v. ATTORNEY GENERAL OF TRINIDAD AND TOBAGO. HCA 3562 of 2003; CA NO. 86 of 2008 per

BEREAUX J.

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evidence of the presence of RPO’s at material times during which the EPO’s

performed their duties;

the gravity of police duties that EPO’s were required to and did perform.

As a result, the trial judge found that the RPO’s were not true comparators to the EPO’s.

The Applicants were not successful in their allegation that they received unequal treatment

from a public authority in the exercise of its functions. There was no breach of the

Applicants’ rights guaranteed under section 4(d) of the Constitution. The Applicants’

motion was dismissed with costs to be taxed if not agreed. The Applicants appealed the

decision.

[15] ISSUES FOR DETERMINATON ON APPEAL

The following are the four issues raised to determine this appeal:

a. Is the difference in legislative underpinnings for EPO’s and RPO’s relevant when

considering whether RPO’s are appropriate comparators?

b. Did the Appellants, discharge their evidential burden to establish that EPO’s are

appropriate comparators and stand similarly circumstanced as RPO’s?

In his oral submissions, Mr. Maharaj posited another issue,

c. If the Respondent is relying on any differences to say they are not comparators,

can they merely state that there are differences without showing as a matter of

law that the differences are material to the differences in treatment between

the EPO’s and RPO’s?

d. In the alternative, has the State justified the differentiation in treatment

between EPO’s and RPO’s?

At the hearing of the Appeal, Justice of Appeal Smith raised for the parties’ consideration

the following:

e. Whether the very designation of District/Estate Constable is indicative of the

discrimination faced by the Appellants who assert that they will not be able to

be promoted as RPO’s are promoted and therefore this would amount to a

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further illustration of the allegation of a breach of their Constitutional rights

under section 4(d)?

In perusing the arguments presented by Counsel, other issues arose and I shall address

them for completeness. Those are,

f. (i) Whether the Respondent owes a duty of candour in this case;

(ii) The nature of a ‘public authority’;

(iii) The public interest; and

(iv) The actual effect of differences in appointment between the two classes

of officers.

Further, given Lady Hale’s observation on the failure of the parties in the WEBSTER CASE

to cross- examine the witnesses in the face of inconsistent testimony, Mr. Maharaj raised

the issue on the effect of the trial judge’s refusal to permit his application to cross-

examine the Respondent’s deponents. This has produced what I think is a compelling

issue for consideration:

g. What is the effect if any, of the trial judge’s refusal of leave to cross-examine on

the conclusions in this case?

[16] THE CURRENT APPROACH IN LAW

Differences in legislative underpinnings no longer form an effective bar on the issue of

determining comparators in matters alleging discrimination pursuant to section 4(d) of

the Constitution. This may be however, one of the factors to take into account in this

assessment. The current approach to the interpretation of section 4(d) of the Constitution

outside of the differences in legislative underpinnings, when assessing whether one group

could be a sufficient comparator was summarized by Lady Hale in the WEBSTER CASE10

to be as follows:

1. The situations must be comparable, analogous or broadly similar, but need

not be identical. Any differences between them must be material to the

difference in treatment.

10 WEBSTER AND OTHERS v ATTORNEY GENERAL OF TRINIDAD AND TOBAGO [2015] UKPC 10. See Transcript of Proceedings.

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2. Once such broad comparability is shown, it is for the public authority to

explain and justify the difference in treatment.

3. To be justified, the difference in treatment must have a legitimate aim and

there must be a reasonable relationship of proportionality between the

means employed and the aim sought to be realized.

4. Weighty reasons will be required to justify the differences in treatment based

upon the personal characteristics mentioned at the outset of section 4: race,

origin, colour, religion or sex.

5. It is not necessary to prove mala fides on the part of the public authority in

question (unless of course this is specifically alleged).

The first requirement is the most relevant to the case at bar. If an Applicant satisfies his

burden of providing credible and probative evidence of the existence of a sufficient

comparator, the responsibility will fall on the public authority to justify the differences in

treatment. Those differences must have a legitimate aim and be proportional to the

means employed to realize the aim. These requirements must be satisfied to meet the

case for discrimination. I have discussed them in order to arrive at the decision and orders

made in this case.

[17] CONCLUSIONS

The appeal is dismissed and the Orders of the trial judge affirmed for the reasons set out

below.

a. Is the difference in legislative underpinnings for EPO’s and RPO’s still

relevant when considering whether RPO’s were appropriate

comparators?

The JCPC’s decision in the WEBSTER case sets the law on a different course from that

previously followed in this jurisdiction, more particularly reflected by the trial judge as the

first reason for dismissal of the claim. Whilst it is recognized that the differences in the

legislative regime governing the two groups of officers, without more, is no longer a

sufficient and full answer to determine a claim under section 4(d) under the Constitution,

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this may be taken into account as part of the relevant factors when assessing whether a

group or person is a comparator.

[18] b. Did the Appellants, discharge their evidential burden to establish that

EPO’s are appropriate comparators and stand similarly circumstanced

as RPO’s?

The burden of proving that the RPO’s were sufficient comparators lay on the Appellants.

In undertaking the assessment, the trial judge examined the evidence supplied by the

parties to consider whether RPO’s were comparators with EPO’s, sufficient to ground a

case for the Appellant’s charge of inequality of treatment by a public authority. He

recognized that EPO’s carried out several similar functions to RPO’s but he looked to the

nature of the roles being performed; whether the roles were core or general roles, and if

core, the frequency of performance and level of supervision and the gravity of the

prevailing circumstances under review. The trial judge made particular reference to the

fact that there was no evidence supplied by the Appellants “for instance of an incident of

an EPO affecting an arrest of a person outside of the ‘squad’s usual jurisdiction’. After a

thorough analysis of the evidence presented by both sides, the trial judge cannot be

faulted for finding that the Appellants did not present any evidence material enough to

persuade him that RPO’s were sufficient comparators. I find that the trial judge was not

plainly wrong in his determination of this issue.

[19] c. If the Respondent is relying on any differences to say they are not

comparators, can they merely state that there are differences without

showing as a matter of law that the differences which they relied upon

are material to the differences in treatment for the EPO’s and RPO’s?

The burden of proof with respect to asserting that one group is a comparator of another

lies on the person who alleges discrimination. The formulation of the question by Mr.

Maharaj is seeking to impose a duty on the Respondent, which does not arise at this first

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juncture. It is the Appellant’s burden to show that the situations alluded to are

comparable, analogous or broadly similar and that the differences between them are

material to the difference in treatment. In other words, the Appellants’ evidence must

show broad comparability and where there are differences, that these differences are not

so material or are insignificant to the question of whether one group is a comparator or

not. I reiterate that that is the Appellants’ burden.

[20] A Respondent is permitted to refute his opponent’s evidence by bringing evidence of its

own. A trial judge is within his right to prefer one party‘s evidence. In this case, the trial

judge assessed the evidence of both parties. He found that the Applicants had not

sufficiently articulated their case and in some instances, their evidence was sparse. Even

though it was the Appellants’ duty to discharge the evidential burden, I find that the

Respondent discharged the onus with respect to the evidence led, in that it did not merely

state the differences, but also demonstrated that the differences between the two groups

were material and significant in assessing the difference in treatment. Their evidence

gave the trial judge the material for his finding that the evidence was “robust, internally

consistent, logical and sufficiently detailed”. I have no contention with that conclusion in

relation to eleven of the Appellants. There is an issue which arises in relation to the refusal

of leave to cross-examine in relation to two of the Appellants which I shall address later.

[21] In answer to Mr. Maharaj’s issue, the burden to determine whether one group is a

sufficient comparator with the group allegedly being discriminated against does not shift

at this initial stage. The burden remains with he who alleges, in this case the Appellants.

[22] d. In the alternative, has the State justified the differentiation in treatment

between EPO’s and RPO’s?

Since the issue of justification was raised and addressed by both Counsel, especially by Mr.

Maharaj who raised it frontally, I shall treat with it. To reiterate our conclusions, we are of

the view that:

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i. In relation to eleven of the Appellants, the EPO’s were not shown to be

comparators to the RPO’s; and

ii. The differences between these EPO’s and RPO’s were material to the

difference in treatment between the two groups.

If as in the WEBSTER CASE, it was found that there was sufficient evidence that the RPO’s

were comparators with the EPO’s, I take Lady Hale’s admonition that there is considerable

overlap between the “sameness” or comparators issue and the justification issue. In any

event, I find that the difference in treatment was justified since that differentiation had a

legitimate aim and there was a reasonable relationship of proportionality between the

means employed and the aim sought to be realised. That legitimate aim of creating the

EPO’s was to give them limited powers of policing in certain recognised and specified areas

of anti squatting and praedial larceny. The deployment of eleven of the Appellants was, on

the evidence, proportional to this aim since the evidence discloses that for the most part

they performed those anti squatting and praedial larceny duties. Where they were not so

deployed and engaged in the performance of regular police duties, this was shadowed by

the limits of the duties both in terms of nature, extent and frequency and specifically under

the supervision of a RPO. Thus, the difference in treatment between the two groups of

officers served a legitimate aim that was reasonably proportional to the means used to

secure that aim. There can be no successful claim under section 4(d) of the Constitution.

[23] In answer to Smith J.A.’s question,

e. Whether the sole designation of District/Estate Constable is indicative of

the discrimination faced by the Appellants who assert that they will not

be able to be promoted as RPO’s are promoted and therefore this would

amount to a further illustration of the allegation of a breach of their

Constitutional rights under section 4(d)?

The short answer is that the affidavit evidence presented by the Respondent shows that

within the designation District/Estate Constable, there are several ranks, namely Estate

Corporal, Estate Sergeant, Estate Inspector and Estate Assistant Superintendent. Within

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the organisation of the public authority charged with responsibility over the EPO’s, the

Public Service, there are promotional opportunities available to them. This therefore

cannot be indicative of any illustration of discrimination sufficient to ground a claim under

section 4(d).

[24] f(i) Whether the Respondent owed a duty of candour in this case;

I find that in accordance with the law as stated in the OSWALD ALLEYNE CASE,11 the duty

of candour does exist but will only arise in circumstances in which the Appellants would

have discharged the “initial burden by the production of cogent evidence and sufficient

evidence”. In other words, for the duty to arise, the Appellants must have satisfied their

evidential burden. Failure so to do will not invoke the Respondent’s duty of candour.

[25] f(ii) The nature of a ‘public authority’

Early in his submissions, Mr. Maharaj took issue with the trial judge when he opined that

after all of the evidence and arguments before him, the EPO’s had made out a “a strong

case for their reclassification within the public service but that is a matter for the public

service”. The admonition to a “public authority” in section 4(d) of the Constitution has to

be read in context. It cannot and is not capable of a wide-ranging meaning, such that all

bodies can be regarded as a public authority charged with the duty to act in a manner

consistent with section 4(d) of the Constitution. This is in keeping with Lady Hale’s dicta

in WEBSTER. Having come to the conclusion on the evidence before him, that the Estate

Police Association was not the recognised bargaining unit for the Appellants given their

status as public officers, it is evident that the Public Service Association was the body

charged with dealing with issues of promotion and remuneration on behalf of its

members. I do not think that a claim for discrimination pursuant to section 4(d) can be

so wide ranging. To me nothing really turns on this issue.

11 See OSWALD ALLEYNE v THE ATTORNEY GENERAL & 152 ORS. Civ. App. 52 of 2003 per Bereaux J.A.

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[26] f(iii) The public interest

With respect to the public interest, I take no issue with the trial judge’s sentiments, that

if these Appellants are treated favourably over other public servants “of equal grade”,

that would excite the concerns of the court. To me, it fortifies the conclusion that the

RPO’s were not comparators with the EPO’s.

[27] f(iv) The actual effect of differences in appointment between the two classes of

officers.

Of importance to the wider public service is the fact that the RPO’s are appointed by the

Police Service Commission and are answerable to the Commissioner of Police. The EPO’s

were appointed by the Public Service Commission and can be assigned to work in any part

of the Public Service. They could have easily been assigned to a different Ministry. They

were assigned to the Ministry of National Security. How does the place of performance

of their obligations elevate them over those of their class? Further, a waiver by Cabinet

in relation to their absorption into the regular police service does not assist eleven of

these Applicants. This was not a broad and sweeping decision but was limited to some

members of the previous squad. The executive may take whatever steps it deems

necessary. It can be of no assistance to those not absorbed in the regular police force.

[28] This leads neatly into the next issue of refusal of Applicants’ application for leave to cross-

examine.

g. What is the effect if any, of the trial judge’s refusal of the Applicants’

application for leave to cross-examine on the conclusions in this case?

Certain realities must be appreciated in this matter, which I shall explain later in this

judgment. Suffice it to say, that neither the trial judge nor the Appellants could have

reasonably been expected to act differently. In the case of the trial judge, he was bound

by the prevailing Court of Appeal’s decision in the WEBSTER CASE as to how matters

such as this are dealt with. In relation to the Applicants, the prevailing Rules and practice

at the time did not encourage appeals on procedural issues as obtains now. Further, I

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do not think that much store can be laid by the fact that this was not a substantive

ground of appeal.

[29] Having said that, it is, I think open to this court to consider this issue and deal with it. It

is patent that there was a dispute of fact arising on the affidavits in relation to whether

two of the Applicants performed regular police duties exclusively. That dispute could only

be resolved by cross-examination of the deponents. It is at that stage that the trial judge

may decide whether a finding of fact may make a difference to the conclusion as to

whether the RPO’s were comparators and whether the differentiation in treatment was

justified. Further, the trial judge will determine whether these two Applicants can be

severed from the others. It is important to determine this issue since the case in relation

to these two Applicants may take another flavor. In the circumstances, the trial judge

was plainly wrong to refuse the Applicants’ application for leave to cross-examine on that

sole issue. To that extent, we must set aside the orders in relation to the officers affected

and remit the matter for continued trial and determination. It may be late in the day, but

I think that the ends of justice will be best served by this course and I would enjoin the

trial judge and Counsel to treat with this matter as one of urgency.

[30] DISPOSITION

1. The appeal is dismissed save and except for Appellants #4 and #11.

2. The orders of the trial judge are affirmed save and except for Appellants #4

and #11.

3. The Appellants, save and except for Appellants #4 and #11, are to the pay the

Respondents’ costs to be taxed in default of agreement.

4. In relation to Appellants #4 and #11, leave is granted to the parties to cross-

examine the deponents on the following paragraphs:

a. Affidavit of Wayne Richards sworn on 5th April, 2007: Paragraph 33

“Of the remaining Applicants all except Rupert Roy Williams are

assigned to duty in the Praedial Larceny Squad in the divisions

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located throughout Trinidad. On 1st January 1995 Rupert Roy

Williams was assigned as a driver to the Guard and Emergency

Branch and on 4th March 2001, he was assigned to the Inter

Agency Task Force from the Praedial Larceny Squad. At the Inter

Agency task Force he performs the duty of a driver only.

b. Joint Affidavit in Reply filed by the Applicants on 25th January, 2008:12

i. Paragraph 2 (vi):

Indar Heralal say for myself … In 1992, I was transferred to the

San Fernando Police Station where my duties included charge

room duties, escort duties and other regular police duties. In

2006 I was transferred to the San Fernando Model Station

where to date I continue to perform regular police duties at the

Criminal Investigation Department and the Task Force. Since

1992 I have not performed any praedial larceny or anti-squatter

duties.

ii. Paragraph 2 (vii) (b):

I Rupert Roy Williams … Since 2000 I have not performed any

praedial larceny duties and I have been required to perform

solely regular police duties. In 2005 I was transferred to the

witness protection unit where my duties included gathering

intelligence on people who commit murder. … In 2006 I was

transferred to the Inter Agency Task Force where my duties

include patrols and enquiries in high risk areas.

5. The matter is remitted to the trial judge to hear and determine the veracity of

the evidence with respect to Appellants #4 and #11, and to make such orders

as to damages and costs as are necessary.

12 See Record of Appeal pp 616 – 617.

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6. Should there be an order for costs, the successful party recover the costs of

this appeal determined at 2/3 of the costs as taxed or agreed below.

I shall now give the reasons for my decision.

[31] INTRODUCTION

This is an interesting appeal in that the trial judge based his decision on the authority of

the Court of Appeal decision in WEBSTER13 and on the specific facts before him. The

appeal is founded in a constitutional motion filed by thirteen (13) Appellants alleging a

breach of their fundamental right, which saw inequality of treatment meted out to them

by a public authority in the exercise of its functions. This right to equality of treatment is

guaranteed by section 4(d) of the Constitution of the Republic of Trinidad and Tobago

(“the Constitution”)14. The Appellants filed other complaints of breach of fundamental

rights, but moved forward on this ground only.

[32] The Trinidad and Tobago Police Service comprises officers precepted under the POLICE

SERVICE ACT15 to perform duties as prescribed under the Act, (the RPO’s). This group is

appointed by the Police Service Commission as established under the Constitution. Over

the years, there have been other groups established by other statutes to perform some

measure of policing. These groups fall under the provisions of the MUNICIPAL

13 Op. cit. note 7. 14 CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO Chap. 1:01 of the Laws of the Republic of Trinidad and

Tobago. sec. 4 (d). It is hereby recognized and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the freedoms following fundamental human rights and freedoms, namely – (a) … (b) … (c) … (d) The right of the individual to equality of treatment from any public authority in the exercise of its functions (e)

15 Chap. 15:01 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO.

19

CORPORATIONS ACT16, the SPECIAL RESERVE POLICE ACT17 and the SUPPLEMENTAL

POLICE ACT18 and the CIVIL SERVICE ACT19. These groups perform the duties and have

the responsibilities designated by the particular statues. Their appointing authorities vary

from the Police Service Commission to the Statutory Authorities’ Service Commission to,

as in this case, the Public Service Commission. The Appellants had continued unbroken

service for up to 33 years. At the time of their complaint, they were all attached to the

Ministry of National Security as EPO’s.

[33] THE PROCEEDINGS BELOW

THE APPLICANTS’ CASE

The Applicants alleged that since their appointment, they have been considered and have

been treated at all times by the Commissioner of Police, the TTPS and the Executive arm

of the State, as being members of the TTPS and/or a section of the TTPS. In terms of their

service under the Praedial Larceny Squad, they allege that when they were not called

upon to perform tasks under the Praedial Larceny Squad, they were pressed into

performing regular police duties “alongside” RPO’s. In fact, the Applicants stated that

they performed more RPO’s duties as compared with EPO’s duties, associated with

Praedial Larceny and before that, under the Anti Squatting Squad. Further, they perform

the same duties and functions as RPO’s in all police districts and divisions throughout

Trinidad and Tobago.

[34] During their tenure, the Applicants said that they “perform the same functions and duties”

regular Police Officers of “equivalent rank (regular members of the Police Service) but they

16 Chap. 25:04 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO.

See ALLEYNE AND OTHERS v THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO PC No 0052 of 2012 where Lord Toulson set out a comprehensive explanation of the Legislative environment at paras. 3 – 11. The dispute in that case concerned the failure of the Statutory Authorities’ Service Commission’s failure to make regulations to govern the several interests of its members. They located their case under section 4(b) of the Constitution - the right of the individual to equality before the law and the protection of the law.

17 Chap. 15:03 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO. See WEBSTER AND OTHERS v THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO.

18 Op. cit. note 2. 19 Chap. 23:01 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO.

20

receive lower benefits, and/or inferior terms and conditions including salaries.” 20. This is

the basis of their action, that notwithstanding the fact that they may have originated

under a different statutory regime, they performed the duties of RPO’s at the same rank,

so that they were eligible to be absorbed into the Regular Police Service, or have

conferred on them, similar terms and conditions to the RPO’s. This they say, qualifies

them to be treated similarly to RPO’s of the same rank, and failure so to do results in a

violation of their Constitutional rights as expressed in section 4 (d). By the time of the

hearing of the appeal, several of the Applicants had retired and it was confirmed that

three of them had been absorbed in the Regular Police Service.21

[35] THE RESPONDENT’S CASE

The Respondent vehemently disagreed with this position. In its defence, the State

presented evidence speaking to the following issues:

1. separate statutory regimes;

2. details of different terms and conditions in the terms of qualifications for entry,

both academic and physical; and

3. details of differences in the duties which were to be and were actually performed;

4. details of differences in the environment for the performance of their duties.

The Respondent noted that these were sufficient to dislodge the notion of appropriate

comparators, let alone comparators at all. Even if the court was not with them on that

issue, the Respondent submitted that these differences all justified the differential and

resulting treatment.

20 See Ground 1 of the Notice of Motion filed on 2nd September, 2005. 21 Cabinet had taken a decision to absorb eleven EPO’s into the regular police service. Five of these were Applicants in this

matter. In the interim, Applicant #14, Gerard Harper, passed away and Applicant #10, Rance Johnson, could not be absorbed since he was over the age of retirement for RPO’s. He continued as an EPO until he retired at the rank of Corporal.

21

[36] THE LAW

The dicta in the BHAGWANDEEN CASE22 provided useful guidance for the trial judge’s

application and conclusions. Essentially the case states that a claimant who alleges a

breach of section 4(d) of the Constitution, must assert a difference in treatment between

himself and a similarly circumstanced person and that comparison must be “such that

relevant circumstances in the one case are the same or not materially different”. As I said

above, the trial judge based his decision on the open and shut approach adopted by the

Court of Appeal in ANNISSA WEBSTER that was based upon the difference in statutory

regimes under which RPO’s and EPO’s were appointed. However, the trial judge did not

hang his hat on that peg. He went on to analyse the evidence presented to him by both

parties and then applied the existing law.

[37] THE EVIDENCE

The Appellants’ evidence was presented in four joint affidavits and an affidavit of the

Fourth Appellant23. The Respondent’s evidence was presented by five persons and was

contained in eight affidavits24. Not all of them are relevant to the issue on appeal. In

assessing the evidence, the trial judge had recourse to the following principles:

1. In order to sustain a claim, the Applicant must show that he is similarly circumstanced as the groups/persons forming the nub of his complaint.

2. The evidence must be cogent. 3. The burden of proof lay on the Applicant to bring such evidence. 4. Once that burden is discharged, the Respondent must justify the

differences as necessary. 5. There is no need to prove mala fides.

The trial judge correctly identified the relevant bases upon which to assess and deal with

the evidence presented to him by the parties.

22 BHAGWANDEEN v AG OF TRINIDAD AND TOBAGO. PCA 45 OF 2003 per Lord Carswell cited at para. 4 of Judgment of Harris

J. in this case. HCA S 1564 OF 2005. 23 See para. 13 of the Judgment of Harris J. 24 See para. 14 of the Judgment of Harris J.

22

[38] THE APPLICANTS’ EVIDENCE

Whilst the trial judge appreciated the evidence that the Applicants’ duties expanded

beyond the limits of the Squads for which they were precepted, his difficulty with the

evidence was that there was insufficient particularity, with respect to the identification

of the regular police duties and functions. The Applicants’ case was devoid of particulars

of the extent and frequency of performance of those roles and functions and the degree

of independence with which the duties were performed.

[39] The trial judge made the point that the mere listing of the duties performed without

more, was not helpful to the court in assessing the true nature of the duties performed.

There needed to be some level of detail so that a true assessment could have been made

to determine whether a case for comparators between the two groups had been made

out. To his mind, there was,

insufficient evidence to establish sufficient breadth or scope of the core regular Police role they performed… (or) of the extent and frequency with which they carried out the RPO role(s)… (and) the level of independence with which the EPO’s performed regular Police roles, or put another way, evidence of the absence of a supervisory input by the regular Police when the EPO’s were carrying out RPO functions is not established.

[40] THE RESPONDENT’S EVIDENCE

The trial judge commented that the Respondent’s deponents provided the court with

“strong evidence contradicting the evidence led by the Applicants as to their being true

comparators with the RPO’s.” He recognised that the major points had been covered by

the evidence, to wit, the nature and extent of the duties performed, the gravity of the

circumstances in which the duties were performed and the degree of independence with

which the duties were performed. The trial judge accepted the evidence as being “robust,

internally consistent, possessed of sound logic...and sufficiently detailed and particular to

be suggestive of reality”. The trial judge never lost sight of the necessity for the Applicants

to bring cogent evidence before the court to prove their case.

23

[41] TRIAL JUDGE’S FINDINGS

After an extensive examination of the evidence as presented, and on the application of

the law and legal principles adumbrated above, the trial judge concluded that the

Applicants’ evidence was insufficient to establish -

the nature of the roles being performed in terms of the breath or scope of the

regular or core police duties which the EPO’s performed;

the extent and frequency with which the EPO’s carried out the duties of the RPO’s

or their roles;

the level of independence with which EPO’s performed their duties, that is

without supervision of the RPO’s. In fact, the Appellants could not counter the

evidence of the presence of RPO’s at material times during which the EPO’s

performed their duties;

the gravity of police duties that EPO’s were required to and did perform.

[42] As a result, the trial judge found that,

1. The Applicants were not similarly circumstanced as the RPO’s;

2. The fact that the SUPPLEMENTAL POLICE ACT provides that EPO’s assist the

regular police force, that fact alone would not be sufficient to “elevate the EPO’s

role to that of a true comparator”.

3. The Appellants failed to provide cogent evidence speaking to the nature of the

roles being performed, whether they are core or general roles; the frequency of

their performance and the level of supervision or even the mere presence of RPO’s

at the material time in the execution of core or general police duties or for

instance, the gravity, such as arrests outside of the statutorily permitted arrests.

4. The failure to provide that cogent evidence led to the conclusion that the RPO’s

were not true comparators with EPO’s.

5. There was no breach of the Applicants’ rights guaranteed under section 4(d) of

the Constitution.

6. The Applicants’ motion was dismissed with costs to be taxed if not agreed.

24

The Applicants appealed the decision.

[43] THE APPEAL

The Appellants disagreed with the findings of the trial judge. They complain that he gave

an unreasonable decision, which could not be supported by the evidence. I have

condensed the Appellants’ disagreement to the following bases:

1. The trial judge’s finding that the statutory regimes creating the two classes of officers

intended to and did create two distinct classes of officers was wrong in law.

2. The trial judge erred in law and in fact, in his failure to properly evaluate the

Appellant’s evidence and in his not finding that the evidence disclosed before him was

sufficient to satisfy the requirements that the RPO’s were proper comparators to the

Applicants.

3. That failure resulted in the conclusion that the treatment by the State, as alleged by

them, did not amount to a breach of their fundamental and entrenched right to

equality of treatment by a public authority.

4. The trial judge’s finding that the Respondents’ evidence was strong enough to

contradict the Appellants’ evidence as to the RPO’s and EPO’s being true comparators,

on the ground that the evidence was “robust, internally consistent, possessed of sound

logic, consistent with the plain words of the governing statutory regime and

sufficiently detailed and particular to be suggestive of reality” was wrong in law and

in fact.

5. The trial judge erred in finding that there was insufficient evidence to establish the

extent and frequency with which the Appellants executed RPO roles and even if that

evidence was sufficient, there was an absence of evidence speaking to the level of

independence or absence of supervision from regular police in the carrying out of

regular police functions.

[44] ISSUES FOR APPEAL

These are the issues to be considered,

25

a. Is the difference in legislative underpinnings for EPO’s and RPO’s relevant

when considering whether RPO’s were appropriate comparators?

b. Did the Appellants, discharge their evidential burden to establish that EPO’s

are appropriate comparators and stand similarly circumstanced as RPO’s?

c. If the Respondent is relying on any differences to say they are not

comparators, can they merely state that there are differences without

showing as a matter of law that the differences are material to the differences

in treatment for the EPO’s and RPO’s?

The trial judge did not deal with the issue of justification. Mr. Maharaj gave it full

treatment in his written submissions and Mrs. Baptiste-Mohammed gave it cursory

treatment. Because of the change in the approach to discrimination cases of this nature,

I am minded to consider this issue in the alternative, posed as,

d. In the alternative, has the State justified the differentiation in treatment

between EPO’s and RPO’s?

[45] At the hearing of the Appeal, Justice of Appeal Smith raised for the parties’ consideration

the following:

e. Whether the very designation of District/Estate Constable is indicative of the

discrimination faced by the Appellants who assert that they will not be able

to be promoted as RPO’s are promoted and therefore this would amount to

a further illustration of the allegation of a breach of their Constitutional rights

under section 4(d)?

[46] On a perusal of the arguments and oral submissions, I decided to address these points,

which I have framed as follows:

f. (i) Whether the Respondent owed a duty of candour in this case;

(ii) The nature of a ‘public authority’;

(iii) The public interest; and

26

(iv) The actual effect of differences in appointment between the two classes

of officers.

Once those issues are determined the final issue follows neatly to complete consideration

of the meat of this matter,

g. What is the effect if any, of the trial judge’s refusal of the Applicants’

application for leave to cross-examine on the conclusions in this case?

[47] I wish to reiterate that the Court of Appeal will not overturn a judge’s findings unless there

is a material error of law which appears in his judgment nor will the Court of Appeal

overturn a judge’s findings of fact unless there is a,

making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence… an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot be reasonably be explained or justified…25.

[48] In this case, the trial judge was guided by the state of the law, which prevailed at the time

of his judgment. I have to examine this case in light of recent authority. I may come to

the same conclusion as the trial judge albeit by a different route. I still ask whether the

trial judge was plainly wrong when he decided that the legislation,

has created two dissimilar classes of officers so that the EPO’s cannot claim to have been discriminated against…or alternatively … on the evidence in support and against the contention that the actual circumstances of the EPO’s and the RPO’s rendered them true comparators, the Court does not find the Applicants to be true comparators with the RPO’s on the basis of their respective circumstances…?

[49] Mr. Maharaj pointed out that this case was not brought by and on behalf of EPO’s

generally. Some EPO’s were employed to do other work in the service of the State. This

case was brought by the thirteen (13) EPO’s who were attached to the Ministry of

25 Per Lord Carnwath in PETROLEUM COMPNAY OF TRINIDAD AND TOBAGO LIMITED v RYAN AND ANOTHER [2017] UKPC 30

para. 15.

27

National Security and who were allegedly doing regular police duties. He reiterated that

they were required to perform basic police functions under the supervision of RPO’s. He

stated that the only bar raised by the Respondent to the EPO’s claim was that they were

not comparators with the RPO’s. To Counsel’s mind, the issue in this case really turned

on the evidence. The Court of Appeal’s task therefore, really lay in determining whether

the trial judge was plainly wrong in the assessment of the evidence before him.

[50] a. Is the difference in legislative underpinnings for EPO’s and RPO’s relevant

when considering whether RPO’s were appropriate comparators?

I have framed the issue in this way, as it is recognized that this is no longer to be

determinative of the whether RPO’s are sufficient comparators for other classes of

officers in the protective services.26 In this case, this issue is to be examined as part of

the evidence in assessing whether the RPO’s were comparators with the EPO’s.

[51] THE APPELLANTS’ WRITTEN AND ORAL SUBMISSIONS

Mr. Maharaj found much comfort with Lady Hale’s dicta in WEBSTER, which he took as

conclusive that position, that differences in legislative underpinnings were no longer a

valid basis to conclusively assess the existence of comparators. He spent little time on

this issue.

[52] THE RESPONDENT’S WRITTEN AND ORAL SUBMISSIONS

Mrs. Baptiste-Mohammed however, stood her ground on this issue, though reframed.

She took guidance from Lady Hale’s dicta but advanced that whilst it is not determinative

and conclusive, the differences in the legislative underpinnings is but one of the issues to

be considered in resolving this issue. In this particular case, the EPO’s do have powers of

arrest and other police powers as prescribed by the enabling legislation. Under the

PRAEDIAL LARCENY ACT, (the Act), the officers have specific duties and functions, some

26 See ANISSA WEBSTER case.

28

of which carry the same nomenclature as regular police duties. These are specific to the

provisions of the Act.

[53] When one compares those same functions to be performed, the differences are readily

apparent. Counsel referred to section 8 of the Act, which provides that when upon an

arrest of a person under the Act by a constable, “he shall forthwith take the person… to

the police station to which he is attached or to the nearest police station to lay the

necessary information as may be directed by the police officer in charge”27. This, Mrs.

Baptiste-Mohammed asserts, is part of the regulatory requirement that EPO’s operate

under, and this does not advance the case for comparators. She concludes that the

legislative framework shows as well that “the fact of the ‘degree of sameness’ of the

duties… which is also contemplated in the legislative framework, is of a limited nature.

What this does not mean in any way is that the Appellants are therefore comparators to

the (RPO’s).”.

[54] ANALYSIS AND CONCLUSION

The legislative underpinnings are clearly different and there is no need for an extensive

review of them. I take guidance from Lady Hale that legislative schemes are not

conclusive to determine the existence of comparators in a case of this nature. Having

said that, I agree with Mrs. Baptiste-Mohammed that whilst a finding on this issue is not

conclusive, the issue cannot be marginalized. It has to be taken into account for

consideration in deciding whether the group chosen, the RPO’s, is a comparator with the

EPO’s who have alleged that they have suffered a breach of the section 4(d) rights. One

of the differences is that the RPO’s and the EPO’s fall to be appointed, disciplined,

promoted, transferred and generally managed by two different bodies. In the case of the

RPO’s by the Police Service Commission and in the case of the EPO’s by the Public Service

Commission.

27 Emphasis mine.

29

[55] This case can be distinguished from the WEBSTER CASE. The allegations in that case were

mounted by a group of Police officers, representing Special Reserve Police who were

appointed by the Commissioner of Police, and who alleged that they were employed on

a permanent full-time regular basis, engaged in the same work or work that was not

materially different. Their angst was directed to the dissimilarity in treatment by the

Police Service. The decision rested on whether there was a failure of the State to justify

the acknowledged dissimilarity in treatment. In those circumstances, the principal reason

relied on by the State, the difference in legislative underpinnings was not sufficient to

justify the unequal treatment. This is not the case here.

[56] In this case, the trial judge in keeping with the modern thinking, also used the differences

in the legislative framework to assess whether the RPO’s can be comparators. He stated

in his judgment that,

The legislative framework clearly provides for and anticipates the EPO’s performing some tasks typically characteristic of police functions and duties. Indeed the intention of the Supplemental Police Act is to provide for the EPO’s in assisting the regular police. It is inconceivable to this Court that this assistance can be rendered without the EPO’s doing something(s) that regular police officers do or had done prior to the advent of the role of the EPO. That fact alone would not be sufficient to elevate the EPO’s role to that of a true comparator.

[57] I should add that the Appellants were Civil/Public servants. They belonged to a class

identified in the various pieces of legislation governing them. The thirteen (13) of them

remained EPO’s within the Public Service and were subject to be appointed, disciplined,

promoted, transferred and generally managed by two different bodies. That is one

major distinction between the RPO’s and the EPO’s and it is this legislative distinction in

substance, which provides part of the answer on this question to the issue of

comparators. For instance, in terms of the age of retirement, EPO’s retire at age sixty

(60) while RPO’s of similar rank retire at age fifty-five (55). In fact, in relation to Applicant

#11, he could not be absorbed into the regular police service since he had attained age

fifty-five (55) when Cabinet approved the arrangement. He continued to serve as an EPO

30

in the Public Service. That factor supports the view that it is important to consider the

legislative underpinnings when assessing whether RPO’s are broad comparators and I

daresay, belies the assertion of a breach of section 4(d) of the Constitution.

[58] It is therefore arguable that the difference in legislative underpinnings may serve as a full

bar to a claim where the groups of police officers and the statutory duties to be performed

are markedly different. However, I would say in conclusion, that when taken in the mix,

it is one of the factors to be taken into account in this exercise. The difference in the

legislative underpinnings in this case would not favour the Appellants.

[59] b. Did the Appellants, discharge their evidential burden to establish that

EPO’s are appropriate comparators and stand similarly circumstanced as RPO’s?

The current approach to the interpretation of section 4(d) of the Constitution when

assessing comparators separate and apart from differences in legislation was summarized

by Lady Hale in the WEBSTER CASE as follows:

1. The situations must be comparable, analogous or broadly similar, but

need not be identical. Any differences between them must be material

to the difference in treatment.

2. Once such broad comparability is shown, it is for the public authority to

explain and justify the difference in treatment.

3. To be justified, the difference in treatment must have a legitimate aim

and there must be a reasonable relationship of proportionality between

the means employed and the aim sought to be realized.

4. Weighty reasons will be required to justify differences in treatment based

upon the personal characteristics mentioned at the outset; race, origin,

colour, religion or sex;

5. It is not necessary to prove mala fides on the part of the public authority

in question (unless this is specifically alleged).

The main ground is stated at (1), but in light of Lady Hale’s acknowledgement that,

31

there is a considerable overlap between the ‘sameness’ question at (1) above and the justification question at (3). This is because the question of whether a difference between the two situations is material will to some extent at least depend upon whether it is sufficient to explain and justify the difference in treatment.”28

I shall consider the points raised at (2) and (3).

[60] Be that as it may, I, like the trial judge, will not shy away from the meat of this case.

LAW

The law in this area is clear and settled. He who alleges must prove. In other words, the

Appellants must bring sufficient evidence to Court to prove their case. The general

principles as set out in WEBSTER under which we take guidance are:

1. There must first be likeness;

2. There must be differentiated treatment;29 and

3. The evidential burden or duty to lead evidence in support of both

likeness and differentiated treatment rests on the Appellants.

[61] It was necessary for the Appellants to provide evidence, which was cogent for the trial

judge to rule that the RPO’s were comparators in this suit for discrimination on the

grounds as alleged. The role of this court is to examine whether the trial judge was plainly

wrong to reject the evidence advanced by the appellants or to characterize his decision

based on the evidence presented, as so unreasonable that no reasonable trial judge could

have made it. In assessing these issues, I am to look at the evidence as presented by the

Appellants but not to scrutinize it so as to substitute my decision for that of the trial judge.

[62] THE APPELLANTS’ SUBMISSIONS

If I may, I shall be referring where necessary to Mr. Maharaj’s oral submissions at the

hearing of the appeal. These were largely a restatement of the written submissions and

28 See paras. 24 and 25 of WEBSTER AND OTHERS v THE ATTORNEY GENERAL op. cit. 29 See WEBSTER per Lady Hale at para. 21 quoting Jamadar J.A. in SANATAN DHARMA MAHA SABA OF TRINIDAD AND

TOBAGO INC v ATTORNEY GENERAL OF TRINIDAD AND TOBAGO HCA 2065 of 2004 pp 50-58.

32

expanded as necessary. Counsel reminded us that the trial judge found that the

Appellants did not pass the threshold requirement of providing the court with evidence

to prove that the RPO’s were comparators to them. He was careful to reiterate that they

were a subset of the EPO’s in Trinidad and Tobago, in that they were “in the TTPS and

doing regular police duties”. He hung his hat on the principles which have been culled

over the years, which he interpreted as “the comparison has to be a broad compatibility;

it does not have to be identical. But what it does say is that the differences that you are

limiting must relate to the duties.”. Counsel’s submissions may be summarized as

follows:

1. These EPO’s are not saying that they want to be RPO’s. They are asking that

their terms and conditions be on par with those of their counterparts in the

TTPS. The reasons for this are:

a. The requirement of being precepted is the same;

b. The situation of the Appellants performing police duties in the

TTPS is comparable with that of RPO’s of equivalent rank

performing police duties, because the duties which the EPO’s and

RPO’s perform were the same and were not substantially

different.

2. For the purposes of the suit, the evidence was that the EPO’s will assist in

keeping the peace while they were on duty.

3. They performed some of the same duties outside the scope of the Squad and

some of the duties included going on patrol, conducting inquiries, traffic

duties, roadblocks, escorting prisoners, station sentry duties, election duties,

Carnival duties, guard duties, investigation of crimes, service of warrants and

general court process duties. They likened those to some of the core functions

of a constable in the TTPS.30

4. Specific duties were listed to be associated with “Sky Bird” to provide security

around the airport with members of the Defence Force and RPO’s, the Inter

30 See joint Affidavit filed by the Appellants referred to in Harris J’s judgment in this case HCA S1564 of 2005 at para. 20.

33

Agency Task Force and CID, gathering intelligence on people who commit

murder and in 2005, they were even part of a delegation to Grenada in the

aftermath of Hurricane Ivan.

5. Both EPO’s and RPO’s performed regular police duties under the supervision

of senior regular police officers.

[63] Mr. Maharaj submitted that most of that evidence was not contradicted. As far as the

Respondent’s evidence was concerned, Mr. Maharaj was critical of it in so far that it was

not ad idem with his clients’ case. He opined that in public law matters, “where you have

a witness or a party say that this is not the position and they would have had in their

possession documents which is reasonably expected that they would produce, the court is

entitled to draw adverse inferences against that party.”. To him, the court should have

drawn an adverse inference against the Respondent for not producing the evidence to

support the allegations of differences with respect to the performance of regular core

police duties as stated in the principal affidavit filed by Wayne Richards, when that was

the crucial issue in this case. He further submits that since the Respondent has been

maintaining that RPO’s were not comparators, in public law, they have a duty to give

reasons.

[64] THE RESPONDENT’S SUBMISSIONS

Like I did with Mr. Maharaj, I shall in the main, refer to Mrs. Baptiste-Mohammed’s oral

address as they were in the main a summary of her written submissions. Mrs. Baptiste-

Mohammed opened her account by succinctly reinforcing that it was the Appellants’ duty

to provide the evidence necessary to support their claim for discrimination. Once their

evidence could not pass muster, the public authority’s duty of candor did not arise. In the

circumstances, she was adamant that no adverse inferences should be drawn against the

Respondent as there was no breach of the public authority’s duty of candour. In fact, she

stated that the State, “in this matter” has fulfilled its duty of candour. She relied on

34

Bereaux J.A.’s decision in ALLEYNE 31 to support her position. She opined that “all the

evidence that (was provided was sufficient for the (trial judge) to make his decision that

the (EPO’s) were not, and cannot be comparators to the (RPO’s) … You have to look at

everything in the whole”32.

[65] Counsel then went on to analyse the WEBSTER decision and acknowledged that she was

guided by Lady Hale. She did not simply take the two points of difference in legislative

underpinnings and qualifications and training as the dispositive answers to the

comparator question. She submitted as follows:

1. EPO’s were public officers appointed under the Civil Service Act; RPO’s

were police officers appointed under the Police Service Act;

2. The training received by the EPO’s at the Police Training School was to

equip them to perform duties as EPO’s; that is to better enable them to

function as EPO’s and not as RPO’s. It was recognized by Cabinet that

EPO’s were required to perform policing duties including making arrests

and prosecution of persons arrested. When they performed these duties,

they did so as part of the Squad and as provided for by Statute. The duties

performed as part of the Squad were specific and limited in nature they

performed these duties alongside RPO’s. That, she asserts was the full

extent of the similarity and cannot make them full comparators.

3. It was recognized that some of these EPO’s functioned outside of the

remit of the Squad.

4. An examination of the other duties performed, Carnival duties and traffic

duties among others, sees that those duties were limited in nature and

were not an everyday occurrence.

31 ATTORNEY GENERAL OF TRINIDAD AND TOBAGO v OSWALD ALLEYNE & 152 ORS. CA 52 of 2003.

See pp23-5 of Transcript. 32 See Transcript of Proceedings p. 25, lines 23-28.

See Transcript of Proceedings p. 9, lines 18-22.

35

5. Counsel relied on correspondence from the Commissioner of Police to

support her argument that RPO’s were not comparators. It may be useful

to quote from the correspondence from the Commissioner of Police

through the Permanent Secretary, Ministry of National Security to the

Chief Personnel Officer:

The functions of these officers consist mainly of mobile and foot patrol duty, especially in agricultural districts; conducting inquiries into reports of praedial larceny; placing before a court… persons charged with offences (dealing with) praedial larceny….; assisting in road blocks when necessary, and in particular in rural districts where agricultural estates may exist… the Supplemental Police Regulations 15:02 … limit their power of arrest…”.

6. As far as the Appellants’ evidence was concerned, she countered that the

duties outlined in the Abstract of Duties in the affidavit which stated the

nature of the duties and the time spent on the duties, revealed that most

of the time was spent doing station sentry duty, a minimal time spent on

enquiries, some time spent on guard duty, records and clerical duties and

some telecommunication duties. This to her mind did not constitute

policing duties. Extensive and more serious police duties are not in the

mix.

7. Counsel noted as well, that even when the Appellants say that they

performed regular police duties, there is no evidence of the nature of that

duty and even when extra duties such as foot patrols are done, and were

not part of their regular duties, they were not done for extended periods

and were limited in scope and were to assist the RPO’s.

[66] THE APPELLANTS’ SUBMISSIONS IN REPLY

Mr. Maharaj reiterated his view that the public authority had a duty to disclose which

went abegging in this case. He was of the view though that if the court found that a prima

facie case of unequal treatment had not been established, then the principle was

36

inapplicable. If on the other hand there was a case to answer, then the duty of disclosure

will arise. He cast doubt on the Respondent’s view that his clients were performing

limited police duties. To support this he reminded the court of the nature of the duties

performed. He disputed the weight to be attached to the Commissioner’s letter as quoted

saying that the Respondent were obligated to “put evidence before the court to support

those conclusions”. Counsel took comfort in WEBSTER in which he said that the test for

“sameness”, in terms of work performed is “whether the Appellants and their

comparators were doing the same work or work that is not materially different”.

[67] In his rejoinder, Mr. Maharaj reiterated that, “the fact that they were supplemental police

officers and they were under the Supplemental Police Act in this case, in relation to the

issue before the Court, is not relevant because it is not a material difference relating to

their unequal treatment”33. I understand Mr. Maharaj to be saying that the legislative

framework is not a material difference relating to their unequal treatment and is

therefore irrelevant. The relevant points in Counsel’s view were, “they were precepted,

they went into the Police Service, and they were asked to do the same work that police

was doing.” He continued, “the fact of the matter is that the executive arm of the state,

had them doing constable work, regular police work”.34

[68] ANALYSIS AND CONCLUSIONS

It must be recalled that the trial judge followed established precedent at the time and

one of the bases of his decision was the difference in legislative underpinnings.35 To the

trial judge’s credit, he did not stop there. He addressed his mind to the evidence

presented by the parties to further determine whether RPO’s were comparators to the

EPO’s in a real and pertinent sense; that is their role and functions on the ground.

33 See Transcript of Proceedings. p 44. 34 Id. 35 See the Judgment of Harris J at para. 15: “At the onset let me say that the Court is guided by the dicta in the recent decision of

the Court of Appeal in the Annisa Webster matter….: that is a sufficient answer to the issues put before this Court to show that the legislative regime governing the two classes of officers intended to and did in fact create two distinct classes of officers with one subordinate to the other.”.

37

[69] The burden is on the Appellants to lead evidence to show “the likeness and differential

treatment but once this is shown the burden shifts to the State to show reasonableness,

objective purpose, justification, accommodation etc”.36 The first step for the Appellants

to complete is to bring evidence to show the broad comparability, that is, the likeness.

It is noted that this comparability need not be identical. Put another way, the Appellants

and the class of officers that they have chosen to be comparators, the RPO’s of a similar

rank, must be broad comparators. How is this to be shown? In the trial judge’s view the

evidence led by the Appellants, “seeks … to establish that in effect the roles and functions

of the Applicants on the ground are the same or substantially similar to that of RPO’s so

as to make them true comparators with the RPO’s.” Using this approach enabled the trial

judge to assess the major issue upon which the case at bar and now this appeal turns.

[70] LIKENESS

The trial judge noted the ample evidence led by the Appellants of their carrying out of

certain functions of a regular police officer and found no fault with that evidence per se.

However, he subjected the evidence to rigorous examination, using the indices of:

(1) the nature of the role being performed both general and core;

(2) the frequency of performance;

(3) the level of supervision required to perform various tasks;

(4) the degree of independence; and

(5) the gravity of the situation under review. 37

[71] The Appellants sought to provide evidence in support of their assertions through two

affidavits. The first affidavit38 was sworn by the first eleven Applicants, whilst the second

affidavit39, was sworn by the twelfth and thirteenth Applicants. Essentially, they mirror

each other. The Appellants contended,

36 Op. cit. Fn 22. 37 Judgment of Harris J. Op. cit. para. 17 38 Record of Appeal, Vol. 1 p. 8. Filed on 2nd Sep. 2005. 39 Id. at p. 130. Filed on 8th Sep. 2005.

38

We were subsequently in or around 1986 assigned by the Commissioner of Police to the Praedial Larceny Squad of the Police Service. In the performance of our duties at the Anti Squatters and the Praedial Larceny Squad we acted under the supervision, direction and control of the Commissioner of Police. In the performance of our duties as aforesaid we performed the same the same functions and duties as regular members of the Police Service of equivalent rank. Although we were precepted as Estate Constables we performed the same functions and duties as regular members of the Police service and we worked alongside the regular members of the Police service in the performance of Police duties. Some of the duties which we performed with regular members of the Police Service at the Anti Squatters Squad were to assist in keeping the peace while demolition exercises took place of homes and buildings which squatters erected. These duties were performed on the average two or three days per week for a limited period of time on each day. We performed other Police duties either separately or with regular members of the Police Service whilst we were on Police duty and we were not engaged in keeping the peace at these demolition exercises40… In the exercise of our powers of arrest, we process the prisoner in the same way as regular members of the Police Service process their prisoners.41… We are required to perform the same duties and functions as Police Constables who are regular members of the Police Service. Some of these duties include patrol, conducting enquires, traffic duties (road block and other such exercises), escorting of prisoners, station sentry duties, election duties, carnival duties, guard duties, investigation of crime, service of warrants and general court process duties42… We like Corporals who are regular members of the Police Service perform supervisory duties over junior Police Officers who are either Estate Constables or Constables who are regular members of the Police Service.43

[72] DIFFERENTIATED TREATMENT

In terms of differentiated treatment, this was the evidence,

Although we perform the same functions and duties which regular members of the Police Service of equivalent rank perform we are treated differently and are required to perform our duties under terms and conditions of service

40 Appellants’ joint Affidavit. Para. 4. 41 Id. at para 15. 42 Id. at para. 16. 43 Id. at para. 17.

39

which are inferior to those enjoyed by regular members of the Police Service. We are treated differently in that we do not enjoy the same opportunities and safeguards for promotion within the Police Service as enjoyed by regular members of the Police Service44... We received and continue to receive inferior terms and conditions of service in relation to our salaries, vacation leave, pension, gratuity payments, housing allowance, meal allowance, funeral grants, overtime, proficiency allowance, specialization allowance, medical allowance, dental allowance and optical allowance.45

The Appellants set out the particulars in the form of a table.

[73] RESPONDENT’S EVIDENCE

This was the evidence that the trial judge had to consider. Sgt. Wayne Richards filed the

main affidavit in this matter. There were four other deponents who spoke to the other

issues raised at trial, but not pursued on appeal.

[74] LIKENESS

As far as this is concerned, the evidence recognizes that the areas of likeness between the

EPO’s and the RPO’s are:

1. Being precepted by the Commissioner of Police; and

2. Assisting in the performance of police functions limited to :

a. Assisting in the charge room;

b. Laying of charges in simple criminal matters e.g. minor assault and battery;

c. Police drivers;

d. Subject to the exigencies of the service, EPO’s are asked to,

assist the Regular Police in performing specific functions within the purview of the regular police officers, namely maintaining law and order in cases of external aggression or internal disturbance, actual or threatened, some Carnival Fetes, or even at the Parade of the Bands on Carnival Monday and Tuesday. For extra duties sometimes Estate Police supplement members of the Police

44 Id. at para. 19. 45 Id. at para. 23.

40

Service by performing basic police duties usually on festive occasions such as concerts and public fetes.46

e. Duties and powers consequent upon the provisions of the PRAEDIAL LARCENY

PREVENTION ACT47

Sgt. Wayne Richards deposed that the powers,

include but are not limited to the power to stop and search, power to search and seize, power to arrest, power to require production of a memorandum of sale for produce, power to charge for an offence pursuant to the Act. The Departmental Order is quite clear that no other duties are to be assigned to the Praedial Larceny Squad except in cases of emergency as determined by any First Division Officer.48

[75] DIFFERENCES

Sgt. Richards was careful to detail the differences which exist in the duties performed by

the EPO’s. These differences upon which the differentiated treatment is based are:

1. Qualifications;49

2. Duties - Sgt. Richards stated,

Estate Police perform duties which are of a quantitatively different nature to that of members of the Police Service…some [of] the basic function[s] of members of the Police force they do so at a much lower level and are neither trained nor qualified to perform the wide range of duties entrusted to members of the Police Service. Their work is essentially different and is of an inferior nature and of less value than either members of the Police Service and Special Reserve Police.50

3. EPO’s are public officers, appointed by the Public Service Commission and not

by the Police Service Commission.51 This was corroborated by all of the other

witnesses. The fact is, “there are 17 Estate Police employed by the Government

of Trinidad and Tobago who are assigned to duty in the Praedial Larceny

46 Affidavit of Sgt. Wayne Richards. Para. 25. 47 Chap. 10:03 of the LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO. 48 Op. cit. fn 39 - para. 36. 49 See para. 7 of the Affidavit which details such matters as physical attributes/requirements; hours of work; duties; retirement

age; training; age requirements; and entry educational requirements. 50 Op. cit. fn 39 - para 24. 51 Op. cit. fn 39 - paras. 29-30.

41

Squad”52. In June 2001, the EPO’s who were in Praedial Larceny Squad were

upgraded due to a concern among farmers, who were victims of theft.

However, even in that upgrade, the nature of the duties did not change. It was

noted that “each squad was to be assigned to the Divisional Headquarters and

was to be manned by one Sergeant or Corporal and six constables, who would

be a mixture of both Regular Police including Special Reserve Police and Estate

Police.”53

4. Training of a more limited nature. 54

5. EPO’s are not answerable to the Police Complaints Authority. 55

6. EPO’s have no seniority over RPO’s and “there is no authority for a senior or

higher ranking Estate Police to give orders to a Junior Police Constable”.

7. Promotions of EPO’s are not conducted through the Police Service, “in fact all

promotions in relation to the Estate Police are conducted by the Public Service

Commission and the Estate Police like all public officers are promoted in

accordance with the criteria established by the Public Service Commission

Regulations”.

8. Sgt. Richards further added that as EPO’s the Appellants, “lent support to the

regular police function as it applied to the Praedial Larceny Squad”56.

Sgt. Richards caps this evidence by stating,

Further, other duties performed by Estate Police outside the scope of the Praedial Larceny Squad or even the Anti Squatter Brigade are limited given the training of the officers involved. Such duties are to assist Regular Police Officers who at all times remained in charge of the relevant exercise. These other duties were the exception, rather than the norm, and Estate Police are required to perform some basic police duties on a limited basis and even on those occasions it is confined to lending support when it is needed. When performing such duties the Estate Police never performed same by themselves but are under the direct supervision of a senior officer of the Regular Police Service.57

52 Op. cit. fn 39 - para. 32. 53 Op. cit. fn 39 - para. 35. 54 Op. cit. fn 39 - para. 37. 55 Op. cit. fn 39 - para. 38. 56 Op. cit. fn 39 -para. 42. 57 Op. cit. fn 39 - para. 43. But in relation to Applicants #4 and #11 there may be a different story to tell. Op. cit. para. 29.

42

[76] Mrs. Debbie Sobers, another deponent added, “members of the Praedial Larceny Squad

are only entitled to wear their police uniform only when carrying out their duty and official

functions in the Praedial Larceny Squad”.58

[77] WHAT DID THE TRIAL JUDGE SAY ABOUT THE EVIDENCE?

It may be prudent to reproduce the relevant passages of the trial judge’s judgment. Harris

J stated as follows:

20. The affidavits of the first 11 applicants and that of the 12th and 13th applicants are substantially the same in most respects. The evidence from them all convey the impression … that indeed the substantial defined purpose of their precept and them, most of their actual functions and duties were centered around the Ant Squatters Squad and the Praedial Larceny Squad for varying periods from EPO to EPO, expanding beyond that of the ‘squads’ with the passage of time, to include more regular police work. The evidence of functions and duties expanding beyond the ambit of these squads, although present, again, in varying periods from officer to officer, is sparse and often times somewhat amorphous in detail and extent. …the Court is unable to sufficiently glean from the Affidavits of the Applicants the extent and frequency of the performance by the EP’s of either the core or general duties and functions of the regular Police duties and functions. A definitive identification of these regular police officer duties and functions and particulars of the extent and frequency of the performance of these said roles and functions by the RPO’s, in the context of establishing similarities between them outside of the reading of the legislation, in the court’s view is of some importance. When one looks at the length of service of the EPO’s and the number of man hours this would represent, to then list an array of activities in the Applicants’ affidavits, that would have been performed by the EPO’s over a period, does not sufficiently assist the court in determining the extent and nature of the performance of these roles and functions… .

25. …. Where over time they increasingly acted outside of the limited and lesser

functions of the squads, there is insufficient evidence to establish breadth and scope of the core regular Police role they performed. Very importantly, notwithstanding the evidence set out in the Joint Affidavit in response of the 25th January 2008 and generally, there is insufficient evidence to establish to the satisfaction of this Court, of the extent and frequency with

58 See Further Affidavit sworn and filed on 5th Apr. 2007.

43

which they carried out those RPO role(s). Even if one is to argue successfully that the evidence is ‘sufficient’ in scope, the Court is not convinced by it. Further still, the level of independence with which the EPO’s performed the regular police roles or put another way, the evidence of the absence of a supervisory input by the regular Police when the EPO’s were carrying out RPO functions, is not established. This is so notwithstanding the bare assertion by the Applicants that in instances they operated both alone or along RPO’s.59

36. Again, in this context, one has to also look at the nature of these roles

being performed, whether they are core or general roles and if core roles, then the frequency of their performance and the level of supervision (passive or active) or even the mere presence of RPO’s at the material time when the EPO’s are performing the respective role(s); and to look at the gravity of the prevailing circumstances. The first and second sentences of paras 4 of the joint affidavit of the 12th and 13th Applicants assert that in carrying out duties in the two squads they acted under the supervision, direction and control of the Commissioner of Police and that they worked alongside the RPO’s. I couldn’t help note that there is no evidence, for instance of an incident of an EPO effecting an arrest of a person outside the squad’s usual jurisdiction…. This sort of evidence …. from which the Court can make these sort of findings on a balance of probabilities in favour of the Applicants is not sufficiently articulated … Although I do find that the EPO’s performed several of the roles of the …RPO’s, I do not find that the roles played by the EPO’s were sufficiently similar to that of the RPO’s in extent, frequency and gravity. I do not find that EPO’s performed key and grave police duties, such as arrest for major crimes etc independent of the supervision or presence of the RPO’s.

38. On the evidence in support and against the contention that the actual

circumstances of the EPO’s and the RPO’s rendered them true comparators; the Court does not find that the Applicants to be true comparators with the RPO’s…

(Emphasis mine).

[78] The trial judge found the Respondent’s evidence to be “strong” evidence contradicting

the evidence led by the Applicants as to their being true comparators with the RPO’s.” He

accepted that evidence as being “sufficiently detailed and particular to be suggestive of

reality”. The trial judge found that based on the evidence as presented by the Appellants

59 Note Applicants #4 and Applicant #11, which will be discussed later in this Judgment.

44

and the Respondents in response, the Appellants did not prove that the RPO’s were

comparators.

[79] An examination of the evidence revealed that whilst a few copies of the “Abstract of

Duties” roster for one of the Appellants were exhibited, there was nothing to compare

this information with, as neither the “Abstract of Duties” rosters for the other Appellants,

nor the “Abstract of Duties” rosters for the RPO’s, were included in the evidence. From

this generic form, it is impossible to ascertain whether RPO’s of same rank were entrusted

with the same or similar duties, whether they were doing the same amount of work and

whether they worked the same amount of time. Further, the Appellants provided a chart

with similar ranks and salary ranges as included in their joint Affidavit in support, dated

2nd September, 2005. However, the source of this information is not revealed. The

evidence was therefore not reliable. Further, the duties and responsibilities of a Corporal

or Constable RPO and EPO are not included so as to establish a comparator. The

Appellants cannot simply make a bold statement that they perform the same functions

but receive less remuneration. There is no cogent evidence of that.

[80] To me it is a question of semantics, so that the terms “broadly similar” and “substantially

similar” do not import two different standards. This validates the trial judge’s approach

to his assessment of the evidence. Unless he went drastically wrong, I, as a court of review

will not interfere with his assessment and findings.

[81] In any event, Mr. Maharaj has not convinced me that the Appellants’ evidence supplied

for the trial judge’s consideration was more than narrative. I have examined the evidence

myself and conclude that it is short on what the EPO’s did by comparison with the RPO’s,

so that a true assessment of “sameness” could not be undertaken. I say without

reservation that I can find no fault with the trial judge’s analysis, reasoning and conclusion

on this issue.

45

[82] c. If the Respondent is relying on any differences to say they are not

comparators, can they merely state that there are differences without

showing as a matter of law that the differences which they relied upon

are material to the differences in treatment for the EPO’s and RPO’s?

MATERIAL DIFFERENCES

Mr. Maharaj submitted that the State has to show as a matter of law that the differences

which they assert are material to the differences in treatment of the Appellants. This is a

correct statement of the law. However, have we reached to that task?

[83] As seen from the evidence outlined above, the Respondent relied on the statutory

framework within which the EPO’s and RPO’s fall, and sought to highlight the differences

in the legislation, which would show material differences in treatment.60 Regulation 16

of the SUPPLEMENTAL POLICE ACT, makes specific provisions for the police duties to be

performed by the EPO’s. The original intention of the Act was a material circumstance in

determining status of comparators. In fact, in paragraph 35 of his judgment, Harris J.

noted,

“The legislative frame work clearly provides for and anticipates the EPO’s performing some tasks typically characteristic of police functions and duties. Indeed the intention of the Supplemental Police Act is to provide for the EPO’s in assisting the regular police”.

He further opined that it was commendable that some EPO’s strived to surpass the

expectation of their required duties and responsibilities and those who do, ought to be

commended for such efforts. Whist this enhances EPO’s eligibility for promotion and

entry into the regular police service, this alone does not elevate the status of an EPO to

that of a RPO. I agree with this reasoning and as such, it cannot now fall from the

Appellants’ lips that the police duties performed by them were not contemplated in the

enabling legislation.

60 See para. 75. Op. cit.

46

[84] Besides the legislative issue, the Respondent provided other evidence showing

materiality in differences to explain why RPO’s could not be comparators of EPO’s. First,

the EPOs’ appointment, terms of employment and assignment to duty differ significantly

from RPOs’. Second, the appointment and terms and conditions of employment are

equivalent to other EPOs’ in the public service and there is no justification for creating a

difference among the Appellants and their peers. Third, the nature of the duties of EPO’s

were specific to those units and it is specifically stated in the Cabinet decision that the

“Anti Squatting Squad should be used for no other duty”. This implies a distinct

difference in the nature of the duties between RPO’s and EPO’s. Any duties outside of

this does not entitle the Appellants to a finding of discrimination.

[85] Although this was not stressed, I think it necessary to highlight that the Appellants

conceded that they were not answerable to the Police Complaints Authority, a body

which has gained more national significance in Trinidad and Tobago and is a worthy

ground for assessing comparators.61

[86] In WEBSTER, Baroness Hale opined that, “the burden is on the complainant to show both

“likeness” and differential treatment, but once this is done, “the burden shifts to the State

to show reasonableness, objective purposefulness, justification, accommodation etc.”

The Appellants therefore bear the burden of showing that the differences in the

performance of duties or terms and conditions are material to the issue of whether one

group is a comparator of another group. Put another way, it is still the Appellants’ burden

to show that the differences are not material to the differences in treatment. Whilst it is

expressed in negative terms, the reasoning is clear.

[87] DISTINCTION FROM WEBSTER

In WEBSTER it must be remembered that the comparator issue was decided in those

Appellants’ favour, that is, that RPO’s were found to be comparators with the Special

61 See para. 2 of the Allan Mitchell affidavit and para. 38 of the Wayne Richards affidavit.

47

Reserve Police Officers. The case there largely turned on the State’s justification put

forward for the differentiated treatment. It was left for the Respondent in that case to

justify the difference in treatment. In dealing with that case, the JCPC acknowledged the

overlap between the “sameness question” as it pertained to deciding whether a group

was a comparator, the burden of proof laying on the Appellants’, and the “justification of

differences in treatment question”, which sees a shift in the burden of proof to the

Respondent. Lady Hale recognised that in that context that there was “considerable

overlap” between the “sameness” requirement in assessing comparators and the

justification requirement, and I would add, once the comparators had been established.

[88] This is not the situation in this case where I have found that RPO’s were not comparators

of EPO’s. There is no duty on the Respondent to show as a matter of law that the

differences relied upon are material to the differences in the treatment of the Appellants.

It remains the Appellants’ burden to bring credible evidence to assist the court with its

task of determining whether RPO’s were comparable to, analogous to, or broadly similar

to EPO’s by satisfying the two limited requirements. In this case, the Respondent did not

simply state the differences, but went on to show that the differences highlighted were

material to the differentiated treatment.

[89] I shall now address the alternative issue.

To reiterate my conclusions, I am of the view that:

i. the EPO's were not shown to be comparators to the RPO's; and

ii. the differences between these EPO's and RPO's were material

to the difference in treatment between the two groups.

As I said before, I note that the trial judge did not deal with this issue frontally. In his

judgment, he opined that if the RPO’s were found to be comparators, the Respondent

would have been hard pressed to deny the Applicants’ claim that their section 4(d) rights

were infringed. I note too that he was constrained by the state of the law at the time.

48

WEBSTER brought about a fresh approach to examining these issues. It is in that context

that I am taking the opportunity to determine whether the differences in treatment are

justified, I shall proceed to examine the issue of justification for the differentiation in

treatment between EPO's and RPO's briefly.

[90] On the assumption that the EPO's were comparators to the RPO's, any differentiation in

treatment must be justified (see requirements 2 and 3 in the ANISA WEBSTER CASE). We

note as well that in paragraph 25 of that case, Lady Hale acknowledged that there is a

considerable overlap between the "sameness" or comparators question and the

justification question. We find this to be an appropriate observation in the present case.

We find that the difference in treatment in this case was justified since that differentiation

had a legitimate aim and there was a reasonable relationship of proportionality between

the means employed and the aim sought to be realised.

[91] The policy of this jurisdiction is to supplement the protective forces by the establishment

and use of personnel engaged in protective services, to assist the regular police officers in

specific areas. If one were to draw reference to the United Kingdom (UK), I would hazard

a comparison to posit that the differences between EPO’s and RPO’s in Trinidad and

Tobago are analogous to the differences between the Territorial Police and the Ports and

Parks Police in the UK. The legitimate aim of creating those posts was to give limited

powers of policing in certain recognised and specified areas such as port policing and park

policing. In the case of EPO’s, that legitimate aim was manifested by their creation by

statute, vesting them with limited powers. In the case of the Applicants, those powers

were limited to engaging in inter alia anti squatting and praedial larceny policing. 62

62 The territorial police forces cover a particular geographical region and are governed by the POLICE ACT, 1996. This is an Act to,

“consolidate the Police Act 1964, Part IX of the Police and Criminal Evidence Act 1984, Chapter I of Part I of the Police and Magistrates’ Courts Act 1994 and certain other enactments relating to the police.” The Act addresses inter alia: the organization of police forces and the division of police areas in England and Wales; the establishment and organization of the Metropolitan Police force; and the officer ranks which may be held by an officer in a police force. These ranks include: “chief constable; deputy chief constable and assistant chief constable” as well as “chief superintendent, superintendent, chief inspector, inspector, sergeant and constable.” Comparatively, both port and park police function under specific legislation for that area. Port Police operate under the HARBOURS, DOCKS AND PIERS CLAUSES ACT 1847 (“HDPCA”) and the MARINE NAVIGATION ACT 2013. The Parks Police have powers of a constable within their limited jurisdiction and are not constables as dealt with in the general

49

[92] Further, the deployment of these Appellants was, on the evidence, proportional to this

aim since, as stated above, they were for the most part deployed on their anti squatting

and praedial larceny duties or where they were not so deployed, they were only allowed

to perform limited policing duties of lesser frequency and at a lower level than RPO's, and

specifically, always under the supervision of an RPO. Therefore, any difference in the

treatment of these EPO's from the RPO's had a legitimate aim that was reasonably

proportional to the means used to secure that aim. Hence, there was no actionable breach

of the equality provisions in the Constitution.

[93] PROMOTIONS

At the hearing of the Appeal, Justice of Appeal Smith raised for the parties’ consideration

the following:

Whether the sole designation of District/Estate Constable is indicative of the

discrimination faced by the Appellants who assert that they will not be able to

be promoted as RPO’s are promoted and therefore would this amount to a

further illustration of the allegation of a breach of their Constitutional rights

under section 4(d)?

Neither party grappled thoroughly with this issue. In answer, the Appellants laid a

complaint that they were not interviewed or subject to examinations for promotion, or

given an opportunity to act in a vacant position. There was speculation that “the State …

Police Acts. These constables are responsible for policing parks and specific lands and their powers are vested in the EPPING FOREST ACT 1878 and PARKS REGULATION (AMENDMENT) ACT 1974.

Under Section 79 of the HDPCA, port police forces are sworn in as “special constables”. These special constables have the full powers of a constable on any land owned by the habour, dock or port, or any land within one mile of same. Under the MARINE NAVIGATION ACT, this restriction can be removed with the consent of the local police chief officer. Section 79 also bestows the power of appointment of these “special constables” onto any two undertakers of the habour, dock, or port. “Constable” under this legislation means an officer of any rank. This also includes special constables of home office police forces who are part time and unpaid volunteers, who are under the control of the chief constable of the force. Port police forces range from 4 to 50 officers in personnel and differ in functions. Sworn constables, whilst dealing with the same types of issues as Home Office, they are restricted as to the location of their jurisdiction. Serious and major crimes usually become the responsibility of the local territorial police.

50

would have been looking to conduct promotions of those Estate Constables who were not

performing the duties of regular police and not the Appellants who were performing

regular police duties”. The Respondent maintained that the Appellants as EPO’s were

part of the Public Service and their promotional eligibility resided in that service. The

evidence provided showed that by several Legal Notices, there have been designations of

other offices in the Estate Police stream, to wit, Estate Corporal, Estate Sergeant, Estate

Inspector and Estate Assistant Superintendent.

[94] The short answer is that the affidavit evidence presented by the Respondent shows that

within the designation District/Estate Constable, there are several ranks, namely Estate

Corporal, Estate Sergeant, Estate Inspector and Estate Assistant Superintendent. Within

the organization of the public authority charged with responsibility over the EPO’s, the

Public Service, there are promotional opportunities available to them. This therefore

cannot be indicative of any illustration of discrimination sufficient to ground a claim under

section 4(d).

[95] f. (i) Whether the Respondent owed a duty of candour in this case;

(ii) The nature of a ‘public authority’;

(iii) The public interest; and

(iv) The actual effect of differences in appointment between the two classes of

officers.

f(i) THE DUTY OF CANDOR IN PUBLIC LAW

Mr. Maharaj tried to flip the burden of proof by inferring that the Respondent had

breached its duty of candor since if the assertion was that the Appellants’ evidence was

not correct, the Respondent was under a duty to supply the correct evidence. By failing

to do so, Mr. Maharaj encouraged the court to make adverse inferences against the

Respondent. Mrs. Baptise-Mohammed made short shrift of this and referred the court

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to the OSWALD ALLEYNE63 case and the dicta of Bereaux J.A. in which the learned judge

stated that that duty does exist but will arise only in circumstances in which the Appellants

in this case would have discharged the “initial burden by the production of cogent

evidence and sufficient evidence”. Only then, will the burden shift.64 I too agree with the

judgment of Bereaux J.A. on this issue. The burden of leading cogent evidence in support

of their case continues to rest on an applicant until successfully discharged.65

[96] f(ii) WHAT IS A “PUBLIC AUTHORITY” ?

Early in his submission, Mr. Maharaj took issue with the trial judge when he opined that

after all of the evidence and arguments before him, the EPO’s had made out a “a strong

case for their reclassification within the public service but that is a matter for the public

service”. Mr. Maharaj opined that “that was not the issue in the case. The issue in the

case was that if they were treated unequally by a Public Authority, whether it is a matter

for the Public Service Commission or not the Public Service, it was irrelevant”.

[97] The admonition to a “public authority” in section 4(d) of the Constitution, has to be read

in context. It cannot and is not capable of a wide-ranging meaning, such that all bodies

can be regarded as a public authority charged with the duty to act in a manner consistent

with section 4(d) of the Constitution. I think that the trial judge’s words must be read in

the following way. Having come to the conclusion on the evidence before him that the

Estate Police Association was not the recognized bargaining unit for the Appellants given

their status as public officers, the Public Service Association was the body charged with

dealing with issues of promotion and remuneration on behalf of its members. One cannot

lose sight of the fact that the EPO’s are public officers belonging to the Manipulative Class.

63 Op. cit. 64 Para. 22 “But that cannot mean that the Public Authority must be called upon to produce evidence to plug gaps in a claimant’s

case.”. 65 See Transcript of Proceedings. P. 25. Lines 5 – 19.

but that cannot mean that the Public Authority must be called upon to produce evidence to plug gaps in a claimant’s case. It is for the claimant who alleges to prove his case...concerning the burden of proving facts or leading evidence…the existence of the duty of candour on the Appellants’ part does not divest a litigant who initiates legal action of his or her duty to prosecute and prove his or her case, and he or she must produce proper and sufficient evidence to discharge that burden.

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[98] This is in keeping with Lady Hale’s dicta in WEBSTER where she identified that the court’s

concern was whether “the actual treatment of these officers by the public authority in

charge of them is a violation of s 4(d).”66 In that case, the particular public authority

under scrutiny was the Police Service. In this case, the complaint seems to encompass

both the Police Service and the Public Service under the umbrella “The Executive”. I do

not think that a claim for discrimination pursuant to section 4(d) can be so wide ranging.

I reiterate Lady Hale’s sentiments that the claim is to be grounded against the authority

in charge of the Appellants, in this case, the Public Service.

[99] f(iii) PUBLIC INTEREST

Harris J’s dicta67 that the Appellants, as public servants, “could not be treated favourably

(as they are indeed asking) over the other Public Servants of equal grade including the

other Estate Constables, without exciting the concern of the Court that it would in effect

be meeting out unequal treatment to the other said Public Servants of equal grade…” is

even more telling as to why RPO’s could not be comparators with these Applicants and

were the Court to rule in their favour, I can take no issue with the judge’s comment and

conclusion on this.

[100] f(iv) ACTUAL EFFECT OF DIFFERENCES IN APPOINTMENT

I must touch on this, as this issue is one of importance to the wider general public service.

The RPO’s are appointed by the Police Service Commission and the Commissioner of

Police, are within the police service, and are answerable to the Commissioner of Police.

The EPOs are appointed by the Public Service Commission and could have been assigned

to work and perform whatever duties were assigned by the Head of the Department, in

the Public Service. These Appellants found themselves in the Ministry of National

Security. They could have easily been assigned to another Ministry, for instance to the

Ministry of Health, to perform the duties laid out in the SUPPLEMENTAL POLICE ACT68.

66 See para. 28 of THE WEBSTER CASE op. cit. 67 See para 34 of the Judgment of Harris J. 68 Op. cit. note 2 at sec. 4(2).

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Instead, they were assigned duties of the Praedial Larceny Squad in the Ministry of

National Security, subject not to the Commissioner of Police as RPO’s were, but to the

head of that “Estate Department”, in this case, the officer in charge of the Estate/Division.

This is evidenced at paragraph 33 in Sgt. Wayne Richard’s Affidavit, which is unchallenged

on that point. How does the place of performance of their obligations elevate them over

those of their class?

[101] Further, a waiver by Cabinet in relation to absorption into the regular police service does

not assist eleven of these Applicants. This was not a broad and sweeping decision but

was limited to some members of the squad. The executive may take whatever

steps/decisions it deems necessary. It can be of no general application and of no

assistance to those not absorbed in the regular police force and who are the Appellants

in this matter.

[102] The conclusion above, now leads neatly into the next issue of refusal of the

Applicants’/Appellants’ application for leave to cross-examine.

THE REFUSAL BY THE TRIAL JUDGE OF THE APPLICANTS’/APPELLANT’S APPLICATION

FOR LEAVE FOR CROSS-EXAMINATION

g. What is the effect if any, of the trial judge’s refusal of the

Applicants’/Appellants’ application for leave to cross-examine on

the conclusions in this case?

Mr. Maharaj dealt with the failure to cross-examine in the context of assessing the trial

judge’s findings on the evidence. I am of the view that this a valid concern but in a limited

circumstance. I think, despite the passage of time and in the interests of fairness, that it

is open to this court to consider this issue and deal with it. I have examined the evidence

thoroughly and I share some of Mr. Maharaj’s concerns. I do find that the refusal of cross-

examination casts a pale over the conclusions and final orders which this court can grant.

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[103] As I said earlier, certain realities must be appreciated in this matter. Suffice it to say, that

neither the trial judge nor the Appellants could have reasonably expected to act

differently. In the case of the trial judge, he was bound by the prevailing Court of Appeal

decision in the WEBSTER CASE as to how matters such as this were dealt with. The

prevailing law was that differences in legislative underpinnings was an effective bar to

obtaining a declaration pursuant to section 4(d) of the Constitution. The trial judge

however, went beyond the stricture of legislative underpinnings, and we commend him.

[104] I have examined the evidence thoroughly and I share some of Mr. Maharaj’s concerns. I

do find that the refusal of cross-examination casts a pale over the conclusions and final

orders which this court can grant. In relation to the Applicants, the prevailing Rules of

Court and practice69 at the time did not encourage appeals on procedural issues as

obtains now under the Civil Proceedings Rules 1998, (CPR). This matter was filed when

our civil justice system was in transition and fell victim to that period. The matter

continued and was heard as an ‘Old Rules’ matter, winding its way through the system.

During the time of hearing and the filing of this Appeal, thinking and law changed and

now afforded the Parties a new approach to cases such as these. Of more importance,

the thinking on appeals on matters of procedure has undergone dramatic change.

Procedural appeals are now commonplace. In that regard, I do not lay much store on the

fact that this was not a substantive ground of appeal.

[105] Sgt. Richards stated that the Applicants performed a mixture of regular police duties and

duties associated with the Praedial Larceny and Anti Squatter Squads for the duration of

their service. This was confirmed by eleven of the Applicants. My conclusion and orders

in relation to those Appellants will not change. For the reasons outlined above, they have

not proved that the RPO’s were comparators. On the alternative ground, the Respondent

has discharged its burden to show that the differentiated treatment was justified since

there was a legitimate aim, which saw a reasonable relationship of proportionality

69 RULES OF THE SUPREME COURT 1975.

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between the means employed and the aim to be realized. As a result, their claim under

section 4(d) of the Constitution fails.

[106] My concern lay with how to treat with Appellants #4 Officer Heralal and #11 Officer

Williams. They deny that they performed a mixture of duties. Appellant #4 Officer Heralal

stated that he performed regular police duties exclusively since 1992. Applicant #11,

Officer Williams asserted that his exclusive performance of regular police duties

commenced in 2000. It is patent that there was a dispute of fact arising on the affidavits

in relation to whether two of the Applicants, #4 and #11 performed regular police duties

exclusively.

[107] Such a recognized disparity in evidence, could only be resolved by cross-examination of

the deponents. It is at that stage that the trial judge may decide whether a finding of fact

may make a difference to the conclusion as to whether the RPO’s were comparators and

whether the differentiation in treatment was justified. Further, the trial judge will

determine whether these two Applicants can be severed from the others and treat them

accordingly. It is important to determine this issue since the case in relation to these two

Applicants may take another flavor.

[108] In the circumstances, I am of the view that the decision of the trial judge to refuse the

Applicants’ application for leave to cross-examine was wrong in the context of the specific

and limited issue that I identified. To that extent, we must set aside the orders in relation

to those Appellants affected and remit the matter for continued trial and determination.

It may be late in the day, but I think that the ends of justice will be best served by this

course and I would enjoin the trial judge and Counsel to treat with this matter as one of

urgency.

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[109] CONCLUSION

Save and except that issue concerning the refusal of leave to cross-examine, I am of the

view that the trial judge painstakingly went through the affidavit and the evidence of

similarity supplied by the Appellants and weighed it against the evidence of the

Respondent, and found it lacking. The trial judge’s conclusions and findings save those

alluded to above, cannot be described as unreasonable or unsupported by the facts and

evidence. I agree that the Appellants, save Officers Heralal and Williams, have failed to

discharge the burden of proof placed on them. Having failed to discharge the evidential

burden, the case could have ended there since the need for the State to justify the

differences does not arise.

[110] However, having examined the issue of justification, I found on the evidence, that had

justification been necessary, the Respondent would have satisfied me of the necessity for

the differentiated treatment, and moreover that the difference in the treatment of these

EPO's from the RPO's had a legitimate aim, that was reasonably proportional to the means

used to secure that aim. In the premises, I do not find that the trial judge was so plainly

wrong on the main issues concerning the Appellants, save Officers Heralal and Williams.

DISPOSITION

1. The appeal is dismissed save and except for Appellants #4 and #11.

2. The orders of the trial judge are affirmed save and except for Appellants #4

and #11.

3. The Appellants, save and except for Appellants #4 and #11, to pay the

Respondents’ costs to be taxed in default of agreement.

4. In relation to Appellants #4 and #11, leave is granted to the parties to cross-

examine the deponents on the following paragraphs:

a. Affidavit of Wayne Richards sworn on 5th April, 2007: Paragraph 33

“Of the remaining Applicants all except Rupert Roy Williams are

assigned to duty in the Praedial Larceny Squad in the divisions

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located throughout Trinidad. On 1st January 1995 Rupert Roy

Williams was assigned as a driver to the Guard and Emergency

branch and on 4th March 2001, he was assigned to the Inter

Agency Task Force from the Praedial Larceny Squad. At the Inter

Agency task Force he performs the duty of a driver only.

b. Joint Affidavit in Reply filed by the Applicants on 25th January, 2008:70

i. Paragraph 2 (vi):

Indar Heralal say for myself … In 1992, I was transferred to the

San Fernando Police Station where my duties included charge

room duties, escort duties and other regular police duties. In

2006 I was transferred to the San Fernando Model Station

where to date I continue to perform regular police duties at the

Criminal Investigation Department and the Task Force. Since

1992 I have not performed any praedial larceny or anti-squatter

duties.

ii. Paragraph 2 (vii) (b):

I Rupert Roy Williams … Since 2000 I have not performed any

praedial larceny duties and I have been required to perform

solely regular police duties. In 2005 I was transferred to the

witness protection unit where my duties included gathering

intelligence on people who commit murder. … In 2006 I was

transferred to the Inter Agency Task Force where my duties

include patrols and enquiries in high risk areas.

5. The matter is remitted to the trial judge to hear and determine the veracity of

the evidence with respect to Appellants #4 and #11, and to make such orders

as to damages and costs as are necessary.

70 See Record of Appeal pp 616 – 617.

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6. Should there be an order for costs, the successful party recover the costs of

this appeal determined at 2/3 of the costs as taxed or agreed below.

/s/ C. Pemberton, J.A.

I have read the judgment of Pemberton J.A., I agree with it and have nothing to add.

/s/ G. Smith, J.A.

I have read the judgment of Pemberton J.A., and I too agree.

/s/ M. Mohammed, J.A.