A Provincial Court Judge in Newfoundland and Labrador has conducted an extensive review of cases that address the issue of restraint of in-custody accused in court. In R. v. Kalleo  N.J. No. 57, the accused faced charges of assaulting her domestic partner and for breaches of court orders. At the time of trial, she was in custody and had been denied bail. RCMP brought the accused to court in handcuffs and leg shackles. Defence counsel objected. From 2006 until February 2015, RCMP practice in Nain was to bring in-custody accused to court in leg shackles only. The new practice arose after police brought two male prisoners in both leg shackles and handcuffs. A police witness testified that the policy was necessary for security reasons given the layout of the courtroom exits and the fact that only one officer was available for court. The police witness testified that the practice was consistent with unwritten RCMP policy to keep all in-custody prisoners in handcuffs during all aspects of court proceedings to safeguard against escape attempts. Defence counsel submitted that the RCMP policy was not based on any kind of risk assessment of the accused. The Judge allowed defence’s objection.
Judge J.L Joy said every one of the cases reviewed adopted the principle that restraint of prisoners in a courtroom is within the sole jurisdiction of the presiding judge. One case, R. v. D.D., 2009 ONCJ 772, reviewed the practice extensively:
(a) The defendant was entitled to maintain her dignity in the context of the presumption of innocence unless there was a valid reason for the use of restraints on her.
(b) In balancing the need for safety of all persons in the courtroom and the prevention of escape against the need to maintain the dignity of the defendant in the context of the presumption of innocence, the views and expertise of the security personnel must be given considerable weight. Deference to the opinions of the security personnel is inappropriate. The issue of restraint is a matter of judicial determination.
(c) This Court has no authority over security measures outside the courtroom but can provide guiding directions on security measures which may impact directly on the ability of the court to receive evidence and decide the issue of liberty and on the propriety and dignity of the proceeding when the court is in session.
(d) There is no onus or burden of proof on either party. A practical approach considering the context of the case and evidence before the court will assist the court in using its discretion in determining security issues.
(e) When the issue of restraints is raised, be it by the Crown, defence or the Court itself, a hearing is required.
(f) Restraints in a courtroom should be the exception not the rule.
(g) The use of restraints must be decided on a case-by-case basis.
(h) The unnecessary use of handcuffs constitutes a civil assault.
(i) This Court can set its own guidelines on procedures surrounding the defendant being brought into the courtroom in restraints.
(j) Provincial statutes, including the Ontario Police Services Act do not supercede the Court’s authority to determine the issue of restraints.
In R. v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), Leggatt, LJ. at page 902 said:
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 magistrate must entertain it.
Citing R. v. F.D.J.F., 2005 CanLII 18707 (ON CA) and R. v. McNeill, 1996 CanLII 812 (ON CA), Judge J.L. Joy paraphrased:
(1) Police and sheriff’s officers should bring prisoners into a court room free of all restraints unless they have reasonable grounds to believe the prisoner will be violent or will attempt to escape;
(2) If the Crown, the police or sheriff’s officers intend to present an in-custody accused in court in restraints, then the Crown must make an application requesting an order authorizing those restraints. The court must then conduct a hearing;
(3) Police legislation and regulations do not override the authority of the court; and
(4) A judicial decision is required to determine the issue.
Other decisions, such as R. v. Smith,  O.J. No. 3671, R. v. McArthur,  O.J. No. 2974, and R. v. Brown,  OJ No 4682, also ruled that a blanket policy to have all prisoners appear in court in restraints was not lawful. Recently, in R. v. Fortuin, 2015 ONCJ 116, Justice Schreck in six paragraphs confirmed, yet again, that it is against the law for police or sheriff’s officers to present in-custody accused in restraints of any kind, whether leg shackles, handcuffs, or other restraint.
The main points that pertain to us from the Kalleo decision are:
- 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;
- 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 they conclude that the officers’ concerns have merit, may apply for a hearing on the use of restraints with that particular in-custody accused;
- judges should give considerable weight to the views and expertise of the police 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;
- 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;
- lest there should be any doubt in this particular case, a blanket policy of presenting in-custody accused in leg shackles and handcuffs into court is illegal, may amount to a civil assault, and give rise to an award of damages. The person may also have other remedies under the Charter of Rights and Freedoms.