ST. JOHN'S, N.L. — A Labrador judge has ruled — for a second time — that inmates should not attend court in restraints, saying the Crown could be liable for civil assault, intentional infliction of mental cruelty and debasement of human dignity, among other things.
Provincial court Judge John Joy made the ruling last week after a hearing in Happy Valley-Goose Bay in December, in which sheriffs escorted a 16-year-old to court in restraints. The teen was appearing before the judge for a consent release, meaning the Crown had already agreed to release him to await his next court date.
At the time, Joy was newly returned to the bench: he had retired as a full-time judge in 2017, but returned to provincial court to preside part time as of that week. The year before he retired, Joy had ruled in an unrelated case that the policy of using leg shackles and handcuffs in court is illegal.
He returned to find the policy still in effect.
“(I) discovered that, not only in the case of (the teen) but as a general practice, the sheriffs officers had reverted to presenting all in-custody accused in court in restraints,” Joy wrote.
The boy’s lawyer filed an application to have the restraints removed; the prosecutor did not object and Joy ordered the sheriffs to remove the shackles and cuffs.
The practice of using restraints on those in custody who are accused of a crime undermines the presumption of innocence, Joy wrote, and is “quintessentially illegal” if the accused doesn't present a threat to anyone in the courtroom.
“Such action discounts the human dignity that anyone, including an in-custody accused, has reason to expect in a free and democratic society. It presents an accused to the court as not someone who stands before the court innocent until proven guilty beyond a reasonable doubt,” he said.
The restraints imply the person has been convicted in advance, he said, and they are denied even the freedom of movement they have in prison.
There may be circumstances where the restraints are warranted, Joy acknowledged, but a hearing would be needed in those rare cases to justify the need based on public safety. If police or sheriff’s officers have a particular concern with an inmate, they should inform the Crown. If the prosecutor decides the concern is warranted, they can apply for an order to use restraints on the accused in court, Joy said.
The use of cuffs and shackles is especially illogical in the case of inmates for whom the Crown is recommending release, and is particularly dangerous when it comes to youth, elderly, frail or mentally ill people, he stated.
St. John’s defence lawyer Mark Gruchy, a 2016 recipient of the province’s Human Rights Award, commended Joy when he made the original ruling four years ago, and agrees with the judge’s reasons again now.
It’s not court policy in Newfoundland and Labrador for inmates to be restrained during court proceedings.
“It’s not something that’s done here (in St. John’s) at all, particularly if there’s a jury. In my experience, the judge is on that as fast as the lawyers,” Gruchy said.
In most cases, restraints are removed just before an inmate enters the courtroom, or just before they take their seat in the dock. Juries don’t usually see an accused in restraints, given the impression it could leave before a trial is over.
“Generally, aside from the fact that a person is presumed innocent and should not be shackled needlessly, the judge is essentially the authority in the courtroom, barring something beyond their power or some statutory definition,” Gruchy said.
If a person’s behaviour is such that there’s a safety issue, there are applications that can be made to the court to have them attend by video or some other way, he explained.
In his decision last week, Joy said a failure to comply with the law on the use of restraints with accused people in the courtroom could result in a judge ordering sheriff’s officers or police to show reasons why they shouldn’t be found in contempt of court.
The accused may seek damages for civil assault and breaches of their rights for the arbitrary use of restraints on them during court proceedings, he said.
“We will all be the poorer for our failure to recognize and apply the law, particularly when such failure undermines the golden thread of the presumption of innocence and the respect for liberty and human dignity to all who appear in court to see justice done,” Joy wrote.
Twitter: @tara_bradbury
Facebook: @telegramtara