BenchPress--Vol 41-2.

• Author: Mitchell, Teresa

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)

http://www.canlii.org/en/nl/nlpc/doc/2016/2016canlii7716/2016canlii7716.html

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)

http://www.canlii.org/fr/qc/qccs/doc/2016/2016qccs4821/2016qccs4821.html

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