A NON-PUBLICATION ORDER IN THIS PROCEEDING HAS BEEN ISSUED
UNDER THE CRIMINAL CODE OF CANADA, SECTION 648(1)
CITATION: R. v. Barrett, 2017 ONSC 3867
COURT FILE NO.: CR-16-159
DATE: 20170707
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TERRENCE BARRETT
Defendant
F. Temple and C. Peters, for the Crown
A. Robbins and A. Kwan, for the Defendant
HEARD: June 21, 2017
RULING ON POSITION OF THE DEFENDANT IN THE COURTROOM
QUINLAN J.:
Overview
[1] Mr. Barrett stands charged that he, on or about February 15, 2015, in the city of Barrie, did commit the offence of second-degree murder against Milan Segota and aggravated assault against Aimee Novak. Mr. Barrett was automatically detained pursuant to the Criminal Code, R.S.C., 1985, c. C-46 and remains in custody on the charges.
[2] The defence seeks to have Mr. Barrett sit at counsel table rather than in the dock. The Crown opposes the application.
Positions of the parties
Position of the Defence
[3] The defence argues that:
a. There is a stigma attached to a defendant who is seated in the dock. In light of potential prejudice to the defendant, fairness requires that he be seated outside of the dock;
b. The defence would benefit from Mr. Barrett’s presence at counsel table since he would then have the opportunity to assist as well as effectively and efficiently participate in the trial, without distraction and in a confidential and timely manner;
c. Mr. Barrett's comfort should be taken into account by the court as this trial is anticipated to last up to or about six weeks;
d. The Crown bears the onus of establishing that the defendant should be seated in the dock;
e. There are no security concerns or special circumstances to defeat the presumption that a defendant can be seated outside the dock; and
f. In order to address any security concerns that the court might have, the defence is not opposed to Mr. Barrett remaining shackled if he is outside the dock, so long as this is not visible to the jury.
[4] The defence relies on recommendation 83(a) of the Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (1998) which 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.
[5] The defence points to a number of cases in support of its position as set out in the defence casebook, including R. v. Ramanathan, [2009] O.J. No. 6233 (S.C.J.).
Position of the Crown
[6] The Crown argues that the onus is on the applicant, especially here where detention in custody is automatic given the nature of the offence. There is no analysis or evidence to support the above recommendation from the Kaufman report and further Parliament has not chosen to enact legislation to deal with this issue.
[7] No exceptional circumstances exist here to suggest that Mr. Barrett ought not to be positioned where defendants are traditionally seated. There is no evidence that it is prejudicial for Mr. Barrett to be seated in the dock. Any risk of prejudice to the defendant is, at best, speculative.
[8] The placement of the dock aids jurors in their ability to observe defendants during the trial. In fact, having Mr. Barrett in a raised position, within the sightline of all jurors, reiterates that he is a person, not just the "accused". It is speculative to assume that Mr. Barrett's presence in the dock will impede or frustrate communication with his counsel.
[9] The Crown adopts the reasoning of Campbell J. in R. v. Gervais, [2001] O.J. No. I942 (S.C.J.).
[10] The Crown also relies on security concerns: Mr. Barrett was convicted of a violent offence in August 2014, charged with this s. 469 offence in February 2015 and charged with violent offences - participating in a riot and obstructing/resisting a peace officer - in June 2015 while in custody. His criminal record discloses breaches of court orders. The fact that Mr. Barrett was not a security problem at the preliminary hearing does not preclude the court from taking preventative steps to ensure safety during a trial which has the potential to be a considerably more intense environment.
Analysis
[11] In R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C.), L’Heureux-Dubé J. adopted as correct the following comment of Harradence J.A. in R. v. Faid (1991), 1981 ABCA 139, 61 C.C.C. (2d) 28 (Alta. C.A.):
[I]n a criminal trial the seating and location of the accused lies within the sole discretion of the learned trial Judge. That discretion cannot be interfered with unless its exercise manifestly precluded the accused from making full answer and defence to the charge.
[12] There are two approaches to considering an application to seat the defendant at counsel table. One approach is set out in Ramanathan: that it is within the discretion of the trial judge to determine where the defendant sits during the trial and, absent the existence of a security risk, a defendant should be entitled, at his option, to be seated with his counsel, rather than in the prisoner’s dock.
[13] The other approach is set out in Gervais: that the customary position of the defendant in the courtroom is in the dock, the trial judge has discretion as to the position of the defendant in the courtroom, and the presence of the defendant in the dock does not violate his Charter rights. Exceptions have been noted where the presence of the defendant in the dock manifestly precludes him from making full answer and defence, for example, in a complex commercial fraud case for the purpose of assisting counsel with voluminous documents or where the defendant is hearing-impaired and cannot hear from the dock. The approach in Gervais notes that everyone in the courtroom has a different role and a clearly designated place.
[14] As the court held in Gervais at para. 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 communication between accused and counsel.
[15] In R. v. Vickerson, [2006] O.J. No. 351 at para.18 (S.C.J.), DiTomaso J. had this to say about the location of the defendant:
The seating of the accused in the designated prisoner’s dock is a well-recognized and deeply embedded tradition in the Canadian criminal justice system. The absence of a security risk does not automatically entitle an accused… to a seat at counsel table… The test is correctly set out in Regina v. Gervais. The [applicant] bears the onus of showing that exceptional circumstances exist that would necessitate [him] being seated at counsel table.
[16] I find that there is nothing beyond conjecture or speculation to support the proposition that stigma attaches to a defendant who is seated in the dock, leading to potential prejudice. As noted by B.P. O’Marra J. in R. v. J.A., [2017] O.J. No. 1628 at para. 12 (S.C.J.), “mock orchestrations cannot replicate a real trial in real time with fulsome instructions from the presiding judge."
[17] The presence of the defendant in the prisoner’s dock does not erode the presumption of innocence: R v. D.S., 2010 ONSC 7253, [2010] O.J. No. 5749 at para.15 (S.C.J.). I agree with the position of the Crown and a number of courts that this line of thinking could seriously undermine the entire jury system. We must trust in the integrity and ability of jurors to follow instructions: R. v. Browne, 2014 ONSC 2519, [2014] O.J. No. 2099 (S.C.J.).
[18] If Mr. Barrett were to sit at counsel table, some of the jurors’ views of Mr. Barrett would be obstructed. This is the case in all of the courtrooms in this courthouse. The jurors should have the opportunity to fully observe Mr. Barrett during the course of the trial.
[19] This is not the type of case where full answer and defence could be affected. Mr. Barrett does not need to assist his counsel with voluminous documents. He will be permitted to have paper and a soft tip pen. I will accommodate any reasonable request for a recess to permit private consultation between Mr. Barrett and his counsel. If Mr. Barrett were to sit at counsel table, the jury as well as the judge and counsel are more likely to be distracted by communication between Mr. Barrett and his counsel.
[20] I have considered the defence submission on Mr. Barrett’s comfort but do not find it compelling as there is no specified reason or justification for the concern.
[21] This case brings with it a number of security concerns. Mr. Barrett was convicted in 2014 of assaulting Ms. Novak, a complainant in this matter. Although his criminal record discloses no other convictions since 2007, his adult record includes convictions for resisting a peace officer, obstruction and offences that are contrary to the administration of justice. He is outstanding on charges of participating in a riot and obstruct/resist peace officer, offences that are alleged to have taken place on June 18, 2015 at Central North Correctional Centre while Mr. Barrett was in custody on the charges before the court.
[22] I am satisfied that the onus is on the applicant to establish that exceptional circumstances exist that would necessitate him being seated outside the dock. Having considered all the relevant factors, I am satisfied that the applicant has not met his onus.
[23] Any concerns of the defence about the location of the defendant can be mitigated by opening instructions to the jury confirming that the defendant is seated in the dock – the place reserved for the accused person. The jury can be told that the seating arrangement is a product of history and tradition and nothing more and it must not be seen as a reflection on the character or disposition of the accused person, who is presumed innocent.
[24] Accordingly, the application is dismissed.
QUINLAN J.
Released: July 7, 2017```