THE BLOG

Higher Courtroom Security Won't Protect Against Injustice

02/18/2012 11:43 EST | Updated 04/19/2012 05:12 EDT

I happened to catch a few moments of SunNews TV the day that the Kingston, Ontario courthouse was shut down due to a bomb threat during the Shafia trial. The reporter was marveling over the low level of security he had observed at that courthouse up until then. There were no metal detectors at the doors, and no police officers "wanding" him as he entered.

He must have been from Toronto. He didn't realize that the absence of metal detectors is normal out here in small-town eastern Ontario.

But even peaceful little courthouses like Belleville's -- where I began practicing in 1985 -- have been moving gradually to greater security. When I started, the Belleville court staff waited on people over an open counter. Lawyers could slip behind the counter to use the court's phone or photocopier in a pinch. There was never a police officer in the courthouse unless one of the lawyers involved in a contentious case requested one in advance.

Some time around 2002, a wall of glass was installed above the previously open counter, separating court staff from the public. You now had to speak through a metal grill and shove your documents through a narrow slot in the glass. A door with a combo lock now kept lawyers away from the phone and copier.

Then another remarkable change occurred. There was suddenly a police officer on duty in every courtroom whenever a judge had to face members of the public, even for case conferences where only two members of the public were present.

Meanwhile, big cities like Toronto and Calgary have for some years required citizens entering their courthouses to pass through metal detectors and have their bags and briefcases searched. These heightened precautions, I discovered recently, have even spread to Newmarket, Ontario -- a town smaller than Kingston in population, but only half an hour's drive from the big, bad city.

I articled in Toronto in 1976-77, when anyone could freely breeze in and out of the courthouses --including Osgoode Hall, where the Ontario Court of Appeal sits -- without ever seeing a police officer, being searched, or having to show ID.

So what has changed over the past 35 years to make our courthouses so fearful? The homicide rate has actually fallen significantly over that time, although violent crime in general has risen.

But private businesses still don't find it necessary to take this level of precaution. I can walk into a Toronto shopping mall as freely today as I walked into Toronto courthouses 35 years ago. Is there something unique about courthouses that makes them more likely scenes of violence?

My hypothesis is that people were more willing to accept the notion 35 years ago that courthouses were places where justice was done. Today, people are more likely to look at them as places where injustice will be done.

Many more people are compelled to interact with "the law" these days, simply because there is so much more of it. Regulation over citizens' lives has exploded, and much of what happens in court cannot be described as having anything to do with justice.

Take, for example, Mark Tijssen -- the Armed Forces Major in Ottawa who was charged for sharing home-butchered pork with a friend. An investigator from the Ministry of Natural Resources spent five days spying from a neighbour's treehouse to collect the evidence for this ridiculous "crime." The charges were suddenly dropped in December, ending Mr. Tijssen's two-year ordeal. But before 2005, the regulations he was charged under didn't even exist.

A huge percentage of people who end up in court these days are there for matrimonial cases. Since my articling days in 1977, Ontario has repeatedly revamped its family law statutes and regulations. Every re-write has shifted Ontario's matrimonial property regime further away from individualism and deeper into collectivism. As an observer who practiced family law for more than two decades, I think family law has become less just than it once was. It should come as no surprise that many of the people affected by it think so too.

So yes, the courts increasingly have reason to fear the public. But installing security equipment in the courts and leaving unjust laws in place is not the solution.