Appeal, and the majority upheld the Magistrate’s decision. Two out of three of the judges believed that based on the appellant’s own responses, she had disqualified herself from any of the classes of persons entitled to protection under the Act and that they found it difficult to comprehend how a former intimate partner could be eligible to apply for a protection order. The appellant appealed to the CCJ.
Issues:
- Whether the appellant was entitled to seek protection under the Domestic Violence Act, as amended?
- Was the Magistrate correct to rely on the appellant’s opinion on an issue of law?
Held:
Issue 1
In interpreting the meaning of ‘former spouse’ under the Act, Justice Rajnauth-Lee used the literal approach, that is, using the natural and ordinary meaning of the word, and held that the appellant was a former spouse as contemplated by the Act. She noted that when interpreting legislation, not only should it be interpreted “to achieve the objectives of the legislation and the intention of Parliament”, but also regard must be had to “fundamental human rights, core constitutional values, and principles as contained in the Constitution and international treaty obligations”.
Justice Saunders, on the same issue, came to the same conclusion. He noted that the appellant was deemed as a former spouse and also a former cohabitant as she had lived with the first respondent ‘as man and wife’ in the same house for almost two years. She was also a former partner in a visiting relationship. Importantly, he noted that the appellant was a mother who was bringing proceedings against her child’s father. Without more, such a woman automatically is presumed to fall into one of the categories of persons eligible to seek a protection order.
It should be noted that an important function of a judge is interpreting the legislation before them so as to ensure that there is no absurdity or injustice in its application to the issue before them. The appellant was a mother seeking protection for herself and her young son from her son’s abusive father. Having regard to the domestic violence situation in the Caribbean and the purpose of the Domestic Violence Act, the decision of the Magistrate and the judges of the Court of Appeal that upheld the decision to dismiss the appellant’s application was wholly incorrect. Accordingly, the CCJ overturned the Court of Appeal’s decision and granted the appellant’s application for the protection order against the first respondent.
