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News and Views — Milligan's Criminal Law Advisor

Milligan's Criminal Law Advisor

By: Jeffrey Milligan

The onus is on the Crown to justify having handcuffs on defendants in the prisoner's dock

A defendant charged with theft under $5,000 and with breaching his probation order was in custody because his surety had revoked the bail a few days earlier. He decided to plead guilty.

When he was brought into plea court in the Ontario Court of Justice at Brampton, he was in handcuffs and the handcuffs remained on when he was in the prisoner's dock. This was in keeping with the practice there.

Justice Schreck asked if there was any reason why restraints were required and when he was informed that there was none, he ordered that they be removed.

In brief but very incisive reasons, Justice Schreck offered a salutary reminder that the principle is well established that there is a presumption that accused persons appearing in court should not be restrained unless the need for the restraints has been demonstrated by the Crown: see, for example, R. v. McNeill (1996), 29 O.R. (3d) 641 (Ont. C.A.) and R. v. Wills, [2006] O.J. No. 3662 (S.C.J.). The Brampton practice of keeping all in-custody accused in handcuffs unless or until an order was made to remove them was, he held, not in keeping with binding precedent and should be discontinued.

He went on to say that when prisoners are brought into court, handcuffs should be removed as soon as the prisoners are brought into the dock unless court officers are aware of a security concern respecting that individual accused. In that case, they should notify Crown counsel so that he or she can make the appropriate motion to the presiding judge.

R. v. Fortuin |
2015 CarswellOnt 2979 |
Ontario Court of Justice

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