COURT FILE NO.: 17/13
DATE: 2013-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
Emily Roda, for the Crown
James Miglin, for the Defendant
HEARD: September 16, 2013
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
DEFENCE PRETRIAL APPLICATION – ACCUSED AT
COUNSEL TABLE
CONLAN J.
Introduction
[1] L.W. stands charged before a Judge and Jury in a multi-count Indictment alleging several sexual-related offences involving two alleged young victims.
[2] The Defence has brought an Application to permit Mr. W. to sit beside Defence counsel during the jury selection process, which includes a challenge for cause, and throughout the trial.
[3] Mr. W. is in custody on these charges.
[4] The Crown opposes the Defence Application and asks that Mr. W. sit in the prisoner’s dock with leg shackles.
[5] Alternatively, should I grant the Defence Application, the Crown suggests that four uniformed police officers be required to sit in close proximity to Mr. W..
Analysis
[6] I find both positions of the Crown to be unreasonable.
[7] It is one thing to suggest that Mr. W. be required to sit in the prisoner’s dock (many Justices have agreed with that approach). It is quite another to seek to have Mr. W. shackled in restraints.
[8] The law is clear that restraints on accused persons in the Courtroom are the exception and not the norm. There is no evidence before me to treat this case as an exception.
[9] Further, the suggestion that four uniformed police officers are required to provide security if Mr. W. is permitted to sit at counsel table seems, in my view, to be overkill. That position essentially guts the Defence request as no reasonable accused person would choose to be surrounded by several uniformed police officers over sitting in the prisoner’s dock.
[10] Since the release of The Report of the Commission on Proceedings Involving Guy Paul Morin, authored by the Honourable Fred Kaufman, the Superior Court of Justice in Ontario has formulated two distinct lines of authority.
[11] Both lines of authority agree that a trial justice has the discretion to allow the accused person to sit at counsel table, whether in custody or not.
[12] One line of decisions, exemplified by the analysis of Campbell J. in R. v. Gervais, 2001 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.), starts with the premise that the customary position of the accused in the courtroom is in the prisoner’s dock.
[13] The other line of jurisprudence, an example of which is the decision of Trafford J. in R. v. Smith, [2007] O.J. No. 2579 (S.C.J.), has as its starting point the principle that the accused is entitled to sit at counsel table unless there is a proven security risk.
[14] I generally prefer the approach put forward by Campbell J., on four conditions.
[15] First, there shall be an explicit preliminary instruction to the jury, once selected, along the lines suggested by Justice Campbell at paragraph 17 of the decision in Gervais, supra:
Mr. D. is the accused person before the court, the defendant. Sometimes we use the word defendant, sometimes the word accused. Sometimes we may refer to him by his name, Mr. D.. Don’t take anything against him by the use of the word defendant or accused. As you are now well aware, he is presumed innocent until proven guilty beyond a reasonable doubt, and the fact that someone calls him accused or defendant doesn’t mean anything. Notice that Mr. D. has his own place in the courtroom. That’s the place reserved for the defendant, where defendants regularly sit. He has his place in the courtroom just like you have your place in the jury box and the witnesses have their place in the witness box and I have my place, and counsel have their table and the reporter and the registrar and the deputy have their own place. So don’t take anything one way or another in relation to Mr. D. because he is sitting in the place of the courtroom especially reserved for him.
[16] Second, there shall be a willingness to revisit the matter during the trial if the Defence demonstrates on a balance of probabilities that the right of the accused to make full answer and defence or some other special circumstance requires that the accused be permitted to sit at counsel table.
[17] Third, there shall under no circumstances be an occasion where there is a risk that the jurors may discover that the accused is in custody.
[18] And fourth, to ensure that the accused can adequately communicate with his counsel and actively participate in the trial process, the accused in the prisoner’s dock shall be provided with a writing instrument and some paper.
[19] This approach, in my view, balances the rights of the accused to make full answer and defence and have a fair trial while, at the same time, provides some consistency as to where the accused will be during a criminal trial.
[20] The facts of this particular case are not such that I feel comfortable exercising my discretion to depart from what I generally prefer. Mr. W. has a very lengthy criminal record which spans many years and which includes multiple convictions for violence. He is facing serious charges of an assaultive nature.
[21] Mr. W. strikes me as someone who does not pose any specific security threat and who would likely be polite and calm during the trial, however, I also see nothing in this case which causes me to grant the Application and, thus, deviate from what is my general preference.
Conclusion
[22] The Defence Application is dismissed; Mr. W. shall sit in the prisoner’s dock for the jury selection and throughout the trial.
[23] I Order as follows:
I shall give an explicit preliminary instruction to the jury, once selected, along the lines suggested by Justice Campbell at paragraph 17 of the decision in Gervais, supra.
There shall under no circumstances be an occasion where there is a risk that the jurors may discover that Mr. W. is in custody. In particular, Mr. W. shall not be restrained in any way while in the prisoner’s dock. He shall not be seen by the jury being escorted in or out of the Courtroom.
Mr. W. shall in the prisoner’s dock be provided with a writing instrument and some paper.
[24] My decision may be revisited during the jury selection or trial upon further Application by the Defence.
Conlan J.
Released: September 17, 2013
COURT FILE NO.: 17/13
DATE: 2013-09-17
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.W.
Defendant
REASONS FOR decision
Conlan J.
Released: September 17, 2013