Criminal Law

Court security law raises Charter, constitutional issues

Toronto criminal lawyer Roots Gadhia says Ontario’s new law that’s aimed at increasing security at courthouses and other facilities broadly expands police search powers to the point where the legislation isn’t constitutional.

“They’ll get shot down by the Supreme Court on this,” she tells Law Times.

Ontario’s Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, which was recently proclaimed into law, is most concerning for many lawyers because it gives police power to search, without a warrant, the vehicles of people entering the courthouse.

In an interview with AdvocateDaily.com, Gadhia says the legislation expands the grounds on which police can search individuals that they wouldn’t normally have grounds to search or arrest.

“The issue of search by police has always been an issue that the Supreme Court has said is one that needs to be necessitated with reasonable and probable grounds," she says. “I see this law as more of a targeting tool for the police for suspects that they don’t yet have the grounds to arrest.

“It’s an offensive process that police can employ without going through the judicial authorization necessary to get those warrants.”

Gadhia says Canada's law is clear about searching people indiscriminately.

She says police searches of people attending court or of those people bringing people to court will raise some “significant Charter issues” that can, and will be, litigated.

“It’s also going to quagmire the courts with these cases that don’t really need to be in court for any legitimate reason,” she says.

Gadhia also asks whether the courts will have to hire additional staff to go outside the courthouse to begin searching vehicles. She says staffing is already an issue within the court system.

She says the problem is that if Canada allows such laws to become commonplace where people accept them without understanding the true consequence of what they mean, this country will edge closer to a police state.

“It allows for a far more significant police state in almost everything we do with this general acceptance that we are doing it for our safety and protection,” she says. “And it is not necessary. When you consider the thousands of people who go to court in Canada every day, one shooting incident in Brampton isn’t sufficient enough in my opinion to warrant getting a legislative document that authorizes these types of searches.”

She says Canada is increasingly passing laws that more closely resemble those of the United States.

“We don't have the same issues that the U.S. does with guns,” she says. “We don’t have mass shootings with people walking into a post office, a McDonald's or a church and firing guns – that’s not the type of country we live in. Yet we’re employing, to a certain extent, the types of legislation that the U.S. seems to require,” says Gadhia.

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