Should The Police Be Arresting Lawyers in Robes In The Courthouse?
We recently came across an interesting statement regarding the arrest of an Ontario Lawyer at the Brampton Court House. The statement reads:
Statement by the County & District Law Presidents’ Association regarding the arrest of a defense counsel at the A. Grenville & William Davis Courthouse on February 13, 2015
The County and District Law Presidents’ Association has been greatly concerned with the reports surrounding the arrest of Laura Liscio. In light of the Peel Police clarification of the circumstances of the arrest in the Peel Courthouse on Friday, February 13th, CDLPA feels compelled to set out its concerns regarding this regrettable incident, as it understands the facts.
First, it is clear that the police officers making the arrest had many more discrete and appropriate options available when confronting Ms. Liscio. One of the reasons that members of the bar are adorned in robes while in court is to promote respect for the administration of justice and symbolize the respect that officers of the court and the court itself deserve. This respect for tradition and the role of the court officers is a fundamental tenet of our justice system. Based upon the nature of the alleged offence and the facts as we know them, the officers over-reacted to the situation by handcuffing Ms. Liscio and ushering her, in public, to a waiting police car at the front door of the court. Once the officers observed Ms. Liscio handing over clothing to her client they could have just as easily informed her discretely that she was under suspicion for passing along illicit contraband and asked her to accompany them to a police station for further questioning. Ms. Liscio was not a flight risk and, because she was already past courthouse security, there was no threat that she was carrying a weapon.
Second, CDLPA is concerned that the practices of police in courthouses and Ministry of Community Safety & Correctional Services staff across Ontario who refuse to facilitate handing over clothing to incarcerated individuals, who remain innocent until proven guilty, as they move back and forth between jail and the courts puts the onus to do this onto the defence counsel. This activity, which many lawyers already refuse to do, is putting members of the bar at risk while they try to carry out their role of assisting and advising their clients. It is easy to understand how a lawyer can be put into a situation where they unknowingly or unwittingly pass something along, and we think the time is ripe for policies to be reviewed and appropriate directions provided.
Our final concern is that this case may become an excuse to clamp down on lawyers who are entering the courthouse and subject them to searches. CDLPA and other legal associations representing the practising bar in Ontario have long been concerned with any move that would require search of a lawyer as they enter the courthouse. Protection of confidential client information and the fundamental nature of solicitor-client privilege is all compromised when courthouse security is given permission to search a lawyer as they enter a courthouse. Recent amendments to law put forward under Bill 35 (An Act to repeal 00285034-1 the Public Works Protection Act, amend the Police Services Act with respect to court security and enact the Security for Electricity Generating Facilities and Nuclear Facilities Act, 2014) entrench this principle of protection of privilege into law, and we are eager to see it protected in practice as well.
Not all of the facts of this particular case are known, but from what is known so far, CDLPA has strong concerns that this case is indicative of a mindset that is seeping into Ontario’s justice system which does not respect the role of the practising bar in the justice system. If Ms. Liscio is guilty of knowingly trafficking in drugs, then the criminal justice system, and likely the Law Society of Upper Canada will impose penalties. Our concern relates to the overall respect for those who work within the justice system and CDLPA hopes that this case remains an isolated instance.
The County & District Law Presidents’ Association
So what do you think? Should the police be arresting lawyers at the courthouse?