BenchPress - Vol 41-2 - LawNow Magazine

BenchPress – Vol 41-2

Judge Restrains Restraint Policy

Newfoundland and Labrador Provincial Court Judge John Joy recently wrote a decision criticizing the police practice of automatically using leg shackles on prisoners. He stated that the practice of restraining prisoners without first determining if it is justified is humiliating, undermines the presumption of innocence, may amount to civil assault leading to damages, and is illegal. He commented “We have slipped into this practice of universal leg shackles on in-custody accused without legal authority, or even argument of any kind”.

Judge Joy wrote that “The law clearly states that the issue of restraint of prisoners in the courtroom is within the exclusive jurisdiction of the presiding judge and is subject to his or her discretion.”

The Judge set out a 15-point list of the legal principles that apply to the use of handcuffs, leg shackles and other forms of restraint for in-custody accused, beginning with: 1. “Every accused, whether in custody or not, has the right to appear in court free of any restraints” and including: “restraints in the courtroom should be the exception not the rule.”

Judge Joy stated that police and sheriff’s officers have the responsibility to provide security within courtrooms, but it must be done in accordance with the law. A blanket policy of using restraints cannot replace a plan to provide appropriate levels of security.
R v. Kalleo, 2016 CanLII 7716 (NLPC)

No Legal Basis for Removal of Hijab

Quebec Superior Court Justice Decarie has rebuked a lower court judge for telling Rania El-Alloul that she would not hear her case unless Ms. El-Alloul removed her hijab. The judge said that the courtroom was a secular place where the religious symbols have no place. She told Ms. El-Alloul “In my opinion, you are not suitably dressed. Decorum is important. Hats and sunglasses, for example, are not allowed. And I don’t see why scarves on the head would be either.”

Justice Decarie rejected that premise, stating “Indeed, the thesis adopted by Judge Marengo that a courtroom is a secular space where the religious rights of a person have no right to be cited has no force of law in Canada.” He wrote “The court sympathizes with Ms. El-Alloul and deeply regrets how she was treated.” El-Alloul c. Quebec(Procureure generale), 2016 QCCS 4821 (CanLII)

Brian’s Law

The Ontario Court of Appeal recently looked at Brian’s Law (Mental Health Legislative Reform) an Act passed in 2000 following the murder of well-known Ottawa sportscaster Brian Smith by an individual with untreated schizophrenia. The Act expanded the criteria for the committal of mentally ill persons and created community treatment orders, or CTOs. CTOs allow for community-based treatment and supervision for persons with past psychiatric hospital admissions. An advocacy group for persons with addiction and mental health issues challenged the law under multiple sections of the Charter of Rights, sections as well as s. 1, the right to fundamental justice. It and other intervenors argued that:

  • the purpose of the law was the protection of the public and that purpose was based on a false link between mental illness and violence; and
  • CTOs were an unjustifiable form of compulsory treatment.

The three-judge panel ruled unanimously that the law was constitutional. Justice Sharpe wrote that the law must be seen as an integrated scheme that balances public safety with treatment. “The legislation does not rest upon unproven stereotypes or assumptions about mental health and violence. Its dual purpose of promoting health and public safety is achieved through a carefully balanced scheme that requires a highly specific and individualized assessment of the patient’s mental health history, treatment needs and the risk that the individual poses to him or herself and the public at large.” He also rejected the argument that CTOs are unjustifiable. He ruled that CTOs under the Act give priority to the patient’s views and require an individualized assessment of the patient’s capacity to make treatment decisions before the patient’s views can be overridden. Patients also receive advice about their rights and the right to retain and instruct counsel before a CTO is issued, including advice about legal options such as a review of finding of incapacity to consent to treatment or involuntary hospital admission.

Thompson v. Ontario (Attorney General), 2016 ONCA 676 (CanLII)





Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the Editor and Legal Writer for LawNow Magazine at the Centre for Public Legal Education Alberta.

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