MEANWHILE IN THE JUDICIAL CENTRE OF HAPPY VALLEY-GOOSE BAY… ;)

Decision of Judge John L. Joy

Law.

 The legal principles that apply to the use of handcuffs, leg shackles and other forms of restraint for in-custody accused in court are as follows:

(1)              every accused, whether in custody or not, has the right to appear in court free of any restraint;

(2)              the presiding judge, whether for a plea appearance, bail, preliminary inquiry, trial or sentencing hearing, has the discretion to decide whether an accused must appear in court in any form of restraint;

(3)              police and sheriff’s officers have the responsibility to provide security within courtrooms, but within applicable legal principles. A policy of restraints on all in-custody accused cannot be used to replace a plan to provide appropriate levels of security. The authorities must base their security plan on the assumption that in-custody accused may appear in court without restraints;

(4)              if the police or sheriff’s officers have a particular concern about an individual in-custody accused, then they must advise the Crown, and the Crown, if he or she concludes that the officers’ concerns have merit, may apply for a hearing on the use of restraints with that particular in-custody accused;

(5)              judges should give considerable weight to the views and expertise of the R.C.M.P. and sheriff’s officers concerning particular in-custody accused, but deference to them is inappropriate. The issue of restraint in the courtroom is a matter for the judge to decide;

(6)              the court, the Crown or the Defence may raise the issue of restraint of in-custody accused;

(7)              once the court, the Crown or the Defence raises the issue of restraint of in-custody accused, then the judge must conduct a hearing;

(8)              restraints in the courtroom should be the exception not the rule;

(9)              judges must decide the issue of using restraints on in-custody accused on a case-by-case basis;

 (10)         the unnecessary or unreasonable use of leg shackles, handcuffs or other apparatus constitutes a civil assault;

(11)         the Royal Canadian Mounted Police Act, the Royal Newfoundland and Labrador Constabulary Act, 1992 and regulations do not supersede the judge’s authority to determine the issue of restraints used on in-custody accused in court;

(12)         a blanket policy of restraints on all in-custody accused is not lawful;

(13)         it is illogical for police or sheriff’s officers to use leg shackles, handcuffs or other restraints in court on in-custody accused for whom the Crown is recommending release, including the young, the elderly or the frail, unless there are specific grounds to believe that each individual person will be violent or attempt escape. Such an approach brings the administration of justice into disrepute;

(14)         judges have the discretion to decide if an accused sits in the criminal dock,  with Defence counsel, or elsewhere in the courtroom; and

 (15)         lest there should be any doubt in this particular case, a blanket policy of presenting in-custody accused, such as Dina Kalleo, in leg shackles and handcuffs in court in Nain is illegal, may amount to a civil assault and give rise to an award of damages. She may also have other remedies under the Charter of Rights and Freedoms.

[96] Enright highlighted three incidents that supported his opinion: (1) Ottawa police officers in February 2015 handcuffing of a nine-year-old autistic boy; (2) Brampton police officers in February 2015 handcuffing in court a young female lawyer and marching her out of the crowded courthouse to a marked police car; and (3) Quebec police officers in May of 2014 handcuffing three men charged in the Lac Megantic rail tragedy and marching them through a crowd of onlookers and media into the courthouse. The police did this in the instance of one of these accused who had volunteered to turn himself in to police prior to his court appearance. “Instead, he was arrested at his home by an armed SWAT team.” This was an instance of pure theatre, and had nothing to do with security or safety of the public.

 [97] Clayton Ruby, the legal scholar and well-respected Defence counsel, commented about the arrest of the young female lawyer in Brampton, Peel County: “Peel Police’s conduct was not an act of policing. It was an act of thuggery.”

[98] We see far too often police or sheriff’s officers leading male and female youth between the ages of 12 and 18 into court in leg shackles and leaving them in that state throughout their court appearance, whether that is a bail hearing, plea appearance, preliminary hearing, trial or sentencing hearing. Sometimes they also add handcuffs, as they did with the in-custody youth in Nain in February that I have referred to in the Background section of this decision.

 [99] Judges have no control over what methods of restraint the police or sheriff’s officers use in the transportation of in-custody accused to court or in other situations, but once those prisoners come through the door of the courtroom that is a different story.

[100] The police and sheriff’s officers should, nevertheless, be mindful of the law of restraint and the moral responsibility that all citizens have to address in the proper treatment of other human beings with whom they come in contact. Police duty concerns public safety, but most certainly does not involve humiliating in-custody accused, undermining human dignity or diminishing the presumption of innocence. There may well be legal remedies for in-custody accused in these other out-of-court situations (See Hamilton v. Massie and Gordon v. Denison), but this decision is limited to the restraint of in-custody accused in court, and specifically Dina Kalleo.

[102] The court’s obligation is to do whatever is necessary to comply with the law on the presentation of in-custody accused in court on circuit or in Happy Valley-Goose Bay to preserve human dignity and the presumption of innocence. The appearance of all in-custody accused in leg shackles and handcuffs is not an option in a free and democratic society.

READ THE FULL DECISION…

Citation: R. v Kalleo, 2016 CanLII 7716 (NL PC), <http://canlii.ca/t/gndq8

 

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

Up ↑

%d bloggers like this: