Friday, March 6, 2015

In general prisoners are not to be handcuffed in court

R. v. Fortuin, 2015 ONCJ 116:

[3] If the Crown takes the position that restraints are necessary, it bears the onus of establishing reasonable grounds for their use: R. v. Wills, supra at para. 45.

[4] The presumption that accused persons should appear in court unrestrained is well established. The Court in R. v. Cambridge Justices cites authority from as long ago as 1726. The same principle has been recognized in the United States: Holbrook v. Finn, 475 U.S. 560 (1986) at pp. 568-569; Illinois v. Allen, 397 U.S. 347 (1970) at p. 344.

[5] R. v. McNeill represents the law in Ontario and is binding on this Court. It is not subject to the practices or policies of local court security personnel. The practice in this jurisdiction of keeping all in-custody accused in handcuffs unless and until an order is made to remove them is, in my view, contrary to law and should be discontinued. This is not the first time this view has been expressed in this jurisdiction: see R. v. Smith, [1996] O.J. No. 3671 (Prov. Div.). It is my understanding that handcuffs are routinely removed from in-custody accused in some other jurisdictions.

[6] In my view, when accused persons are brought into the courtroom, handcuffs should be removed as soon as they are placed into the dock unless the court officers are aware of a security concern respecting that particular accused. If that is the case, the officers should notify Crown counsel, preferably in advance, so that he or she may make the appropriate application before the presiding judge.

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