Thursday, April 19, 2012

Warrantless searches coming to Manitoba law courts?

Good Day Readers:

Reading the following article raised a couple issues. When Ontario enacts a new piece of legislation it's not unusual for Manitoba to follow suit 6-months to a year later with it's version. Assuming Bill 34 is eventually passed either in its present form or with revision, could that be a harbinger of what's coming here?

Recall in March of this year Vic Toews got a court order forcing Manitoba Court of Queen's Bench File Registry officials to turn over the names of those who had viewed his divorce file. Of course, it would have been incomplete because members of the media and lawyers are exempt from completing the application form which leaves a paper trail. Regardless, in our view it set a dangerous precedent. What's the next step? Will we reach the point where court security are empowered to demand the name, address, telephone number and one piece of photo identification before the public is allowed to enter a courtroom? We certainly hope not because that would, in our opinion, represent a serious erosion of the open court principle in which Canadians like to take pride.

Later this morning we'll be contacting Ombudsman Manitoba. Shortly after Justice Saull's decision to issue a court order an individual contacted OM requesting it appeal the ruling. Since then there has been no update. We'll let you know what if anything we're able to learn.

Clare L. Pieuk
Court ID proposal slammed
By Cristin Schmitz
April 20, 2012 Issue

Alarms are being raised about a proposed Ontario law that would compel everyone entering, or on, court premises to identify themselves and answer questions — ​as well as submit to warrantless searches of their person, property or vehicle — ​when requested to do so by court security.

Lawyers’ groups are demanding that counsel carrying valid Law Society photo identification be exempted at courthouses from the warrantless search provisions of Bill 34, Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, 2012.
OBA Public Affairs Committee Chairman David Sterns says Bill 34 measures are not necessary for courtroom security. [Photo by Paul lawrence/The Lawyers Weekly]

“In our view it is neither reasonable nor necessary to include lawyers in the search powers contemplated by Bill 34, as it relates to courthouses,” said Robert Zochodne, past chairman of the County and District Law Presidents’ Association.

“A search of the type authorized by Bill 34 might well involve a search of privileged communications,” including those between counsel and criminal accused client, said Zochodne, of Zochodne Bucci in Oshawa. “Bill 34 would authorize the search of that person’s lawyer…such search to be conducted by the very persons who are prosecuting him.”

Bill 34 would empower court security staff, “if it is reasonable to do so for the purpose of fulfilling” their security responsibilities, to require anyone wishing to enter a court house, or who is already inside of it, to produce identification, and to “provide information” to enable court security guards to assess whether that person poses a security risk.

Court staff could also search, without a warrant, a person on the premises where court proceedings are conducted, or who is entering or attempting to enter the premises, as well as “any vehicle that the person is driving or in which the person is a passenger, and any other property in the custody or care of the person.”

The measures are similar to the provisions in the Public Works Protection Act, which was enacted at the start of the Second World War and applies to public buildings in Ontario.

David Sterns, public affairs chairman at the Ontario Bar Association (OBA), predicted Bill 34 will be constitutionally attacked, if it passes as is. The bill’s provisions go against the open court principle, he said.

“There’s just no rational connection between having to identify yourself and maintaining security of the court perimeter,” said Sterns, of Toronto’s Sotos LLP. “It’s an intrusion on civil liberties.

“The OBA’s perspective is that no member of the public should have to present identification in order to enter the halls of justice. There are a lot of reasons why people would not want to self-identify. Some of them may be noble and some of them may not be. That’s their prerogative. These are public courts.”

Sterns suggested that requiring people to identify themselves, or explain their presence, could be used by police for data mining. Would it be permissible, for example, for security officials to ask people whether they had criminal records for violence?

“A lot of things go on in court, and a lot of those things are of interest to law enforcement, so we have concerns that someone’s presence in a courtroom is going to be used in a criminal investigation, or used to start a criminal investigation,” he said.

The Criminal Lawyers’ Association also has reservations about the measures. “Unless there are individualized grounds to detain and question a person, requiring identification is unnecessary and ripe for abuse,” said member Howard Krongold of Ottawa’s Webber Schroeder. “We accept the need for courthouse security, but this bill gives the power to identify and question citizens, as well as search their vehicles, simply for trying to enter a courthouse. Going to court is supposed to help protect our constitutional freedoms, not justify taking them away.”

When Minister of Community Safety and Correctional Services, Madeleine Meilleur, tabled Bill 34 on Feb. 22 she said the bill reflected a “consensus” achieved after the government consulted widely.

“I would like to emphasize that the legislation does not compel a person entering or attempting to enter a courthouse to submit to a search, produce identification or provide information,” Meilleur said in the legislature. “A member of the public can simply walk away.”

In an email, Meilleur told The Lawyers Weekly the bill “may...undergo refinements” as a result  of legislative committee study this month. “The government seeks to balance the desire to maintain an open and accessible court against the risk of violence and crime in the court house,” she said.

Abby Deshman, director of the Canadian Civil Liberties Association’s public safety program, has concerns about the potential scope of the bill. “There’s no parking lot for our downtown [Toronto] courthouses so it looks like it confers the power to search cars that are parked on a public street if that person is attempting to enter a courthouse.”

Although several of the measures in the minority Liberals’ little-publicized bill are opposed by the legal community, they could become law since the Progressive Conservatives expressed their support for the legislation during second reading debate.

The Ontario government is also intending to repeal the Public Works Protection Act, which applies to any “public work” and which was invoked to protect the security perimeter at the G20 summit in Toronto in 2010. The courthouse security measures in Bill 34 are contained in amendments to the Police Services Act.


Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act (2012)

Powers of person providing court security

138. (1) A person who is authorized by a board to act in relation to the board’s responsibilities under subsection 137 (1) or who is authorized by the Commissioner to act in relation to the Ontario Provincial Police’s responsibilities under subsection 137 (2) may exercise the following powers if it is reasonable to do so.

1. Require a person who is entering or attempting to enter premises where court proceedings are conducted or who is on such premises,
i. to produce identification, and
ii. to provide information for the purpose of assessing whether the person poses a security risk.

2. Search, without warrant,
i. a person who is entering or attempting to enter premises where court proceedings are conducted or who is on such premises,
ii. any vehicle that the person is driving or in which the person is a passenger, and
iii. any other property in the custody or care of the person.

Public Works Protection Act (1939)
Definitions1. In this Act,
“public work” includes,
(b) any provincial and any municipal public building.

Powers of guard or peace officer3. A guard or peace officer,
(a) may require any person entering or attempting to enter any public work or any approach thereto to furnish his or her name and address, to identify himself or herself and to state the purpose for which he or she desires to enter the public work, in writing or otherwise;
(b) may search, without warrant, any person entering or attempting to enter a public work or a vehicle in the charge or under the control of any such person or which has recently been or is suspected of having been in the charge or under the control of any such person or in which any such person is a passenger; and
(c) may refuse permission to any person to enter a public work.


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