COURT FILE NO.: CR-17-14406
DATE: 20180312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH SCOTT YOUNG
Defendant
David Slessor and Bryan Guertin, for the Crown
Krystal Manitius and Stephen Proudlove, for the Defendant
HEARD: February 26, 2018
PUBLICATION BAN:
Section 542(2) restricts the publication of admissions and confessions tendered at a preliminary inquiry, and applies until the accused is discharged, or, if ordered to stand trial, until that trial has ended.
RULING ON APPLICATION FOR ACCUSED TO SIT OTHERWISE THAN IN THE PRISONER’S DOCK
EDWARDS J.:
Overview
[1] Mr. Young seeks an order that will allow him to participate in his upcoming trial by sitting beside counsel as opposed to the traditional location of an accused in the prisoner’s dock. The application is opposed by the Crown. The Crown called evidence through Staff Sergeant James Griepsma (Griepsma) of the Durham Regional Police. For the last two and a half years, Griepsma has had the responsibility for courthouse security in the Oshawa Courthouse, as well as the responsibility of dealing with prisoner exchanges. Griepsma was entirely candid in his evidence and acknowledged that he has a “conservative bent” so as to ensure the safety of everyone in the courtroom, including an accused.
[2] As it deals specifically with Mr. Young, Griepsma acknowledged that there was nothing specific in terms of Mr. Young being an escape risk or anything in connection with his behaviour while he has been in custody. Griepsma’s sole concern was with respect to Mr. Young’s prior criminal record which included convictions related to violence; robbery, aggravated assault and a concealed weapon. The record is not an enviable one.
Positions of the Crown and Defence
[3] Both Crown and defence counsel agree that the state of the jurisprudence in this area can be best summarized by acknowledging that there are essentially two schools of thought. The first school of thought would follow the line of reasoning that the location for an accused in a criminal trial is traditionally in the prisoner’s dock. The opposing line of authority follows the recommendation of Mr. Justice Kaufman in the Kaufman Commission Report, Report of the Commission on Proceedings Involving Guy Paul Morin, 1998, Vol. 2, where he stated at recommendation 83(a) of his report that:
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.
[4] Crown counsel has specific concerns as it relates to Mr. Young, based on events that occurred during the course of the preliminary inquiry that might suggest Mr. Young has a difficulty with controlling his temper. In response to that specific concern, defence counsel suggests that if Mr. Young demonstrates similar behavior in front of a jury it can only be to his detriment and, as such, unlikely to occur.
[5] Crown counsel suggests that an accused’s position traditionally is in the prisoner’s dock, because it is designed to ensure that the jury can see an accused throughout the entirety of the trial. Defence counsel responds by suggesting that it is not a difficult task to configure Mr. Young’s location at counsel table in such a way that the jury will, in fact, still be able to see him.
Analysis
[6] While the actual location of an accused during the course of the trial may be the subject matter of debate, what is not beyond debate is the fact that the locating of an accused in a courtroom is within the discretion of the trial judge (see R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 85 C.C.C. (3d) 327 (SCC)). In exercising his or her discretion, a trial judge must do so in a manner that preserves the fairness of the trial and the security of the courtroom.
[7] I have taken into account the concerns of Griepsma, and I have reviewed Mr. Young’s criminal record which I have already indicated is lengthy. While Mr. Young’s record does reflect crimes of violence, as well as convictions which relate to his failure to comply with court orders, there is nothing in the record that suggests Mr. Young is an escape risk. There is no evidence that he has been a problem inmate during the period of time that he has been incarcerated. I have also taken into account those occasions at the preliminary inquiry when Mr. Young was inappropriately vocal during court proceedings. If I had any concern about Mr. Young being a flight risk, or specific security concerns that arose out of his conduct over the last two years that he has been incarcerated, then I would have little hesitation to resorting to the traditional location of the accused, that being in the prisoner’s dock.
[8] I have reviewed those lines of authority relied upon by the Crown, particularly the decisions of McIsaac J. in R. v. Heyden, [1998] O.J. No. 6253, and R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942, a decision of A. Campbell J. Both of those cases cast doubt on the suggestion largely relied upon by the defence, that there can be any inference drawn from where an accused is located - specifically in the prisoner’s dock, that cannot be dealt with by way of a direction from the trial judge to the jury. Essentially, it is suggested that provided jurors understand that everyone has a place within the courtroom, including an accused, that they should not attach any significance to the fact that an accused is located in the prisoner’s dock.
[9] Many of the cases relied upon by the Crown also point to the importance of the trier of fact, in this case a jury, being able to observe an accused at all times during the proceedings, and that an accused be in a position to observe all of the proceedings. I entirely agree. However, that importance cannot flow from a concern that the jury be able to draw any inferences from how an accused conducts himself or herself in the prisoner’s dock.
[10] If an accused shows body language or facial expressions in response to how evidence unfolds in the courtroom, it would be an entirely wrong inference for a jury to draw from that body language or facial expression any inference of guilt or innocence. After all, jurors are constantly reminded in the closing instructions that they receive from trial judges across this province, that they should not make any decision solely on the basis of the demeanour of a witness. To suggest that the demeanour of an accused in the prisoner’s dock – even before he or she elects to give evidence, would be entirely wrong. In my view, it is a completely irrelevant consideration that jurors should be able to see an accused at all times so that they can formulate any kind of conclusion from how an accused presents in the prisoner’s dock. This would equally hold true wherever an accused is located, whether he or she is in the prisoner’s dock or sitting at counsel table.
[11] One of the first things jurors are told after they have been empaneled as a jury is the importance of some fundamental principles of our criminal justice system, beginning with the presumption of innocence and the burden always being on the Crown to prove its case beyond a reasonable doubt. Jurors are told an accused does not have to testify or call any evidence in his defence. If these instructions are to mean something, I fail to understand how having an accused sit in a prisoner’s dock so a jury can watch his or her reactions as the evidence unfolds can be tolerated. Surely, this is inconsistent with our admonition to the jury that an accused does not have to testify. If an accused does not have to testify, how then should it be appropriate for a jury to take into account anything that happens in a courtroom that is not evidence called in the normal process? What an accused does in the prisoner’s dock is completely irrelevant to the issue of guilt or innocence. Guilt or innocence is decided by the evidence, not on an accused’s demeanour whether he is in the prisoner’s dock or at the counsel table.
[12] While there is no empirical research that would confirm that there is any prejudicial inference that jurors might come to by seeing an accused located in the prisoner’s dock, it is clear to me from the recommendation of Justice Kaufman - in his report dealing with the wrongful conviction of Guy Paul Morin, that locating an accused outside of the prisoner’s dock was and is intended to provide a level playing field that reflects that a person is innocent until proven guilty.
[13] While I entirely respect the views expressed by my colleagues, both past and present, that the traditional location of an accused should be in the prisoner’s dock, I respectfully prefer the line of authority that is summarized in the decision of Trafford J. in R. v. Smith, [2007] O.J. No. 2579.
[14] On the facts before me, recognizing that Mr. Young is charged with the most serious criminal offence in the Criminal Code next to first degree murder, and recognizing that his criminal record is less than enviable, I still have to fall back on the fundamental principle that Mr. Young is presumed to be innocent of this charge until he is proven guilty. He is entitled, absence any evidence of a security risk, that he should be permitted to be situated at or close to the counsel table in the courtroom where the trial of this matter will take place.
[15] I am therefore ordering that Mr. Young be permitted to sit at a counsel table, which is to be positioned in such a fashion that everyone in the courtroom will have a clear view of Mr. Young and, perhaps equally important, Mr. Young will have a clear view of everyone else in the courtroom. If this means that Mr. Young has to be placed at the end of the counsel table facing toward the jury, I see no reason why this does not accord with the spirit of my Order. Security personnel may be seated discreetly in the general vicinity of Mr. Young. Mr. Young shall not present in the presence of the jury in handcuffs, but security staff - if they deem it advisable, may use leather shackles to restrain Mr. Young’s mobility. At no time shall those shackles, if they are used, be used in such a fashion that the jury can see them. Mr. Young is to be provided with a notepad and a soft-tipped pen so that he may take notes and communicate with his counsel. The notes and pen are to be returned to counsel at any time when Mr. Young is being removed from the courtroom.
[16] My decision to allow Mr. Young to sit at counsel table is not a final decision. It may be reviewed at any time during the course of the trial, on motion by the Crown or the defence, if events unfold during the course of the trial that may necessitate a change in the location of Mr. Young from counsel table to the prisoner’s dock.
[17] If there are any further issues that need to be addressed flowing from these Reasons, I may be spoken to.
Justice M.L. Edwards
Released: March 12, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSEPH SCOTT YOUNG
RULING ON APPLICATION FOR ACCUSED TO SIT OTHERWISE THAN IN THE PRISONER’S DOCK
Justice M.L. Edwards
Released: March 12, 2018