CITATION: R. v. Lee, 2017 ONSC 6989
COURT FILE NO.: CR-15-9423
DATE: 20171123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TIMOTHY LEE
Defendant
Peter Westgate and Jeffrey Costain for the Crown
James Miglin and Susannah Chung for the Defendant
HEARD: November 20, 2017
ruling on use of leg restraints
Boswell j.
[1] Mr. Lee is on trial for murder. Today is day four of pre-trial motions scheduled for five weeks. There are a further two weeks of motions scheduled in February 2018. The trial proper is scheduled for seven weeks beginning in March 2018.
[2] Mr. Lee has been spending his time in the courtroom in a single occupant, cubicle-style prisoner’s dock. He is without handcuffs but his legs are shackled. The dock is flanked by two special constables.
[3] Mr. Lee’s counsel asked the court to order the shackles removed. He said they were hurting Mr. Lee’s legs. They were also unnecessary, he said, given that Mr. Lee has no history of problematic behaviour in the courtroom. To the contrary, he sat at counsel table during the preliminary hearing, without incident.
[4] The Crown opposed the removal of the shackles for security reasons.
[5] A brief hearing was conducted.
[6] The Crown tendered one witness: Sergeant Broughton of the York Region Police Service. He is charged with court security and prisoner movement within the Newmarket court house.
[7] Sgt. Broughton testified that there are a number of reasons why, from a security point of view, the constabulary oppose the remove of Mr. Lee’s leg shackles. They include:
(a) Mr. Lee has been identified as being affiliated with gang members;
(b) Mr. Lee has been involved in a violent incident while lodged in the court house cells; and,
(c) The court house security detachment is under significant staffing pressures. Yesterday, for instance, there were forty-three prisoners on site and only forty special constables. Many prisoners, including Mr. Lee, must be accompanied by two special constables. Moreover, should the court order Mr. Lee’s shackles removed, a third constable, this one armed, would have to be assigned to the courtroom door to prevent any prospect of escape.
[8] I have yet to receive any evidence supporting Mr. Lee’s affiliation with any gang. There may be compelling evidence of such an association, but I am not privy to it. At this stage I know of no such association. There have been few visitors to the courtroom thus far and certainly none that give the impression they are gang members or other affiliates. I am unable, in the circumstances, to determine what level of threat the purported gang affiliation might create.
[9] I have reviewed a report of the incident of violence in the cells area involving Mr. Lee. The report indicates that in August 2016, male A struck male B in the face. Mr. Lee came to the aid of male A, but does not appear to have been directly involved in any violence. A and B were separated. On the basis of this report, I am unable to conclude that Mr. Lee presents a threat of violence in the courtroom.
[10] I have no indication that Mr. Lee has a criminal record for violent conduct. The conduct he is alleged to have engaged in giving rise to the current charges is obscenely violent. But he is, of course, presumed to be innocent of those charges.
[11] His demeanour thus far in the courtroom has been exemplary. I further understand that there were no issues with his conduct in the courtroom during the preliminary hearing.
[12] Sgt. Broughton has a difficult job. I am hugely sympathetic to his staffing pressures as well as the heavy burden he bears to ensure that persons using the court house are able to do so in a safe and secure environment. We are all well aware of how quickly and unpredictably dangerous situations can arise. His views are entitled to a great deal of weight.
[13] The controlling legal authority in Ontario on this issue is R. v. McNeill, 1996 CarswellOnt 2688 (C.A.). In McNeill, the Court of Appeal endorsed as the applicable law in this province, a ruling of Then J. made in R. v. Jones, 1996 CarswellOnt 1818 (Gen. Div.). Quoting Then J., they held that the determination of whether an accused person should be shackled in the courtroom is within the trial judge’s discretion and that:
The manner in which the discretion is to be exercised is for the judge to determine in the particular circumstance of each case in which the issue of shackling of a prisoner in the courtroom is raised. The authorities which have been cited to me suggest that a balance should be struck between the duty of the judge to ensure the safety in all participants to the proceeding and to prevent escape on the one hand, and the need to maintain the dignity of the prisoner in the context of the presumption of innocence on the other. In effecting this balance the views and expertise of the security personnel will no doubt be given considerable weight. The ultimate determination, however, must be made by the presiding judge and not by security staff. (Para. 37).
[14] The Court of Appeal said nothing about any rebuttable presumption that accused persons are not to be shackled in the courtroom. Other cases have suggested that such a presumption exists. Then J. cited one: R. v. M. (T.) (1991), 1991 CanLII 7246 (ON SC), 4 O.R. (3d) 203 (Prov. Div.). My colleague, DiTomaso J. cited another in R. v. Vickerson, 2006 CarswellOnt 475. In particular, he cited a decision of Laforme J., as he then was, in R. v. McArthur, [1996] O.J. No. 2974 (Gen. Div.) where he said the following, at para. 9:
Ultimately it is the presumption that an accused should not be restrained unless the Crown can demonstrate that there exists reasonable grounds for concern to the safety of the participants to the proceedings, including members of the public, and to prevent escape balanced against the accused's presumption of innocence which includes the requisite appearance of innocence. In the exercising of discretion upon balancing these competing interests, the end result must satisfy the hearing judge that, in all the circumstances of the particular case before him or her, the result is that the accused receive a fair and impartial trial.
See also R. v. A. (W.H.), 2011 NSSC 166 and R. v. Kalleo, 2016 CarswellNfld 66.
[15] The presumption of innocence is at the core of our criminal justice system. If an accused person – presumed innocent – is going to remain shackled in court, the need for shackling must be demonstrably justified.
[16] On the evidentiary record now before me, I am not satisfied that Mr. Lee poses either a flight risk or a safety risk in the courtroom that would justify the continued use of shackles.
[17] While I am certainly sympathetic to staffing issues, my concern is with the balancing of the presumption of innocence and Mr. Lee’s constitutionally protected right to a fair and impartial trial, against issues of safety and security in the courtroom. I cannot infer from the perceived need for one additional officer, that there will be a markedly heightened safety concern should the shackles come off. While there will be a cost associated with an additional officer, it is not beyond the capacity of the York Region Police Service to provide that officer. Moreover, that cost is of only peripheral concern in the context of the issues to be considered in the exercise of the court’s discretion.
[18] For the foregoing reasons, I order that Mr. Lee’s shackles be removed. Should circumstances change and Mr. Lee’s perceived risk increase, then of course the matter may be revisited.
Boswell J.
Released: November 23, 2017