CITATION

Quincy McEwan et al v The Attorney General of Guyana [2018] CCJ 30 (AJ) 1

INTRODUCTION
Constitution law and its protection of human rights including the right of equality and
nondiscrimination is of immense importance in any society including Guyana. Every individual
and group must have their rights protected. The case Quincy Mc Ewan et al v The Attorney
General of Guyana addresses some of these topics by enforcing the rights of a group of
individuals who are considered “different” in a society that ostracizes such difference. This case
has changed the legal spectrum’s application of certain laws that affects these individuals.

FACTS
The first two named appellants, Quincy McEwan and Seon Clarke, were awaiting transportation.
McEwan was dressed in a pink shirt and a pair of tights with a black hair piece. Clarke was
wearing slippers, a jersey and a skirt. A police vehicle subsequently passed by and they were
arrested and transported to the station where they were placed in the lock up. A few hours later,
the third and fourth named appellant, Joseph Fraser and Seon Persaud respectively were at a
snackette having meals. They were both dressed in a skirt and wore a red and black wig. Persons
nearby began to taunt them and an altercation ensued in which items were hurdled at the group
and Fraser was injured. They were both forced to flee for their safety. Police approached them
and they were taken to the station. While in custody, Fraser made several requests of the police
and none were granted. They were placed in a cell where they met McEwan and Clarke. At the
time of their arrest and time spent in the cell, they did not receive any explanation as to why they
had been arrested. At the Magistrate’s court, they learned for the first time that they had been
charged with the offence of loitering and wearing female attire in public place for “an improper
purpose.” The 1st - 4th named appellants pleaded guilty to the charge of wearing female attire for
an improper purpose. McEwan, Clarke and Persaud were fined a sum of money. Upon imposing
the sentence, the Magistrate told the appellant that they must go to church and give their lives to
Christ and that they were confused about their sexuality. Constitutional proceedings began in the
high court where they contended a number of constitutional violations which included section
153(1) (xlvii) of the Summary Jurisdiction Offences Act, the Magistrates’ remarks, and the
vagueness of the section.

The judge denied all of their contentions except for the fact that the police had a duty to inform
them of the reason for their arrest and held that SASOD had no standing. The appellants
appealed to the Court of Appeal and the State contended that the appellants were abusing the
process of the court. The Court of Appeal upheld the decisions of the High Court and the
appellants appealed to the Caribbean Court of Justice. The attorney General cross-appealed the
refusal of the Court of Appeal to dismiss the proceedings.

ISSUES

1. Whether section 153(1) (xlvii) violates the 1st - 4th named appellants’ right to equality and
nondiscrimination guaranteed to them under Article 149 of the constitution.
2. Whether section 153(1) (xlvii) violates the 1st - 4th named appellants’ right to freedom of
expression guaranteed to them under Article 146 of the Constitution.
3. Whether section 153 (1) (xlvii) offends the rule of law given its vagueness with the use of
the terms “improper purpose: “male attire” and female attire.
4. Whether SASOD is a necessary and proper party to the proceedings.
5. Whether the remarks of the Magistrate were appropriate and if they were not, what
consequences, if any, should follow.

JUDGMENT
1. The CCJ held that section 153 (1) (xlvii) violates Articles (1) and 149D of the
Constitution. In doing so, they alluded to Roches v Wade which utilized a substantive
approach to safeguard equality rights. They made it clear that the principle of equality
and non-discrimination is rested on the inherent dignity of all human beings and their
entitlement to personal autonomy. They also referred to the opinion of Iacobucci J from
the Canadian Supreme Court where it was stated that human dignity is harmed when that
individual or group is marginalized, ignored or devalued. In effect, the 1 st - 4th named
appellants dressing in what is associated with women, are expressing their identification
with the female gender. This identification is part of their dignity. Article 153(1) (xlvii)
 therefore infringes on their personal autonomy which and criminalizes aspects of their
way of life.

2. In addressing whether Article 153(1) (xlvii) infringes appellants’ freedom of expression

as set out under Article 146, the court held that it infringed the appellants’ rights. They
opined that like other rights, the right espoused in Article 146 may be qualified by laws
that make provision for what is required in certain exceptions. There was nothing in the
submissions of the case to suggest that it was concerned with these exceptions.
Furthermore, they made it clear that how individuals choose to dress and present
themselves is important to freedom of expression. To concretize this view, they alluded
to the case of National Legal Services Authority v Union of India and Ors which held that
the expression of one’s views through words, dress, action is included in the right to
freedom of expression and no one should, therefore, live under threat for an
unconventional form of expression that poses no risk to society.

3. The court held that 153 (1) (xlvii) was vague. They alluded to Kolender v Lawson which
noted that a penal statute must not be vaguely worded. It must define the criminal offence
with sufficient clarity that ordinary people can understand what conduct is prohibited.
Section 153 (1) (xlvii) failed these tests as it did not provide details as to what would
construe “improper purposes.” Therefore, the cross-dressing person has no clue about
what is forbidden in the statute. Further, the courts made it clear that there is no attire that
is wholly male or female as the law suggests since many clothing establishments sell
unisex clothing.

4. The court further held that SASOD was rightfully placed as a party to the proceedings.
This was so because the appellants were not only challenging the constitutionality of their
treatment but rather the constitutionality of the legal provision since if it remained on the
law books, it could easily be applied in the future by any member of the public including
SASOD. They made it clear that courts should adopt a liberal approach in affording
 standing to individuals since it would be in the public’s interest to ensure the constitution
is properly interpreted and applied.

5. Ultimately, the court held that the remarks of the magistrate were inappropriate. They
made it clear that judicial officers may not use the bench to proselytize whether before,
during, or after the conclusion of court proceedings and that section 144 of the
constitution promises all persons charged with a criminal offence a fair hearing by an
impartial tribunal. The remarks by this magistrate would allow the appellants to believe
that this promise was not manifested.

IMPACT
The instant case has effectively cleared all vagueness, and doubt hanging over provisions
that were lying in the statute books of the Summary Jurisdiction Offences Act of Guyana.
The court has therefore struck down such ineffective provisions. This action has shown
that certainty remains in the application of the laws and there is still a body to uphold and
apply what the law mandates by uplifting the letter and the spirit of the Constitution.
Prior to this judgment, persons belonging to the LGBT community were stagnated by
section 153(1) (xvii) which infringed their basic constitutional right. With the
development of this judgment, it is clear to the Guyanese populace including the
legislative body that individual’s rights must be protected and as such they must live in
the society without thinking otherwise.

CONCLUSION
The ruling in Quincy McEwan et al v the Attorney General of Guyana has proffered on
the ineffectiveness of section 153(1) (xvii) which served to discriminate a particular
group of people. It makes it clear that this void section violates the constitutional rights of
the persons and must be struck from the Summary Jurisdiction Offences Act. This in
effect, has shown that since this article is inconsistent with several articles of the
Constitution, the constitution remains the supreme law of Guyana.
 BIBLIOGRAPHY

Legislation
 Summary Jurisdiction (Offences) Act of Guyana, Cap 8:02
Case Law
 Quincy McEwan et al v the Attorney General of Guyana [2018] CCJ 30 (AJ) 1
 Roches v Wade [2004]
 National Legal Services Authority v Union of Indian and Ors [2014] 4 LRC 629
 Kolender v. Lawson 461 U.S. 352,157 [1983]
 Dundas v The Attorney General [2014]
COURSE: LA 12C – LEGAL METHODS
ASSIGNMENT #3
[CASE NOTE]

USI: 1034493
LECTURER: MAG.ANNETTE SINGH
DATE OF SUBMISSION: 11/18/2019