Court File and Parties

COURT FILE NO.: CR-15-30000339-0000 DATE: 20170403 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.A. Defendant

COUNSEL: J. Battersby and L. Zamojc, for the Crown/Respondent M. Bojanowska, for the Defendant/Applicant

HEARD: May 18 and 19, 2016

RULING ON APPLICATION TO PERMIT THE ACCUSED TO BE SEATED AT COUNSEL TABLE

B. P. O’Marra, J.

[1] J.A. faced charges of first degree murder and attempt murder. The victims were his six-year-old daughter and his seven-year-old son. J.A. was in custody as his trial proceeded to conclusion in June of 2016. At the outset of pretrial motions in May 2016, he applied to be permitted to sit at counsel table in the presence of the jury. That application was denied. These are my reasons.

[2] The parties agreed that at the time of this application, J.A. had no criminal record other than a very minor property offence. There was no evidence of security concerns related to the time he had been in custody awaiting trial. Counsel for J.A. based the application on the following factors:

• The jury might draw an unfair adverse inference against J.A. based on his being in the prisoner’s dock;
• There were no security concerns related to the conduct of J.A. while in custody; and
• Having J.A. at counsel table would allow him to participate in the trial in a more meaningful way.

[3] The onus is on the accused to establish that he should be permitted to sit at counsel table. R. v. Davis, 2011 ONSC 5567 at para. 11.

[4] The seating and location of the accused lies within the sole discretion of the trial judge. That discretion will not be interfered with unless its exercise manifestly precludes the accused from making full answer and defence: R. v. Levogiannis, [1993] 4 S.C.R. 475 at para. 34, approving R. v. Faid (1981), 1981 ABCA 139, 61 CCC (2d) 28 (Alta. C.A.) at p. 40.

[5] In R. v. Gervais, 2001 ONSC 28428, Justice Archie Campbell provided a useful review of the principles related to such applications:

8 Although the Criminal Code is silent on this issue, the following principles emerge:

1. The customary position of the accused in the courtroom is in the dock
2. The trial judge has discretion as to the position of the accused in the courtroom in individual cases
3. The presence of the accused in the dock does not violate his or her Charter rights.

9 Exceptions may arise where the presence of the accused in the dock manifestly precludes him from making full answer and defence.

12 Everyone in the courtroom including the judge, the accused, the counsel, the jury and the court officials, have a different role in the proceedings and a clearly designated place in the courtroom.

15 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 at centre stage. The focus of the trial remains on them. The trier of fact is able to observe their responses to the evidence as it unfolds. The jury and indeed the judge and counsel are on balance less likely to be distracted by communications between accused and counsel.

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 an accused on judicial interim release sits elsewhere.

17 If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place, including the judge and the jurors and the accused, that the accused like the judge and the jurors sits in the place traditionally reserved for him, and they cannot take that against the accused who are presumed innocent. For instance:

Mr. D. is the accused person before the court, the defendant. Sometimes we use the word defendant, sometimes the word accused. Sometimes we may refer to him by his name, Mr. D.

Don’t take anything against him by the use of the word defendant or accused. As you are now well aware, he is presumed innocent until proven guilty beyond a reasonable doubt, and the fact that someone calls him accused or defendant doesn’t mean anything.

Notice that Mr. D. has his own place in the courtroom. That’s the place reserved for the defendant, where defendants regularly sit. He has his place in the courtroom just like you have your place in the jury box and the witnesses have their place in the witness box and I have my place, and counsel have their table and the reporter, and the registrar, and the deputy have their own place.

So don’t take anything one way or another in relation to Mr. D. because he’s sitting in the place of the courtroom especially reserved for him.

18 Some feel the dock is an anachronism that should be abolished. Some feel that a “stigma” attaches to the accused who sits in the dock. Others point out that this view is supported by nothing more than feeling or conjecture, unsupported by any evidence. Some say that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness box. There are views to the contrary and a number of orders have been made in individual cases to permit defendants to sit outside the dock. Despite these views there is a strong current of judicial opinion that the dock is ordinarily the best place for the accused.

20 Although there is no evidence of any particular security concern in this case, there is no evidence that this is one of those unusual cases where either defendant should sit at counsel table or elsewhere in the court.

[6] There is a significant divergence of opinion in rulings of this court on such applications. Rulings that permitted the accused to sit at counsel table include the following: R. v. S.(S)., [1997] O.J. No. 250 (S.C.J.); R. v. Kinkead, [1999] O.J. No. 1742 (S.C.J.); R. v. MacDonald, [1999] O.J. No. 5445 (S.C.J.); R. v. Smith, [2007] O.J. No. 2579 (S.C.J.); R. v. Ramanatham, [2009] O.J. No. 6233 (S.C.J.). Rulings where the application was denied include the following: R. v. Heyden, [1998] O.J. No. 6253 (S.C.J.); R. v. B. (C), [1998] O.J. No. 5519 (S.C.J.); R. v. R. (W.J.) (1998), 1999 ONSC 15065, 30 C.R. (5th) 342 (O.S.C.); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.); R. v. Spagnoli and Shore, 2011 ONSC 4656; R. v. G.C., 2013 ONSC 2904; R. v. Browne, 2014 ONSC 2519.

[7] Professor Meredith Rossner testified in support of the application. She was an assistant professor of criminology at the London School of Economics. She participated in and co-authored a study entitled The Dock on Trial: Courtroom Design and the Presumption of Innocence. This work had been through the first round of peer review but had not yet been published. Changes to the study had been suggested by peer reviewers and the status was “revise and resubmit” which is a form of conditional acceptance if the revisions were made as requested. Professor Rossner hoped that the paper would be published in July or August 2016.

[8] The researchers hypothesized that the design of the courtroom might impact jurors’ perceptions of the accused, and that the dock could have a prejudicial effect. The study was based on a mock trial. A significant obstacle in testing the hypothesis is that jurors in Australia, the United Kingdom and Canada are legally barred from revealing the content of their deliberations to anyone even after the trial is finished. Jurors in the United States are not bound by juror secrecy but most American courts do not have or use docks. Professor Rossner testified that Massachusetts is the only state that currently uses a dock but it is only in a ceremonial courtroom that is rarely used.

[9] The mock trial in 2014 was forty-five minutes long and was conducted three times a day with several waves of jurors. The evidence presented was entirely circumstantial and related to a charge of conspiracy to commit a terrorist act. The accused did not testify. The only change in the various presentations of the mock trial was to alter the position of the accused in the courtroom. The accused would be seated at the far end of counsel table, in an open dock or in a secure dock. When the accused sat with counsel, 33% of the jurors convicted. When the accused was seated in either the secure or open dock, 47% of the jurors convicted.

[10] A similar study titled Towards a Distributed Courtroom was conducted in 2015 by the same researchers. It re-tested the 2014 findings that the dock might be prejudicial to an accused. However, it did not replicate the previous study because it did not include a secure dock. Professor Rossner was involved in the design of this study but not involved in writing the report, which was a draft consultation paper. She described the report as “very, very preliminary.” The researchers intended to later amend the consultation paper so that it could be peer reviewed.

[11] The method used in the 2014 experiment in no way captures the solemnity and dynamics of a real trial. This was a forty-five minute enactment of a trial where everyone involved knew there was nothing truly at stake. There was no suggestion in the report that the authors considered whether jurors’ knowledge that everyone involved in the trial was acting and following a script could have affected jurors’ views and perceptions of the trial process and the accused. The jurors returned individual verdicts before deliberations. There were minimal instructions to the jury unlike the critical and often lengthy instructions in real trials.

[12] The researchers acknowledged that this is the first experiment on this issue and that “greater certainty will come with replication.” The fundamental problem is that these mock orchestrations cannot replicate a real trial in real time with fulsome instructions from the presiding judge. The methodology and conclusions drawn in this experiment cannot be reasonably extrapolated to the circumstances of a real trial.

[13] After a careful review of the divergent judicial views on this issue, I am of the opinion that the accused should be seated in the dock during the trial. Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept the notion that the position of the accused in the dock undermines these fundamental principles in any way. It is critically important that we trust in the integrity and ability of jurors to follow these instructions as well as important instructions related to limited use of certain evidence, for example:

• Cross-examination of an accused related to a criminal record;
• Similar act evidence admitted for one use but not for propensity/character reasoning;
• On a joint trial where a post-arrest statement of one accused cannot be used against the other; and
• Limited use of prior inconsistent or consistent statements of a witness.

[14] RESULT: The application is dismissed.

B. P. O’Marra, J. Released: April 3, 2017