COURT FILE NO.: CR14-2310 DATE: 2016/05/12
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Gurpreet Ronald and Bhupinderpal Gill Defendants
COUNSEL: Brian Holowka and Jason Neubauer, for the Crown Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald James Harbic, for the Defendant Bhupinderpal Gill
HEARD: May 10, 2016
Ruling on POSITION OF ACCUSED IN THE COURTROOM
Parfett J.
[1] The accused in this matter ask that I permit them to sit with their counsel instead of in the prisoner’s dock.
Background
[2] The accused, Bhupinderpal Gill and Gurpreet Ronald, are jointly charged with the first degree murder of Mr. Gill’s wife, Jagtar Gill. On January 29, 2014, Mrs. Gill was found dead in her home. She had been beaten and stabbed.
[3] At the time of Mrs. Gill’s death, Mr. Gill was out shopping with his daughter and nephew. However, shortly after the death the police learned of an affair between Mr. Gill and Ms. Ronald. A ruse led them to discover that DNA left at the scene belonged to Ms. Ronald.
[4] Both accused were arrested a few weeks after the death of Jagtar Gill.
Legal Principles
[5] Trial judges remain divided on the issue of whether presumptively, accused persons should be permitted to sit at counsel table with their lawyers or whether they should sit in the prisoner’s dock.
[6] Recommendation 83 of the Kaufman Commission states:
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 in the prisoner’s dock.
[7] In R. v. Lalande, the Ontario Court of Appeal indicated:
Where an accused person sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security. I am aware that Commissioner Kaufman has made recommendations concerning where an accused person may sit during his or her trial. Counsel for the respondent informed the court that in light of Commissioner Kaufman’s recommendations, the Ministry of the Attorney General has adopted the policy with respect to accused persons who are not in custody and who present no security concerns, that while the ultimate decision rests with the presiding judge, the Crown should normally consent to the accused person being permitted to sit at the counsel table should he or she request to do so.
[8] This policy relates to accused who are out of custody. In the present case, both accused are in custody. Therefore, the issue remains open for debate. One position is that taken in R. v. Gervais. The relevant portions of that decision are as follows:
Although the Criminal Code is silent on this issue, the following principles emerge:
- 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 dock does not violate his or her Charter rights.
[9] The reasoning behind the position that absent special circumstances, the accused ought to sit in the prisoner’s dock is that each person in the courtroom has their own role and therefore, a particular place in the courtroom. According to this view, the accused’s place is in the prisoner’s dock where they can be at centre stage, the jury can see them and observe their responses to the evidence, and any communications between counsel and the accused are less distracting to others.
[10] This position is one held by many trial judges. However, there are also many trial judges who take the contrary view that absent special circumstances, the accused should be permitted to sit at counsel table even when they are in custody. The reasoning of this contrary position is that:
The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man except as the necessary safety and decorum of the court may otherwise require.
[11] Consequently, there is no consistent approach to this issue and trial judges have broad discretion regarding where an accused should sit in the courtroom. It goes without saying, that this discretion must be exercised on a principled basis.
Analysis
[12] In the present case, the accused are in custody, but present no particular security risks. On one occasion, Mr. Gill was allegedly observed interacting with some of the spectators but that matter was dealt with without incident and there has been no repetition. However, I agree with the comments in Gervais, that the accused must be seated where they can be seen by the jury. In addition, the accused must be able to see the witnesses and communicate with reasonable ease with their counsel. As a practical matter, in the courtroom chosen for this trial – and there is no other available – the only location where these requirements can be met is from the prisoner’s dock.
[13] Counsel’s suggestion that the courtroom be rearranged by removing seating for the public or building a platform to make the accused visible to the jury and witnesses and still allow them to sit outside the prisoner’s dock is not reasonable in the circumstances. The trial is set to start in three days.
[14] Furthermore, any potential concern about the ‘stigma’ attached to the accused sitting in the prisoner’s dock can, in my view, be dealt with by an instruction to the jury.
Conclusion
[15] In conclusion, the accused will sit in the prisoner’s dock. The application is dismissed.
Madam Justice Julianne Parfett