COURT FILE AND PARTIES

COURT FILE NO.: 10856
DATE: 2012-02-14
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Thomas Christopher Stephen Rafferty

BEFORE: Heeney J.

COUNSEL:
Stephanie Venne, Counsel, for the Crown
Laura Giordano, Counsel, for the Accused

HEARD: February 3, 2012

application D-3: accused to sit at counsel table

ENDORSEMENT

[ 1 ] In this application, the accused seeks leave of the court to sit at the counsel table beside or behind his counsel, rather in the prisoner’s dock, for the duration of his trial. He has been seated, to this point in time, in the prisoner’s dock.

[ 2 ] The accused has been in custody since his arrest on May 19, 2009. He is facing trial on charges of kidnapping, sexually assaulting and committing first degree murder on a young child, Victoria Stafford.

[ 3 ] The law which applies to this issue is set out by Borins J.A. in R. v. Lalande , 1999 2388 (ON CA) , [1999] O.J. No. 3267 (C.A.) at para. 19 :

Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security: R. v. Levogiannis (1993), 1993 47 (SCC) , 85 C.C.C. (3d) 327 (S.C.C.) . I am aware that Commissioner Kaufman has made recommendations concerning where an accused person may sit during his or her trial: Report of the commission on Proceedings Involving Guy Paul Morin , 1998, vol. 2, 1167-68. Counsel for the respondent informed the court that in light of Commissioner Kaufman’s recommendations, the Ministry of the Attorney General has adopted the policy with respect to accused persons who are not in custody and who present no security concerns, that while the ultimate decision rests with the presiding judge, the Crown should normally consent to the accused person being permitted to sit at the counsel table should he or she request to do so.

[ 4 ] The accused is in custody in the present case, and the Crown opposes the request that he sit at the counsel table.

[ 5 ] With respect to courtroom security, the Crown has filed an affidavit from Sgt. Galbraith, who is the Officer in Charge of the Court Prisoner Security Unit and Courthouse Security at the London courthouse, where these proceedings are taking place. He identified a history of known threats against the accused, whereby an onlooker verbally accosted the accused on May 20, 2009 as he was leaving the Woodstock courthouse, yelling “You fucking sick fuck”. A video of that encounter was posted on U-Tube, and a DVD of that film was filed as Ex. #1. It shows a physical element to the confrontation as well as a verbal one, in that the police have their arms raised, apparently to keep the male person back, while loudly instructing him to remain at least five feet away.

[ 6 ] Even absent this history, Sgt. Galbraith views this case as one that requires a very high level of security. It will be a high-profile and emotionally charged trial. The charges, in his view, relate to a “horrific crime committed on a child”, where friends and family of the child might be motivated to seek revenge.

[ 7 ] It is true that no breaches of security have occurred during the last four weeks, during which we dealt with pre-trial motions. However, those motions have involved mostly evidence from police officers and legal argument. The trial will involve graphic evidence that could prove very difficult for those in the gallery to deal with, particularly those with an emotional connection to the child. I accept Sgt. Galbraith’s opinion that this case merits a high degree of security, which can best be provided for by having the accused remain in the prisoner’s dock.

[ 8 ] The courtroom in which this trial is taking place has been specially designed as a high security courtroom, and that is one of the reasons why I earlier ordered that this trial take place in this courtroom. One of the features of the room is a prisoner’s dock on the side of the room, rather than in the centre of the room adjacent to the public gallery. This provides more distance for a person who poses a threat to cover before reaching the accused, allowing much more response time for security personnel to take appropriate action. Furthermore, in the event of an incident, there is an exit door directly behind where the accused is seated that leads to a secure corridor, which will facilitate the quick and secure removal of the accused.

[ 9 ] If the accused were to be seated at the counsel table, Sgt. Galbraith indicated that enhanced police presence in the courtroom would be required, including two police officers seated directly behind the accused. In my view, this would create more potential for prejudice in the minds of the jury than having the accused sit in the prisoner’s dock, which is where the jury would presumably expect to find him. Furthermore, it could impair the ability for private communication between the accused and his counsel. As it now stands, counsel needs only to rise and move a few feet to the right to speak with the accused over the low glass front of the dock. Two officers who are seated at either end of the dock are far enough away to permit a private conversation.

[ 10 ] Having two officers seated behind the accused would also create the awkward situation where they would be positioned to see the computer screens of defence counsel.

[ 11 ] I see no impact on the fair trial rights of the accused in having him sit in the prisoner’s dock. I intend to instruct the jury that they are to draw no adverse inferences against the accused by reason of the fact that he is seated in the dock, and that he is there because that has been established to be the appropriate place for him to sit in the trial, through centuries of tradition in our courts. It need hardly be said that we have a high degree of confidence in the ability of juries to follow the instructions given to them.

[ 12 ] Ms. Giordano, for the accused, submitted that the accused will be unable to clearly see the jury, and vice versa, unless he is seated at the counsel table. In fact, the reverse is true. Seated in the dock, the accused is directly across the room from the jury, in a face to face position. There is a clear space between the prisoner’s dock and the adjacent counsel table, allowing for a relatively unobstructed view. The jury box is raised, allowing the jury to see over the heads of any seated counsel in between. While there will be some obstruction when counsel is at the podium, it will only affect a few jurors who happen to be directly in line, who would still be able to see the accused with a slight shift in their position or a turn of their head.

[ 13 ] By contrast, if the accused is seated at the table, he will be obstructed from the jury’s view by the counsel seated directly beside him. The obstruction presented by counsel standing at the podium will be worse than before, due to the closer proximity of the accused to the podium. Furthermore, the face of the accused will be turned sideways to the jury, rather than the face to face view permitted by having him in the prisoner’s dock.

[ 14 ] Balancing the need for enhanced security that this case demands, as against the negligible impact on the fair trial rights of the accused, I am satisfied that the appropriate place for the accused to sit is in the prisoner’s dock. He has not be shackled or handcuffed to date, and that will continue to be the case. The application of the accused is, accordingly, dismissed.

[ 15 ] Following argument, submissions were heard from counsel for the accused and the Crown, as well as from Mr. MacKinnon on behalf of the Media Coalition, as to whether details of this application may be published. There is a general ban on publishing details of pre-trial motions pursuant to s. 648 of the Criminal Code , as interpreted in light of s. 645(5) . However, because this motion is not one which would normally be done after the jury is empanelled and in their absence, that general prohibition does not apply.

[ 16 ] Having said that, though, the same considerations that justify a publication ban on pre-trial motions are relevant here. The object is to avoid the potential for contaminating the jury with the publication of information that is heard in court in their absence, information which they normally would not and should not be exposed to. Information concerning this motion falls into that category.

[ 17 ] While I have found that little or no prejudice will flow from having the accused sit in the prisoner’s dock, prejudice could well flow to the accused if the jury knew that the accused brought this application and it was denied. There would be an implicit message from the accused that he believes the jury could be influenced by such a comparatively minor matter as the seating position of the accused, and could not be trusted to draw no adverse inferences from this, as instructed by the judge. Publication could also serve to draw attention to an issue which otherwise is not likely to arise in the minds of the jury. I have already observed that the prisoner’s dock is precisely where the jury would expect to find the accused, in a trial such as this.

[ 18 ] The applicable law is referred to as the Dagenais/Mentuck test: Canadian Broadcasting Corporation v. Dagenais , [1994] 3 S.C.R. 878 ; R. v. Mentuck, 2001 SCC 76 () , [2001] 3 S.C.R. 442. The Crown and the defence, who both support a ban on publishing information concerning this motion, must prove, on a convincing evidentiary basis, the following: first, that such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonable alternative measures will not prevent the risk; and second, that the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by the ban.

[ 19 ] There is not much in the way of an evidentiary basis, but that is probably inevitable given the nature of the prejudice in question. It flows from a common sense inference rather than empirical evidence. While the prejudice cannot be said to be great, it is also the case that the deleterious effects of banning publication of this application are negligible.

[ 20 ] The public is, without doubt, very interested in the facts of this case, and are entitled to receive information about it through the media. However, this issue really has nothing to do with the charges before the court, or what transpired when Tori Stafford went missing. Instead, it relates to the purely personal request of the accused as to where he would prefer to sit during his trial. There is no compelling public interest in having such details publically disseminated.

[ 21 ] In assessing prejudice, one way of looking at the issue is to ask what would happen if this issue arose during the trial itself, after the jury was empanelled. Without doubt, the jury would be excluded from the courtroom while the application was considered and decided, precisely because of the potential for prejudice discussed above. Given that, it risks contamination of the jury pool as a whole to widely publish those same details in the press, prior to the selection of the jury. This potential is greatly enhanced due to the fact that the jury is about to be chosen in two weeks time. An article about this application is likely to receive much more attention now than ever before, and is likely to remain fresh in the memories of the jury when the trial begins.

[ 22 ] Having said that, I am not persuaded that the risk to a fair trial is “substantial” so as to justify a total publication ban. I am of the view that the risk of prejudice may be avoided by an alternate measure, in the form of a “judicial press release”(as it has been referred to in other cases). This will serve to communicate the basic facts to the public while avoiding or minimizing any prejudicial slant to the story.

[ 23 ] Accordingly, publication of this motion is restricted to the following information:

A motion was dealt with by the court to determine whether the accused, Michael Rafferty, would sit at the counsel table for his trial, as is sometimes permitted, or would sit in the dock in accordance with traditional practice. Evidence was received from Sgt. Galbraith, who is in charge of security, that the nature and history of this case requires a high level of security, which could best be met if Mr. Rafferty were seated in the dock. The court also observed that the sight lines between the jury and Mr. Rafferty are much better if he is seated in the dock instead of at the counsel table. Accordingly, the court directed that Mr. Rafferty would be seated in the dock for the duration of the trial.

“T. A. Heeney J.”

Mr. Justice T. A. Heeney

Date: February 14, 2012