A new provincial law intended to increase security at courthouses and other facilities gives police overly broad powers and may even be unconstitutional, according to some Ontario lawyers.
The government, however, is continuing to stand by the new law, insisting it doesn’t in fact provide police with any new powers at all.
Alison Mackay, a criminal lawyer based in the Greater Toronto Area, knows the importance of court security from first-hand experience. Mackay was in a courtroom at the courthouse in Brampton, Ont., at the time of a shooting in March 2014 when a man opened fire and wounded a police officer. Other police at the scene then shot the man.
“We heard the gunshot. People ran into our courtroom and we all hit the floor and then, of course, we heard the witnesses who saw some of the things that happened, including . . . the man deceased on the floor,” says Mackay.
“It’s close to home,” she adds.
“We do understand that there has to be some security, they do have to search people coming in the court,” she says.
And yet Ontario’s Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, a piece of legislation proclaimed into law last week, appears to go too far, according to Mackay.
The act’s most troubling feature, according to lawyers, is the fact it gives police the power to search the vehicles of people entering court premises without a warrant.
“That clearly, I think, would not pass constitutional muster,” says Mackay.
“I can’t see how it would. . . . That is very overreaching and if a situation came up where maybe someone’s vehicle was searched and they had marijuana in their vehicle and were charged . . . if a lawyer was willing to take it on, they could make that constitutional challenge.”
Other lawyers express similar concerns. “They’ll get shot down by the Supreme Court on this,” says criminal defence lawyer Roots Gadhia.
But Anthony Moustacalis, president of the Criminal Lawyers’ Association, says the act’s predecessor, the Public Works Protection Act, included a power to search the vehicle of a person entering any public work or building without a warrant. In a sense, then, the new act simply narrows that power, he suggests.
Nevertheless, Moustacalis has his concerns. “Searching vehicles in parking lots without any reason may be overbroad and might violate Charter rights. . . . I would question whether a search of a vehicle of a member of the public who is coming to the courthouse and otherwise identifies themselves and has a valid purpose for being there should be subject to a random search of their vehicle.”
Tyler Smith, a partner at Hicks Adams LLP, says he was “rather shocked” to learn of an act he believes could discourage people from going to court.
“One could certainly imagine the effect that this sort of legislation could have if people are going to be less inclined to come to court if they have to provide their names and cell numbers. But particularly the search of the vehicle if they’re on courthouse property is in my mind ridiculous,” he says.
“What if you’re a person who overstayed your immigration visa?” he asks. “Are those sorts of people going to be less likely to participate in the system by not going to court because police could discover their phone number and who they are and where they are? And that could extend to any number of vulnerable people who would be loath to publicize or provide information to the police about themselves.
“At this point, who knows what use is going to be made of the data that the police are going to collect? That’s a huge question mark. You and I attend a trial for a gang member and we attend together and they ask us what we’re doing here and we say we’re a friend of the accused. Are we going to go into a database as being gang associates? Are we going to be associated on paper now? Here’s another source for police to get more data, and we don’t know what’s going to be done with it.”
Moustacalis says the courts have upheld police powers to search people at courthouses and require them to identify themselves and state why they’re there. He agrees, however, that the question of what sort of record results from that information is a cause for concern.
Brent Ross, spokesman for the Ministry of Community Safety and Correctional Services, says the new act replaces the older legislation with “a more modern, transparent statute.”
Ross says the new law “scopes the old [act] to focus simply on maintaining the existing framework for security at courthouses, nuclear facilities, and large electricity generating facilities, such as existing rules on searches and identification, while ensuring that people’s individual rights, their access to courts, and public safety is protected.
It does not provide any new powers to police or security officers.”
According to Ross, the government doesn’t expect the act will affect the public’s attendance at court or interactions with the court system.
“The bill . . . is not intended for the purpose of intelligence gathering,” he says.
“If, as is currently done, the information is properly obtained and is relevant for another policing purpose, police can use that information to maintain public safety.”