The Maximum Security Courthouse

One of the best things about being licensed in multiple jurisdictions is the opportunity to observe emerging trends. The opportunity to see trends obviously applies to the development of case law and judicial attitudes.

One less obvious opportunity is to see changes in courthouse security. What I’ve seen is more than a little disheartening.When I started out, back in 1996-97, courthouse security – at least in my then home jurisdiction of Alberta, Canada – amounted to a once-over by the unarmed security guard sitting at the information desk. Once in awhile, during high-profile criminal cases, security might set up metal detectors at the entrance to the courtroom when the trial was underway.

Even in the immediate aftermath of 9/11, very little changed.

I traveled to Boston, MA (pop. 4,522,858) in 2005, and was taken aback when I was asked to walk through a metal detector complete with a manual wand scan, while my coat and bag were X-rayed at the entrance to the Suffolk County Courthouse. At the time, I chalked it up to post 9/11 skittishness, to be expected in a much larger city than my hometown of Edmonton, Alberta.

Even then, there was something that didn’t sit right; being asked to submit to a search as a pre-condition to entering a public building – a public building where the proceedings are built around being open to the public.

Since then, I’ve watched security intensify – I refuse to apply the word “increase” to what amounts to security theatre.

Back in Edmonton, the metal detectors moved downstairs, to the courthouse entrance. The security staff searched your bags while you walked through a metal detector. Of course, if you could produce a card to prove you were a lawyer, you could be waived through unmolested. Your clients, however, would not be accorded the same courtesy.

It was refreshing when I moved to Halifax, Nova Scotia, in 2007, to simply walk into court to use the library or argue in court as I pleased. More importantly, it was refreshing to watch the public enter the courthouse unmolested – so that they could see for themselves that our courts were meting out justice in a fair and transparent way. That, in the end, is the whole point behind public trials: that justice not only be done, but that it is seen to be done.

Even Halifax, however, has failed to resist the temptations of security theatre. Over the last year or so, at unpredictable times, and for unpredictable durations, the metal detectors appear, manned by security staff at the ready to inspect your belongings. Again, if you can prove you’re a member of the Bar, then you’ll be waived through – only your clients have to suffer the indignity of the presumption that they are up to no good.

At least I could find comfort in the relative politeness of the security staff.

Which is why I was galled when I appeared a few days ago, at the courthouse in Moncton, New Brunswick (pop. 126,424). There, I was met with a team of 8 to 10 security staff, all sporting bullet-proof vests. This new building also boasts metal detectors at the front entrance, and state of the art X-ray scanners befitting an airport.

Lawyers and the public alike must tell security staff why they are there.

“You a lawyer?”

Yes.

“Got a law society card, or a CBA card with picture ID, so we can see it?”

Yes.

Waived through. Some traditions, it seems, remain.

The difficulty I have with this is two-fold: firstly, as I stated earlier, a courthouse is meant to be a public building. Its public nature is more than the simple fact of being government-owned: it is a place where the public must be able to attend, unmolested and unintimidated, to see for themselves that their courts treat everyone before them transparently and fairly. Justice, not just done, but seen to be done.

The second issue that I take is with the surly behavior of the security staff, aided, no doubt, by the flack jackets and TSA style scanners. If some bureaucrat is able to make a bona fide case for airport quality heightened security at a courthouse in Moncton – or Edmonton, or Calgary, Toronto or Boston, for that matter – then security staff ought to receive explicit and firm instructions that they are to remain scrupulously polite to each and every person they encounter at the door.

They must be reminded that as necessary as someone thinks their presence is, it is inconsistent with the values of a free society – and that their necessity will be re-evaluated often.