R. v. Tavares, 2015 ONSC 2792

COURT FILE NO.: CR-13-0225

DATE: 20150430

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

JOSHUA TAVARES

Applicant

R. Williams, for the Crown

R. Baran, for the Applicant

HEARD: April 21, 2015

RULING RE: POSITION OF DEFENDANT IN COURT

DOUGLAS J.

[1] The defendant applies for an order permitting him to remain seated at counsel table during the trial or, in the alternative, to remain seated directly behind counsel during the trial, rather than in the prisoner’s dock.

[2] The defendant is not in custody. He has been granted bail pending resolution of these proceedings.

[3] The defendant argues that requiring him to sit in the prisoner’s dock undermines the presumption of innocence, interferes with the ability of counsel to communicate with the defendant and carries with it a stigma.

[4] No issues with respect to security are raised on this application.

[5] Before proceeding further I should describe the physical layout of the courtroom in which this trial is to unfold. It is certainly not unusual in its configuration from most Superior Court courtrooms in this province. There a clearly demarcated jury box, a clearly demarcated witness box, counsel table, bench, audience area behind the bar and a prisoner’s dock at the opposite side of the courtroom from the position of the jury box. The jury box and prisoner’s dock are configured such that they directly face one another. The prisoner’s dock however is differentiated from the other specialized seating areas in the courtroom in that it has extremely thick glass encircling three of its four sides such that when a person is seated within the prisoner’s dock, his or her sight lines looking directly forward, are below the top edge of the glass. It should also be noted that the prisoner’s dock is the only seat in the courtroom with a bare wooden bench seat without cushioning. All other seats in the courtroom, including for the audience, have cushioned seating.

[6] The Crown has prepared a very useful factum and brief of authorities. I am not urged by defence counsel to consider any authorities beyond those provided by the Crown in opposition to this application.

[7] As noted in the case authorities provided to me, the Criminal Code is silent on the issue of where an accused person is required to be seated during his or her trial; however, there is a long tradition that an accused person be seated in the dock. In R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942 (Ont. S.C.J.) at para. 8 the court identified the following principles:

(i) The customary position of the accused in the courtroom is in the dock.

(ii) The trial judge has discretion as to the position of the accused in the courtroom in individual cases.

(iii) The presence of the accused in the dock does not violate his or her Charter rights.

[8] This perspective is supported by several authorities (see R. v. Heyden, [1998] O.J. No. 6253 (Ont. S.C.J.), R. v. Vickerson, [2006] O.J. No. 351 (Ont. S.C.J.), R. v. Badhwar, [2009] O.J. No. 1995 (Ont. S.C.J.) and R. v. D.S., 2010 ONSC 7253, [2010] O.J. No. 5749 (Ont. S.C.J.))

[9] The Crown submits that the defendant bears the onus of showing that exceptional circumstances exist that would necessitate him being seated at counsel table. Such exceptions may arise where the presence of the accused in the dock “manifestly precludes him from making full answer and defence.” (see Vickerson, Gervais, Badhwar, R. v. Minoose, 2010 ONSC 6129, [2010] O.J. No. 4830 (Ont. S.C.J.) and D.S.).

[10] The Crown concedes that the requirement to be seated in the dock is not absolute and not every trial judge has followed the “exceptional circumstances” test (see R. v. MacDonald, [1999] O.J. No. 5445 (Ont. S.C.J.), R. v. Smith, [2007] O.J. No. 2579 (Ont. S.C.J.) and R. v. S.S., [1997] O.J. No. 250 (Ont. S.C.J.)).

[11] The defendant argues that the recommendations of the Kaufman Commission ought to be acted upon whereby the accused would be given a choice of sitting at the counsel table or in the dock. It is argued that the Province of Nova Scotia and most of the United States have abolished the prisoner’s dock.

[12] The Crown submits all participants in the courtroom have a defined place in the courtroom and, as Justice Campbell noted in Gervais:

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 centre stage. The focus of the trial remains on them.

[13] I agree that the position of the dock is functional in the sense that it maintains focus of the jurors on the accused; however, there is some impediment in the ability of counsel to consult with his or her client and vice versa. If an accused person wishes to consult with his or her counsel, that person must somehow secure the attention of counsel, whose attention is usually focused toward the bench or the witness rather than toward the accused in the dock; or, alternatively, the accused person might secure the attention of a court services officer who might then communicate to defence counsel the fact that the accused wishes to speak with him or her.

[14] There are two difficulties with this approach. First, an accused person is required, through attention-getting efforts, to secure the attention of their counsel. These efforts may attract the attention of the jury. Depending on the timing of these efforts, some element of evidence may be unduly emphasised. The second problem is that the Crown is not similarly impeded in that typically the Crown is granted leave to have the investigating officer at the counsel table to assist him or her in conducting the prosecution of the case. With the instructing officer at counsel’s side, there is no need to go to special efforts to secure the attention of counsel and to share information or direction discretely.

[15] The Crown argues that there is no basis, for optics alone, to have an accused person sit outside the dock in that there is nothing beyond conjecture to support the proposition that jurors may be improperly influenced to some degree by the placement of the accused in the dock. To believe that a properly instructed jury would not decide a case fairly and impartially according to their oath, simply because of where the accused is seated, would seriously undermine the entire jury system. (see R. v. W.J.R., [1999] O.J. No. 4091 and R. v. Heyden, supra and Contra: R. v. MacDonald, supra, R. v. Smith, supra and R. v. S.S., supra)

[16] I agree that in some circumstances there would be no stigma associated with the presence of an accused person in the dock so long as the jury receives a proper instruction. Those circumstances would include cases where the dock is not significantly dissimilar in its physical configuration from the jury box and witness box for example; however, in this case, the dock is configured quite differently with the glass perimeter described above. It communicates to the objective observer at least the possibility that the occupant of that dock is in custody. Indeed, the dock is typically known as or referred to as the “prisoner’s dock”. The nomenclature itself carries a stigma as not all accused persons are also “prisoners”. It would be preferable to refer to the dock as “the defendant’s box”.

[17] I conclude that the design and structure of this particular defendant’s box carries with it a stigma and that that stigma might reasonably be expected to influence the deliberations of the jury.

[18] The Crown further argues that the presumption of innocence is enhanced by the dock as having a designated location for an accused person, whether in custody or not, ensures that all accused persons are treated similarly. I agree that such should be the case, assuming the defendant’s box is designed and constructed in a way that does not set it significantly apart from the other designated seating areas in the court. That is not the case however in the particular courtroom in which this trial is unfolding for the reasons described above.

[19] The Crown submits that the placement of the dock aids jurors in their ability to observe defendants during the trial. Again, I agree and defence counsel has fairly conceded that were the defendant to be seated at counsel table, the jurors’ view of the defendant would be significantly obscured. He has submitted in the alternative that the defendant ought to be permitted to be seated behind defence counsel in which position the members of the jury would have a clear view of the defendant.

[20] As can be noted from my observations above, my primary concern in this particular case is the design and construction of the defendant’s box in the courtroom in which this trial is unfolding. It is distinctive from the other designated seating areas in the courtroom and carries with it a stigma that may unfairly influence the deliberations of the jury.

[21] I am also focusing on the ability of the defendant to communicate as freely with counsel as does the officer in charge with the Crown in circumstances where security issues exist and the defendant is out of custody.

[22] For these reasons I order that the defendant be entitled to remain seated outside the defendant’s box but behind defence counsel for the duration of these trial proceedings unless and until ordered otherwise.

DOUGLAS J.

Released: April 30, 2015