ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 646/13
DATE: 20140423
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEVON BROWNE
Gabriel Ho, for the Crown
Pharrah Bacchus, for the accused
HEARD: April 22, 2014
K.L. Campbell J.:
Ruling on Application to Permit Accused
to be Seated at Counsel Table
A. Overview
[1] The accused, Devon Browne, currently faces an indictment that charges him with five offences, all flowing from his alleged possession of a loaded prohibited handgun in Toronto on or about December 31, 2012. He has elected to be tried by a judge and jury, but the jury has not yet been selected. Mr. Browne has been ordered to be detained in custody pending his trial.
[2] An application has been brought on behalf of Mr. Browne to permit him to be seated at counsel table during the course of the trial proceedings. The Crown is opposed to the application, and argues that Mr. Browne should remain in the prisoner’s dock during the trial.
[3] The evidence that has been led on this application by the parties consists of the testimony of the accused, Mr. Browne, and Mr. Shaun White, the supervisor of court security for the Superior Court courthouse in Toronto.
B. The Applicable Legal Principles
[4] There are many conflicting authorities on whether, and in what circumstances, an accused should be permitted to sit at counsel table instead of in the prisoner’s dock. This is explained, perhaps, by the fact that such decisions are said to be within the broad discretion of the trial judge, and should be determined based upon balancing the fair trial and court security interests in the factual circumstances of each individual case. See: R. v. Lalande (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont.C.A.), at para. 19; R. v. Levogianis, 1993 47 (SCC), [1993] 4 S.C.R. 475, at p. 493.
[5] Some authorities lay emphasis on the assumption that isolating the accused in the prisoner’s dock can potentially undermine the presumption of innocence and thus negatively impact upon the fair trial interests of the accused. See, for example: R. v. S.(S.), [1997] O.J. No. 250 (S.C.J.), at paras. 17-21; R. v. Kinkead, [1999] O.J. No. 1742 (S.C.J.); R. v. MacDonald, [1999] O.J. No. 5445 (S.C.J.); R. v. Smith, [2007] O.J. No. 2579 (S.C.J.); R. v. Ramanathan, [2009] O.J. No. 6233 (S.C.J.). These authorities generally act upon the recommendation of the Morin Commission that, absent the existence of a proven security risk, persons charged with criminal offences should be entitled, at their option, to be seated with their counsel, rather than in the prisoner’s dock. See: F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, at pp. 1167-1168.
[6] Other authorities focus upon the traditional location of the accused in the prisoner’s dock, and doubt the validity of the premise that any potential fair trial concerns cannot be overcome by unequivocal instructions by the trial judge. These authorities rely upon the traditional functional reasons that accused persons are kept seated in the prisoner’s dock during their trial, and confidently believe that the jury will easily understand that everyone has their own “place” in the courtroom, and the accused is no different than the jury, the lawyers, the court officials, the witnesses, and the judge in this regard. See, for example: R. v. Heyden, [1998] O.J. No. 6253 (S.C.J.); R. v. B.(C.), [1998] O.J. No. 5519 (S.C.J.); R. v. R.(W.J.) (1999), 1999 15065 (ON SC), 30 C.R. (5th) 342 (Ont.S.C.J.); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.); R. v. Spagnoli and Shore, 2011 ONSC 4656.
[7] The few authorities that have considered the question hold that the mere presence of the accused in the prisoner’s dock, without more, does not violate any constitutional rights protected by the Charter of Rights, and jury instructions can be provided to ensure that the jury fully understands the presumption of innocence and the burden of proof upon the Crown, and that no inference can properly be drawn from the simple presence of the accused in the prisoner’s dock. See: R. v. Power (1992), 1992 7110 (NL CA), 101 Nfld. & P.E.I.R. 265 (Nfld.C.A.), at p. 268; R. v. Heyden, at paras. 4-8. In this regard, the jury can be reminded that everyone in the courtroom, including the judge, jury, witnesses, counsel, court officials, and accused, all have a different role in the proceedings, and typically occupy a clearly designated place in the courtroom.
[8] Accordingly, as the customary position in the courtroom for the accused is the prisoner’s dock, the accused bears the onus of establishing that, in the circumstances of the case, he or she should be permitted to sit at counsel table. See: R. v. Davis, 2011 ONSC 5567, at para. 11; R. v. C.(G.), 2013 ONSC 2904, at para. 9.
[9] In R. v. Gervais (2001), 2001 28428 (ON SC), 49 C.R. (5th) 177 (Ont.S.C.J.) Campbell J. articulated the traditional perspective on this issue, suggesting that, even in the absence of any specific security concerns, the general rule, based upon functional considerations, should be that the accused should remain in the prisoner’s dock. Campbell J. dealt with this issue in the context of two accused charged with second degree murder. One of the accused, Gervais, was on judicial interim release, while the other accused, Bailey, remained in custody. While Gervais presented no “particular security concern,” Campbell J. nevertheless concluded that his place was “in the regular dock reserved for that purpose.” In reaching this conclusion, Campbell J. outlined, at paras. 12-20, some of the reasons justifying this traditional approach to the position of the accused in the courtroom:
Everyone in the courtroom including the judge, the accused, the counsel, the jury and the court officials, have a different role in the proceedings and a clearly designated place in the courtroom.
Some of the historic reasons for the dock had to do with the need to distinguish the accused from the others present in court and provide him or her with a clearly assigned place in the same way as the jurors, the judge, the witness, the clerk, and others involved in the trial. Although some cases refer to security as a potentially important factor there is no evidence in this case of any security problem involving Gervais, who is out of custody or Bailey, who is in custody.
In some courtrooms the courtroom and dock configuration and size may make it more suitable for the accused to remain out of the dock. That is not the case here in Sudbury and experience with the large jury courtroom shows that the dock is a perfectly suitable place for the accused.
The modern functional reasons for the dock have to do with the focus of the trial. If the accused remain in the dock they remain at centre stage. The focus of the trial remains on them. The trier of fact is able to observe their responses to the evidence as it unfolds. The jury and indeed the judge and counsel are on balance less likely to be distracted by communications between accused and counsel.
All accused should be treated as equally as possible in the courtroom, whether they are in custody or on judicial interim release. It defeats that principle if an accused in custody remains in the dock when an accused on judicial interim release sits elsewhere.
If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place, including the judge and the jurors and the accused, that the accused like the judge and the jurors sits in the place traditionally reserved for him, and they cannot take that against the accused who are presumed innocent.
Some feel the dock is an anachronism that should be abolished. Some feel that a “stigma” attaches to the accused who sits in the dock. Others point out that this view is supported by nothing more than feeling or conjecture, unsupported by any evidence. Some say that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness box. There are views to the contrary and a number of orders have been made in individual cases to permit defendants to sit outside the dock. Despite these views there is a strong current of judicial opinion that the dock is ordinarily the best place for the accused.
Practical difficulties will arise when judges are subjected to constant motions to decide the position of the accused in individual cases. Further problems will arise if trial judges are drawn into disputes about the security requirements of individual accused involving evidence about the accused or even from the accused, including sensitive prejudicial information which would not ordinarily come to the attention of the trial judge.
Although there is no evidence of any particular security concern in this case, there is no evidence that this is one of those unusual cases where either defendant should sit at counsel table or elsewhere in the court.
C. Analysis
[10] Applying these principles in the circumstances of the present case, and balancing the fair trial and court security interests requires that the accused remain in the prisoner’s dock during the course of the trial. I have reached that conclusion not only because I prefer one line of these authorities over the other, but also because there are a number of legitimate security concerns present in this case which tip the balance in favour of the accused remaining in the prisoner’s dock.
[11] I base this conclusion upon the evidence that was called on the voir dire that was conducted with respect to this issue. That evidence reveals, more particularly, the following:
(1) Criminal Record of the Accused: The accused has a criminal record that includes: (1) a conviction for “assault with intent to resist arrest” for which the accused was sentenced in August of 2008 to 30 days in jail; (2) a conviction for “fail to comply with a recognizance” for which he was also sentenced in August of 2008; and (3) a conviction for a “drug-related offence” for which he was sentenced to 30 days imprisonment in 2007. The accused admitted the contents of this criminal record during the course of his testimony. The accused conceded that this record showed that, in the past, he had disobeyed court orders and had been violent toward police officers.
(2) Earlier Attempt to Escape From Custody: Mr. White testified that he was in receipt of documentation revealing that, on March 22, 2007, the accused “attempted to escape from custody.” There were no more specific details provided as to the nature of this attempted escape. Mr. White testified that there was little doubt as to the accuracy of this documentation, as it otherwise accurately outlined the identification details and personal profile of the accused, his current court charges and scheduled appearances. The accused did not deny this incident, but testified that he had no recollection of it, did not recall being in custody at that time, and believed that this information was simply a mistake. Mr. Browne acknowledged, however, that there was a “possibility” that he had simply forgotten about the incident. But he maintained that, notwithstanding his criminal record, an attempt to escape from custody was it “not in his nature.” I accept, as a matter of fact, that the accused attempted to escape from custody on March 22, 2007.
(3) Security Concerns Coincident with Counsel Table Seating: In his evidence, Officer White outlined the various security concerns that would be coincident with an order permitting the detained-in-custody accused to sit at counsel table during trial proceedings. Officer White testified that, generally speaking, such an order makes it very difficult to adequately secure the courtroom, the people inside the courtroom, and the accused. Officer White testified that, with respect to Mr. Browne in particular, he had specific concerns about the past failure of the accused to follow a court order, his previous combative or assaultive interaction with a police officer, and his attempt to escape custody. Mr. White testified that, if the accused was permitted to sit at counsel table, instead of the safe, sterile and controlled confines of the prisoner’s box: (a) another court security officer would have to be deployed to the courtroom to try to best ensure the safety and security of the accused and the public during the trial – which would significantly tax the limited resource compliment of security officers provided for the courthouse; and (b) the accused would have to be subjected to frequent searches of his person, coming and going from the courtroom, in order to try to ensure that potential contraband is not being transported by the accused.
[12] I also base this conclusion, in part, upon the physical layout of the courtroom in which this case is to be tried. The courtroom is a relatively small one. The prisoner’s box is in the center of the courtroom and is slightly elevated. If the accused remains in the prisoner’s box, the jury will be able to easily see him throughout the course of the trial proceedings. The single court security officer that would be assigned to the security of the accused will also be able to easily observe and monitor him, as the officer will have an unobstructed view of his entire body. In this particular courtroom there is only one, long table for counsel, and no room for another. If the accused were permitted to sit at counsel table, he would have to sit at the end of that table, furthest away from the jury. Such positioning would make it more difficult for the jury to observe the accused during the proceedings, given the presence of intervening lecturns and other courtroom furnishings. If moved to counsel table, the accused would certainly no longer be at “centre stage.” This positioning would also make it more difficult for even two security officers to monitor the activities of the accused, as the end of the table is solid wood, and would permit the accused, if he was so inclined, to keep his hands out of sight under the table. These observations as to the physical surroundings of the courtroom are not merely my own, but were reflected in the testimony of Officer White, in his description of some of the potential security problems that would be presented by an order permitting the accused to sit at counsel table in this case. These practical issues are legitimate concerns and also militate against permitting the accused to sit at counsel table. See: R. v. Minoose, 2010 ONSC 6129, [2010] O.J. No. 4830, at paras. 37-45; R. v. Davis, at para. 22.
[13] I have no doubt that, from his location in the prisoner’s dock, the accused will be able to fully participate in the trial in a meaningful fashion, and speak regularly – and certainly as frequently as necessary – to his counsel. Again, the courtroom is a small one. From the prisoner’s box, the accused will be no further away from defence counsel than he would be if he were seated at the end of counsel table. Defence counsel and the accused should have no difficulty discretely communicating as necessary throughout the course of the trial proceedings.
[14] I am also satisfied that, by instructing the jury fully and carefully at the outset of the trial about the importance of the presumption of innocence and the burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt, and explaining to the jury that they must draw no adverse inference from the physical location of the accused in the courtroom during the trial, the accused will not be in any way prejudiced by remaining in the prisoner’s dock. Our system of criminal justice is premised upon the entrenched and well-justified belief that jurors can, and do, follow the legal instructions of judges as is their duty. See: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-696; R. v. Vermette, 1988 87 (SCC), [1988] 1 S.C.R. 985, at pp. 992-994.
[15] Relatively recently, in dealing with this same issue in R. v. C.(G.), B.P. O’Marra J. concluded, at para. 16, after considering the “divergent judicial views” on the issue, that the accused should remain seated in the prisoner’s dock, explaining:
Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept that the position of the accused in the dock during the trial undermines these fundamental principles in any way. It is critically important that we trust in the integrity and ability of jurors to follow these instructions as well as more complex ones …
D. Conclusion
[16] In the result, the application by the accused to be permitted to sit at counsel table is dismissed. The accused shall remain in the prisoner’s dock during the course of the trial proceedings.
[17] I will seek the assistance of counsel in crafting the appropriate instruction to the jury to best ensure that the accused receives a fair trial and is not in any way prejudiced by his physical location in the prisoner’s dock during the trial proceedings.
Kenneth L. Campbell J.
Released: April 23, 2014
COURT FILE NO.: 646/13
DATE: 20140423
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
DEVON BROWNE
RULING
On Application to Permit Accused
to be Seated at Counsel Table
K.L. Campbell J.
Released: April 23, 2014