The Use of Leg Shackles and Handcuffs on the Accused
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.
R. v. Fortuin, 2015
ONCJ 116.
The presiding judge has the discretion to decide whether an
accused must appear in court in any form of restraint. A hearing is required to enable the presiding
judge to properly exercise his or her discretion on the issue.
R. v.
Jones, 1996 CanLII 8006 (ON SC), 107 C.C.C. (3d) 517.
There is a longstanding presumption that accused persons
appearing in court should not be restrained unless the need for restraints has
been justified by the Crown.
R. v. McNeill (1996), 1996 CanLII 812 (ON CA), 29 O.R. (3d) 641 (C.A); 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), 1996 CanLII 8006 (ON SC), 29 O.R. (3d) 294 (Gen.
Div.) at paras. 28-31. See also R.
v. Cambridge Justices, Ex parte Peacock (1992), 156 J.P.R. 895 (Q.B.), at
p. 902:
“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.”
If the Crown takes the
position that restraints are necessary, it bears the onus of establishing
reasonable grounds for their use:
R. v. Wills, [2006] O.J. No. 3662 (S.C.J.), at para. 45.
A balance should be struck between the duty of the judge to
ensure the safety of all participants to the proceeding and to prevent escape
on the one hand, and the need to maintain the dignity of the prisoner in the
context of the presumption of innocence on the other. In effecting this balance
the views and expertise of the security personnel will no doubt be given
considerable weight. The ultimate determination, however, must be made by the
presiding judge and not by security staff.
See
R. v. McNeill (1996), 1996
CanLII 812 (ON CA).
Summary
The legal principles that apply to the use of handcuffs,
leg shackles and other forms of restraint for in-custody accused in court were usefully
summarized by the Provincial Court of Newfoundland and Labrador in R. v. Kalleo, 2016 CanLII 7716 (NL PC):
(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) 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) the 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. It may amount to a civil assault and give
rise to an award of damages. The accused may also have other remedies under the
Charter of Rights and Freedoms.
(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.
Stuart O’Connell, O’Connell
Law Group, www.leadersinlaw.ca
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