Law Times

PAGE 2 NEWS Court security legislation Lawyer raises prospect of constitutional challenge of bill 34 A BY KENDYL SEBESTA Law Times kill a flea," according to a prominent Ottawa defence lawyer. "It seems to be quite illegitimate, Michael Edelson, a partner at Edelson Clif- ford D' bill that would enable court se- curity staff to search lawyers and their vehicles without a warrant is like "using a sledgehammer to " says recent history have you heard of a lawyer smuggling something potentially danger- ous into the courtroom? We are charged with protecting the courts, not harming them. In Ottawa, there is hardly any secu- rity and we've never had a problem. It really seems to be a ridiculous piece of legislation." Ontario Community Safety and Cor- Angelo Barristers LLP. "When in electricity-generating facilities. But many Ontario lawyers say it' that the bill provides for the same stan- dards for people entering nuclear facilities and courtrooms. They worry it could allow for violations of solicitor-client privilege through its expansive search powers. "It seems a bit strange that they would facilities and courthouses s odd lump nuclear together and, beyond that, by passing the legislation, it might be argued that solicitor- client privilege could be violated, ert Zochodne, past chairman of the County & District Law Presidents' Association. Zochodne says the bill could allow court security staff to search a lawyer's docu- " says Rob- for more discussion." This isn't the first time the issue of war- rantless searches has surfaced in Ontario's courthouses. " gional police began searching out-of-town lawyers and requiring them to show identi- fication," says Zochodne. "The parties eventually settled and now At the new courthouse in Durham, re- affairs for the Ontario Bar Association, says lawyers and the public shouldn't have to sacrifice their individual rights entirely. "We hope the open-court principle will be maintained so that the justice system re- mains in the public eye, lawyers are allowed to show their law soci- ety card for identification purposes. So this is, understandably, a very important issue for us." According to Zochodne, regional po- rectional Services Minister Madeleine Meilleur introduced bill 34, the security for courts, electricity generating facilities, and nuclear facilities act, in February. Under amended Police Services Act would replace the Public Works Protection Act. It dates back to efforts to protect the province' the proposed legislation, an frastructure from sabotage during the Sec- ond World War. The new act would enable court security staff to require lawyers and members of the public to show identifica- tion before entering a courthouse, search a person or property without a warrant, and arrest anyone who refuses to provide iden- tification or submit to a search or is deemed to be a security risk. The bill also sets out the same restric- tions for anyone attempting to enter s in- ments, notice a particular client name or details of a case, and then potentially reveal those details to other counsel or parties. "This could become particularly trou- blesome for criminal defence counsel," says Zochodne. "The people who are processing them are essentially the same people they are defending themselves against and that could cause problems if sensitive informa- tion in a criminal case is seen by them." Currently, lawyers must show their cess to continue. "The current practice is working. Law- d like that pro- the need for security measures and feel the justice committee has been receptive to our concerns." According to Sterns, those concerns in- clude the bill's requirements that members "With that being said, we understand " says Sterns. lice stopped searching out-of-town law- yers following an injunction and a settle- ment. Still, Meilleur has said the Public Works Protection Act is outdated and points to the G20 Summit in 2010 as a prime example of why the changes are necessary. In addition, she maintains the proposed bill won't sim- ply become a repeat of the current legisla- tion under a different name. Other proponents point to the need to ensure the province's security. Law Society of Upper Canada identifica- tion badges before entering a courthouse in Ontario and aren't subject to regular searches. Zochodne says he' yers are not security risks. In fact, we view solicitor-client privilege as sacrosanct and view courthouses as places where those principles should be respected. I mean, don't get me wrong, we do take a positive view of security, but there might be a need that the collective needs for security are balanced with the individual rights and freedoms we seek to uphold, "In a modern society, it is paramount Kaustinen, executive director of the On- tario Association of Police Services Boards, during legislative debate on the bill earlier this month. "We think bill 34 is very important be- " said Fred cause it seeks to find that balance between collective security and individual rights and freedoms. But David Sterns, chairman of public " A DAILY BLOGOF CANADIAN LEGAL NEWS WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS of the public show identification when entering a courthouse and provisions that could make lawyers subject to searches of their court files without measures in place to protect solicitor-client privilege. "The general public, in most cases, shouldn't have to show identification. It simply acts as a deterrent for the public. In the same way, we're concerned that lawyers' privileged files will become the subject of searches without measures in place to pre- vent a breach." Sterns notes he feels the current system is working. "We feel the current system of showing law society identification is effec- tive. We want our courts to be safe and se- cure, but it is our view that more measures should be in place to protect against possi- ble abuses, and I feel the legislature has been responsive to that." Nevertheless, the bill will likely face a rocky road to passage, says Edelson. "If I know lawyers — and I do — they probably won't let this slip by. "I' s necessary." they'll launch a constitutional challenge if they feel it' d think there is a great possibility LT April 30, 2012 • lAw Times POWERED BY CANADIAN LAWYER & LAW TIMES LegalFeeds-1/2-LT-Apr23-12 2.indd 1 www.lawtimesnews.com 12-04-24 12:17 PM

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