ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-10000564-0000
DATE: 20151015
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
Mary Humphrey and Anna R. Tenhouse, for the Crown Applicant/Respondent
Jennifer Penman and Genevieve McInnes, for the Respondent/Applicant
HEARD: October 13, 2015
APPLICATION FOR THE ACCUSED TO SIT AT COUNSEL TABLE
a.j. o’marra j.
[1] Everton Biddersingh is charged with first degree murder, aggravated assault and indignity to a dead human body involving his 17 year old daughter, Melonie Biddersingh in 1994. Mr. Biddersingh has applied to be allowed to sit at a counsel table, directly behind his two defence counsel.
[2] Counsel for Mr. Biddersingh submits he should be permitted to sit outside of the prisoner’s dock during the trial, absent any security concerns, because his presumption of innocence would be compromised by the stigma of being isolated in the prisoner’s dock. There is an inherent prejudice which would attach. Further, it would be more convenient to counsel and less distracting to the court to have him at counsel table in order to be able to discuss matters with him if necessary during the conduct of the trial. In the courtroom where the trial is to be conducted, physically it would mean moving him from the prisoner’s dock a few feet to a chair at a counsel table behind the counsel table utilized by his two counsel, there being no room for him to sit with them.
[3] Counsel submits that the accused does not present as a security risk. He is 60 years old. Since his incarceration he has gone blind in one eye. He does not have a criminal record. There have been no institutional misconducts while in detention. He has not presented any security problems for the court security staff. There have been no disturbances during the proceedings, other than the odd sotto voce comment and hand gestures made during pre-trial motions, quelled by counsel.
[4] Counsel agree that where an accused sits in a courtroom is within the sole discretion of the trial judge, to be determined in the interests of a fair trial and court security interests considering the factual circumstances of each individual case. (See: R. v. Lalande (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441 (O.C.A.) at para. 19, and R. v. Levogiannis, [1993] 3 S.C.R. 475 at 493 (S.C.C.)).
[5] The accused relies principally on the Kaufman Inquiry Report Recommendation No. 83 which reads:
Absent the existence of a proven security risk, persons charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than the prisoner’s dock.
[6] In R. v. Browne, 2014 ONSC 2519, [2014] O.J. No. 2099 at paras. 5-6, K.L. Campbell J. observed that two lines of judicial opinion have developed as to the proper placement of the accused in the courtroom. One line of cases generally follow the view expressed in the Kaufman Inquiry Recommendation and lays 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 accused’s fair trial interests. (See: 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.C.); 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.)).
[7] The other line of cases focus on the traditional location of the accused is the prisoner’s dock in the courtroom and any potential fair trial concerns can be overcome by unequivocal instructions by the trial judge that all of the participants in a criminal trial have an assigned 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.
[8] Principal amongst the traditionalist perspective cases is R. v. Gervais, 2001 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.) in which A. Campbell J. observed that the general rule, even in the absence of security concerns is the accused should remain in the prisoner’s dock. He observed that although the Criminal Code is silent on the issue of the position of the accused in the courtroom, the following principles emerge from the cases:
The customary position of the accused in the courtroom is in the dock.
The trial judge has discretion as to the position of the accused in the courtroom in individual cases.
The presence of the accused in the box does not violate his or her Charter rights.
[9] However, A. Campbell J. added, exceptions may arise where the presence of the accused in the dock manifestly precludes him or her from making a full answer and defence. Examples of such exceptions may be when the accused is hearing impaired and cannot hear from the dock or the matter involves a complex commercial fraud with voluminous documents and it would be of assistance to counsel to have the direct participation of the accused.
[10] Rather than being at the accused’s option, as suggested in the recommendation, in my view, the order should be made only when exceptional circumstances exist necessitating that accused be seated outside the prisoner’s dock in order to make full answer and defence, and there are no security concerns. Further, as the customary position of the accused in the courtroom is in the prisoner’s dock, the accused bears the onus of establishing that in the circumstances of his case he should be permitted to sit outside of the prisoner’s dock. See: R. v. Davis, 2011 ONSC 5567 at para 11.
[11] I do not accept that there is an inherent prejudice such that the presumption of innocence is eroded by the presence of an accused in the dock. Juries are reminded a number of times during the course of the trial, both at the outset and its end that the accused is presumed innocent until proven guilty beyond a reasonable doubt. In R. v. Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.) at para. 22, R. A. Clarke J. noted:
The argument proceeds from the assumption that there is a prejudice inherent in the mere fact of an accused being seated in the box. There is no evidence before me to support that proposition. Rather, there is simply the bare submission that this is so. It is, in my view, conjecture at best to assume that the jury will be influenced by the fact that the accused is in the prisoner’s box.
[12] In R. v. Heyden, [1998] O.J. No. 6253 McIsaac J. stated that he was “not prepared to act upon the conjectural possibility that the jury will ignore their sworn duty to presume the innocence of the accused despite the fact that they have been charged with this offence and are seated in the dock during the trial”.
[13] In R. v. Gervais, a case which dealt with two accused, one in custody and one out of custody A. Campbell J. observed at para. 16:
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 the accused on judicial interim release sits elsewhere.
[14] It is an observation with which I agree.
[15] In R. v. Vickerson, supra, DiTomaso J. noted at paras. 13-14:
Everyone in the courtroom has a role and a designated place. It is important that everyone involved in the trial including members of the public, be able to easily identify the accused in the courtroom. R. v. Gervais, supra, at paras. 12, 15; R. v. Heyden, supra, at para. 3.
[16] It is important that the trier of fact, whether jury or judge alone, be able to observe the accused at all times during the proceedings and the accused be in a position to observe all of the proceedings. The courtroom and the prisoner’s box were designed with that purpose in mind.
[17] I note that the location where counsel wishes the accused to sit is only a few feet from the prisoner’s dock. The accused would only be marginally closer to defence counsel. Further, the accused would be sitting behind counsel and in the location where he will be partly obscured from the jury members’ view of him, as will his observation of witnesses in the witness stand.
[18] In this instance, the configuration of the courtroom and the location of counsel table where the defendant would sit by himself behind defence counsel the jury’s view of him would be obscured. The jury box is on one side of the courtroom and defence counsel tables are on the opposite side with the tables for the Crowns, assisting officer and a lectern between the jury and accused. If Mr. Biddersingh was permitted to be seated either with his two counsel at their table (for which there is no room) or at the table located directly behind counsel, the jury would not be able to observe him readily during the trial.
[19] Even though there are no apparent security concerns, beyond the general security concerns of any criminal trial, there are also no exceptional circumstances that necessitate the accused to sit outside the prisoner’s dock during the trial in order to make full answer and defence.
[20] The accused’s right to a fair trial and his presumption of innocence will not be affected by him being seated in the prisoner’s dock.
[21] I am quite prepared at counsel’s request to instruct the jury that everyone in the courtroom has a designated place including the judge, jurors, counsel, witnesses, court staff, public and the accused. Further, the accused, who is presumed innocent, sits in the place traditionally reserved for all defendants and the jury should not attach any significance to take him sitting in his designated location.
[22] The application to sit outside of the prisoner’s dock is denied.
A.J. O’Marra J.
Released: October 15, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
EVERTON BIDDERSINGH
Respondent
REASONS FOR JUDGMENT
A.J. O’Marra J.
Released: October 15, 2015