Ontario judge condemns courtroom handcuffing

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A minor theft case isn’t the stuff of exciting legal news, but the presiding judge added a twist by blasting an apparent police practice on courtroom restraints.

In a decision released this week from a Brampton, Ont. Court case (R. v. Fortuin), Shane Fortuin pleaded guilty to theft under $5,000 and failing to comply with a probation order. Interestingly, he received a suspended sentence and probation (for failing to comply with a probation order).

Despite being a minor crook, Fortuin entered the courtroom wearing handcuffs and remained shackled while in the dock. Judge Peter Andras Schreck took exception to that. He ordered them removed and, later, released a brief ruling to explain his move.

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,” he wrote.

Schreck pointed to a 1996 case, R. v. McNeill, which affirmed the principle that suspects appearing in court shouldn’t be restrained unless the Crown can justify restraining them. That case quoted an earlier legal precedent stating when restraints are needed and who decides.

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.”

Schreck added that the McNeill decision represents Ontario law, so it overrules any practices or policies of local court 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,” Schreck said.

He also noted: “this is not the first time this view has been expressed in this jurisdiction.”

This decision comes just weeks after another Brampton handcuff hullabaloo. Lawyers and the media blasted Brampton police for the “embarrassing” February arrest of lawyer Laura Liscio, who they marched through the courthouse in full legal regalia and handcuffs to a marked police cruiser.

At least this ruling will likely spare Liscio excessive shackle-time when she appears in court.

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