ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13660/14

DATE: 2015/08/24

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHARON BAKSH

Defendant

Jinwon Kim & Michael Malleson, for the Crown

Paul Burstein & Anne Marie Morphew, for the Defendant

HEARD: August 17, 2015

Justice B. Glass

PRE-TRIAL APPLICATION BY DEFENDANT TO BE SEATED AT COUNSEL TABLE DURING TRIAL

[1] Ms. Baksh seeks an order to sit at counsel table with her lawyers during her second-degree murder trial which is to commence February 8, 2016.

[2] Staff Sergeant Rowland is in charge of security in the Durham Courthouse and testified that having an in-custody person seated in the dock is a more manageable way to control persons during their trial from the point of view of safety of persons within the courtroom, and is a limitation of the potential for any violence within the courtroom as well as being a removal of any risk of escape attempts of in-custody persons. The usual location of in-custody persons provides consistency for trials.

[3] Staff Sergeant Rowland suggested that Ms. Baksh remain in the dock with handcuffs disengaged so that she can make notes with a felt-tipped marker during the trial but leg shackles should remain in place. If seated at counsel table, she has access to items such as paper clips, glasses and computers. For example, paper clips might be used by a person to disengage handcuffs.

[4] With respect to Ms. Baksh herself, Staff Sergeant Rowland advised there was not a flight risk.

[5] Ms. Morphew submits that there is not a need for safety concerns with Ms. Baksh because she is a small person who is not considered to be a flight risk. Defence counsel emphasizes that the dock may be the usual and historical location for persons attending court for their trials, but there are more considerations upon which to reflect. For many years, courts have varied in the practice of seating a person on trial in the dock or at counsel table or at a separate table within the courtroom. Defence has a concern that placing an in-custody person in the dock creates a stigma of guilt for jurors and that any caution by a judge to jurors cannot remove that stigma.

[6] Mr. Kim for the Crown does not accept the suggestion that there may be a bias against a person on trial because she is seated in the dock. Although judges in other cases have permitted Defendants to sit out of the dock, such as R. v. Wills [2006] O.J. No. 3662, the decision is still in the trial judge’s discretion.

[7] I might make note that the Wills case was more unique because the Defendant had several boxes of materials to which he was likely to make reference. In Wills, Fuerst J. did not have the Defendant sit outside the dock because it would infringe his right to make full answer and defence.

[8] In R. v. Gervais, 2001 28428 (ON SC), [2001] O.J. No. 4942, Justice Archie Campbell provided a very well-balanced explanation for the usual seating location of a person on trial. There is not a presumption of guilt about a person seated in the dock. Rather, the dock is the customary seating position for one attending court for her trial. His Honour did not find that there was a Charter infringement for a person sitting in the dock. There might be reasonable explanations for a person sitting at a different than usual location in the courtroom, such as a loss of hearing whereby the individual might have difficulty hearing testimony in the dock. Complicated fraud cases may be examples of a person on trial being able to assist counsel by sitting near counsel.

[9] In Ontario Courtroom Procedure, LexisNexis Canada Inc. 2012, Third Edition, at page 353, there is recognition that judges have varied in their determinations of the seating location of people at their trials, but the text also notes that a trial judge should consider advising the jury that the seating arrangement is historical and traditional only and that jurors must not view the seating arrangement as a reflection of the character, disposition, guilt or innocence of another person at trial. The jury system itself might be viewed to be in jeopardy of surviving if jurors are not able to follow a judicial instruction.

[10] With Sharon Baksh, I note that there is not a flight risk nor one of anticipated violence. She is a person of small physical stature. The courthouse in Oshawa is new with modern features for the benefit of all persons involved in the trial process of criminal allegations.

[11] Although one might conclude that the easiest approach to seating a person for her trial would be to follow the traditional location within the courtroom, I might point out that in this case there is not a need to do the same old method. Without there being a flight or safety feature for a small-in-stature person in a courtroom in a modern courthouse that can accommodate her sitting next to her counsel, a judicial officer can feel at ease to allow Ms. Baksh to sit beside her lawyers without handcuffs or leg shackles. I note that during the pre-trial motions, all counsel have worked well together and have advanced the early litigation quickly, efficiently and constructively for the benefit of everyone involved in this second-degree murder trial. This is not a trial in which there is an apprehension of disruption to the trial process by any participant.

[12] I conclude that I shall exercise my discretion in issuing an order that Sharon Baksh be placed at the counsel table with her lawyers during her trial and without handcuffs or leg shackles being worn in the presence of the jurors. While sitting at the counsel table, she will be permitted to use a felt-tipped pen to make notes.

Justice B. Glass

Released: August 24, 2015