CITATION: R. v. COOK, 2017 ONSC 697
COURT FILE NO.: CR-16-156
DATE: 20170127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JAMES COOK
Applicant
K.L. McCleave and S. Curry, for the Respondent
P. Hiebert, for the Applicant
HEARD: January 26, 2017
RULING – APPLICATION TO SIT AT COUNSEL TABLE
DiTOMASO J.
APPLICATION
[1] James Cook stands charged with the offences of impaired driving, causing bodily harm to his friend, Jayde Samarzija, and fail to stop, as a result of a single car motor vehicle accident which occurred off Rainbow Valley Road, a rural road in Springwater Township around 10:30 p.m. on September 17, 2014. There were no witnesses to this collision. The central issue is the identity of the driver. Mr. Cook has elected trial by jury.
BACKGROUND
[2] At the Preliminary Inquiry of this matter, Mr. Cook was permitted to sit at counsel table. The first witness for the Crown at the Preliminary Inquiry on January 20, 2016, was Tammy Dexter. At the time of the motor vehicle collision, Mr. Cook was living in a common-law relationship with Ms. Dexter.
[3] While Mr. Cook was on release for these offences, he was charged with assaulting Tammy Dexter on October 4, 2015. He was convicted of that offence on November 10, 2015. Several times during her testimony, Mr. Cook disrupted proceedings which caused the presiding justice to intervene. Mr. Cook was observed mouthing words while Ms. Dexter was giving her evidence. Mr. Cook interrupted his counsel and addressed the court several times during submissions. Mr. Cook was further admonished by the presiding justice for using his phone during the course of the testimony of the officer in charge.
[4] Since committal for trial on July 6, 2016, Mr. Cook was charged with the assault of Tammy Dexter, mischief and breach of probation. He was convicted of these offences on October 14, 2016.
[5] Mr. Cook seeks to be seated at counsel table, both during jury selection and during the course of this trial scheduled for five weeks.
ISSUE
[6] Should the court exercise its discretion in favour of Mr. Cook, permitting him to sit at counsel table?
POSITION OF THE PARTIES
Position of the Defence
[7] The Defence submits that Mr. Cook does not pose a security risk. Tammy Dexter is no longer a Crown witness but may be called by the Defence. Mr. Cook has taken steps to restore his relationship with her and they currently live together. He is undergoing a court ordered anger management course.
[8] It is further submitted that sitting in the prisoner’s dock will prejudice Mr. Cook’s right to a fair trial and has the effect of eroding the presumption of innocence. Any concerns about sight-line can be accommodated by alternative arrangements, that is, the seating of Mr. Cook at a small table near counsel table.
[9] Further, it is submitted that the presence of Mr. Cook in the prisoner’s dock would prevent him from making full answer and defence in that he would be limited in his ability to instruct counsel.
Position of the Crown
[10] The Crown submits that the seating of an accused during a criminal trial is within the sole discretion of the trial judge to be determined in the interests of a fair trial and courtroom security. In exercising that discretion, the trial judge should be guided by the principles set out by Justice Campbell in R. v. Gervais 2001 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.). It is submitted that the Applicant bears the onus of demonstrating that exceptional circumstances exist which would necessitate Mr. Cook sitting elsewhere in the courtroom.
[11] It is submitted that there is an obstructed sight-line between the jury and an accused person sitting at counsel table in the Superior Court courtrooms in the Barrie Courthouse. The placement of Mr. Cook in the prisoner’s dock in the courtroom in the Barrie Courthouse will enable him to have an elevated view of proceedings, to have sight-lines over the Crown and Defence counsel, directly to the jury and from the jury, directly to him.
[12] Further it is submitted that sitting in the prisoner’s dock will not prejudice Mr. Cook’s right to a fair trial. Also, the Crown asserts that sitting in the prisoner’s dock does not violate Mr. Cook’s right to be presumed innocent.
[13] There is no unusual or exceptional need to speak to counsel in the midst of proceedings exceeding that in the normal course of any trial. Defence counsel would have sufficient access to and assistance from Mr. Cook during the course of the trial and it would not be necessary for Mr. Cook to be seated at counsel table. The court could also provide reasonable accommodation to afford Defence counsel opportunities to consult with Mr. Cook. The Crown submits that the application be dismissed.
ANALYSIS
[14] Crown and Defence counsel agree that the seating of Mr. Cook is within the sole discretion of the trial judge. (R. v. Lalande, 1999 2388 (ON CA), [1999] O.J. No. 3267 (C.A.) at para. 19); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.) at paras. 9-10).
[15] A trial judge is to be guided by the following principles as set out by A. Campbell J. in R. v. Gervais[^1]:
(i) The customary position of the accused in the courtroom is in the dock;
(ii) The trial judge has discretion as to the position of the accused in the courtroom in individual cases;
(iii) The presence of the accused in the dock does not violate his Charter rights.
[16] There are cases where exceptional circumstances may present themselves which will necessitate an accused being allowed to sit at counsel table to make full answer and defence. (R. v. Gervais, supra, at paras. 9-10)
[17] Everyone in the courtroom has a role and a designated place. It is important that everyone involved with 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. Vickerson, supra at para. 13)
[18] 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. The courtroom and prisoner’s dock were designed with that purpose in mind. (R. v. Gervais, supra at para. 15; R. v. Vickerson, supra at para. 14)
[19] I find the placement of Mr. Cook in the dock resolves any sight-line problem which might result from Mr. Cook seated at the far end of counsel table or in any other location outside the prisoner’s dock in the courtroom. Counsel for Mr. Cook suggests that Mr. Cook’s placement in the dock violates the presumption of innocence and compromises his right to a fair trial. He places reliance on Recommendation 83 of the Kaufman Inquiry. He cites R. v. Ricketts, 2009 41542 (ON SC) at para. 14. In addition, he submits that the fact that Mr. Cook’s placement in the dock will interfere with his ability to consult and instruct counsel.
[20] I disagree. In my view, there is no basis upon which to draw the conclusion that the presence of Mr. Cook in the prisoner’s dock erodes the presumption of innocence. (R. v. Grandinetti, (2002) 2003 ABCA 307, 178 C.C.C. (3d) 449 (ALTA. C.A.); R. v. Vickerson, supra at para. 15)
[21] In R. v. Gervais, A. Campbell J. commented that:
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 a judicial interim release sits elsewhere. (R. v. Gervais, supra, at para. 16)
[22] Further, Mr. Cook has not satisfied this court that sitting in the prisoner’s dock would cause a diminution of the right to a fair trial. His location in the prisoner’s dock will not prevent him or his counsel from consulting with each other during the course of jury selection and the trial.
[23] The sitting of the accused in the prisoner’s dock is a well-recognized and deeply embedded tradition in the Canadian criminal justice system. In this case, Mr. Cook submits that there is no security risk or basis for any concern by the court regarding his conduct in the courtroom. Notwithstanding his assertions, I am aware that this trial will proceed in the presence of a jury who will be observing Mr. Cook’s demeanour and behaviour throughout the entirety of the jury selection and the trial. The absence of a security risk does not automatically entitle an accused or Mr. Cook in this case, to sit at counsel table. This is not the test. Rather, the test is correctly set out in R. v. Gervais. Mr. Cook bears the onus of showing that exceptional circumstances exist that would necessitate his being seated at counsel table. (R. v. Vickerson, at para. 18; R. v. Badhwar, [2009] O.J. No. 1995 (S.C.J.) at para. 5.
[24] I find there is no evidence that this is one of those unusual cases where either Mr. Cook should sit at counsel table or elsewhere in the courtroom.
[25] In the absence of any evidence suggesting prejudice to Mr. Cook nor there being any exceptional circumstances establishing the need for him to sit beside his counsel, I have not been persuaded that Mr. Cook should be permitted to sit beside his counsel at counsel table, either during the jury selection process or during the course of this trial. (R. v. Gervias, supra; R. v. Badhwar, supra, at para. 5)
[26] Further, I am not persuaded that Mr. Cook’s place in the prisoner’s dock precludes him from making full answer and defence. He will have the opportunity to communicate with his counsel as permitted by the court during the course of jury selection and the trial. Mr. Cook has not met his onus showing that exceptional circumstances exist that would necessitate his being seated at counsel table. Accordingly, during jury selection and during this trial, Mr. Cook will be seated in the prisoner’s dock.
DISPOSITION
[27] For these reasons, this application is dismissed.
DiTOMASO J.
Released: January 27, 2017
[^1]: R. v. Gervais, 2001 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.), at para. 8