Proposed Ontario Courthouse Security Legislation Questioned

The Toronto Lawyers Association (TLA) has raised an alarm over proposed Bill 34, Security for Courts, Electricity Generating Facilities and Nuclear Facilities Act, 2012 in Ontario. If passed as it is currently worded, Bill 34 will allow courthouse security to search all persons entering the court, including lawyers. The TLA maintains this is a potential exposure to lawyer-client privileged communications:

Under the proposed legislation, sections of the Police Services Act will allow for a search without warrant any person, vehicle or property in a person’s custody seeking access to a public courthouse. These search powers would include a person’s lawyer, and could expose privileged communications between a lawyer and their client when applied. It is the view of TLA that it is neither reasonable nor necessary to include lawyers in the search powers contemplated by this legislation as it relates to courthouses.

The TLA and the County and District Law Presidents’ Association (CDLPA) have requested an amendment to the legislation that would exempt lawyers from the search powers of the Act upon presentation of valid TLA or Law Society of Upper Canada credentials. They are also encouraging the rest of us in Ontario to put the pressure on by contacting our MPPs and asking that the bill be amended to exempt lawyers.

Bill 34 is currently being considered by the Standing Committee on Justice Policy. It is a result of the Ombudsman Report: Investigation into the Ministry of Community Safety and Correctional Services’ Conduct in Relation to Ontario Regulation 233/10 under the Public Works Protection Act: “Caught in the Act” [pdf] released in December 2010 by André Marin, Ombudsman of Ontario, following the use/misuse of the Public Works Protection Act (PWPA) in Toronto resulting in the purported breach of civil rights during the G20 Summit in June 2010.

Subsequent to the Ombudsman’s report, The Honourable R. Roy McMurtry put together the Report of the Review of the Public Works Protection Act [pdf] (April 2011) which made three recommendations:

  • The PWPA should be repealed, after consultation with stakeholders to identify specific security needs.
  • New court security legislation should be passed.
  • New power generation station security legislation should be passed.

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Full disclosure: I am doing consulting work with the Toronto Lawyers Association, although not with respect to this legislation.

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Comments

  1. Does it depend on what is being searched for? I have never heard of anyone, even the most intrusive and offensive U.S. airport security people, reading documents of people they searched, or looking at their cell phones beyond to see if it is a phone, or using their computers. I suspect that the bill is not talking about a search-warrant-type search but a weapons-type search.

    So: burden of proof on the lawyers here.

  2. The Ontario Bar Association (OBA) and the The Criminal Lawyers’ Association have also expressed some misgivings about this Bill, which was covered in a recent issue of The Lawyers Weekly.

  3. We went through this fight in Calgary a few years back when they opened the new courthouse. The result was a separate line for lawyers (with ID) who aren’t searched.

    But on a related note, I was troubled by some comments I read from the Ontario government along the lines of “We aren’t going to forcibly search anyone, if you don’t want to be searched don’t come to the courthouse”. I get that courthouses need to be secure but I’m also troubled by the idea of our courthouses becoming less open to the public and much more intimidating to enter.

    I’m also troubled by requiring people entering the courthouse to produce identification. How big a barrier is that going to be – particularly for family members, witnesses, etc. who might be worried about outstanding warrants or immigration issues?

  4. Some great additional points. Thanks, all.