Thursday, June 4, 2015

Restraints on accused in Court

R. v. Fortuin 2015 ONCJ 116 is reproduced in full:

1     P.A. SCHRECK J.:-- Shane Fortuin pleaded guilty to one count of theft
under $5000 and one count of failing to comply with a probation order and received a suspended sentence and probation. At the time of his plea, Mr.
Fortuin was in custody as his surety had withdrawn a few days earlier. Mr.
Fortuin was brought into the courtroom in handcuffs and the handcuffs remained on after he was placed in the prisoner's dock. I inquired whether there was any reason why restraints were required and, having been informed that there were none, I ordered that they be removed. Because there appears to be a practice, if not a policy, in Brampton that all accused persons in custody be handcuffed while in the prisoner's dock, I thought it appropriate for me to explain my reasons for making the order.
2     In R. v. McNeill (1996), 29 O.R. (3d) 641 (C.A.), the Ontario Court of
Appeal affirmed the longstanding principle that there is a presumption that accused persons appearing in court should not be restrained unless the need for restraints has been justified by the Crown. In doing so, the Court relied on the decision in R. v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), at p. 902 (at para. 4):
They [Magistrates], not the gaoler, must decide whether a prisoner should be handcuffed in court. No prisoner should be handcuffed in court unless there are reasonable grounds for the apprehending that he will be violent or will attempt to escape. If an application is made that a prisoner should be handcuffed, the magistrates must entertain it.
See also R. v. Wills, [2006] O.J. No. 3662 (S.C.J.) at para. 45; R. v.
Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.) at para. 14; R. v. Jones (1996), 29 O.R. (3d) 294 (Gen. Div.) at paras. 28-31.
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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