R. v. Mendonca, 2015 ONSC 272
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
Jill Cameron and David Tice, for the Crown
Susan Pennypacker and Matt Fisico, for Mr. Mendonca
HEARD: January 7, 2015
M. Forestell J.
RULING ON APPLICATION
TO SIT AT COUNSEL TABLE
[1] Brian Mendonca is charged with the first degree murder of Khadeem Antoine.
[2] The allegation against Mr. Mendonca is that he stabbed Mr. Antoine in the early morning hours of March 23, 2012. At the time, Mr. Mendonca was 18 years-old and Mr. Antoine was 19 years-old.
[3] Counsel for Mr. Mendonca brings this application for an order permitting the Applicant sit at counsel table.
[4] The Crown opposes the application.
[5] The Supreme Court of Canada in R. v. Levogiannis[1] held that the seating and location of the accused lies within the sole discretion of the trial judge. Our Court of Appeal in R. v. Lalande,[2] relying on Levogiannis, also held that the seating of the accused in the dock or at counsel table was within the sole discretion of the trial judge.
[6] The Court of Appeal in R. v. McNeill,[3] in addressing the issue of restraints in the courtroom, held that the discretion of the trial judge must be exercised in a manner that balances any safety and security concerns on one hand and the dignity of the accused and the presumption of innocence on the other.
[7] Other factors impacting on the fairness of the trial and the presumption of innocence such as the ability to communicate with counsel, the effect of the position of the accused on solicitor-client privilege and the ability of the accused to follow the proceedings must also be considered in determining how to exercise my discretion with respect to the location of the accused in the courtroom.
[8] In this case, Mr. Mendonca has a significant youth record for offences of violence. In addition and perhaps more significantly, he has an institutional record at the detention centre for three incidents of assault since his incarceration on this charge.
[9] Looking at the circumstances as a whole, I am satisfied that Mr. Mendonca presents a risk to the safety and security of the court which justifies exercising my discretion to require him to remain in the prisoner’s dock.
[10] Mr. Mendonca will be able to easily communicate with his counsel from the prisoner’s dock in the courtroom where this trial will be conducted. His placement in the prisoner’s dock does not adversely impact on the presumption of innocence, nor will it impact on Mr. Mendonca’s ability to participate in his trial.
[11] I will instruct the jury that every participant in the trial, including Mr. Mendonca, has a particular assigned location in the courtroom. I am confident that the jury will not draw any adverse inference from Mr. Mendonca’s placement in the prisoner’s dock.
M. Forestell J.
Released: January 14, 2015
CITATION: R. v. Mendonca, 2015 ONSC 272
COURT FILE NO.: 13-50000124-0000
DATE: 20150114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRIAN MENDONCA
RULING ON APPLICATION TO SIT AT COUNSEL TABLE
M. Forestell J.
Released: January 14, 2015
[1] [1993] 4 .S.C.R. 47 at paragraph 34
[2] 1999 2388 (ON CA), [1999] O.J. No. 3267 at para. 19
[3] 1996 812 (ON CA), [1996] O.J. No. 2488 at para. 6