Court File and Parties
COURT FILE NO.: CR-17-912 DATE: 20190109 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – JORDAN OSBORNE Defendant
Counsel: Lisa Wannamaker for the Crown Magdalena Wyszomierska for the Defendant
HEARD: January 8, 2019
Ruling on Mr. Osborne’s Application to Sit at Counsel Table
BOswell J.
[1] Mr. Osborne is charged with first degree murder. It is alleged that he bludgeoned a man to death with a hammer. His trial on that charge begins, before a jury, in less than two weeks. In advance of the trial his lawyer has asked for a ruling that he be permitted to sit at counsel table during the course of the trial, including jury selection.
The Positions of the Parties
[2] This particular application is argued frequently in this court. The arguments, on either side of the issue, are almost always the same.
[3] The defendant submits that requiring him to sit in the prisoner’s dock during the whole of the trial flies in the face of the presumption of innocence. It stigmatizes and prejudices his right to a fair and impartial hearing. Moreover, it compromises his ability to communicate freely with his counsel during what, quite likely, is going to be the most important three to four weeks of his life.
[4] The defendant contends that, absent any established and pressing security concerns, he is presumptively entitled to sit at counsel table throughout the trial.
[5] The Crown asserts that the dock is the usual and customary seating position for any accused person in a criminal trial in Canada. The dock tends to attenuate any security concerns that may be present in cases, like this one, where the accused is charged with an offence of extreme violence. Moreover, the jury needs to be able to see the accused throughout the trial. In the particular courtroom engaged in this case, one-third of the jurors will have difficulty seeing Mr. Osborne if he is seated at counsel table.
[6] The Crown contends that the onus is on the accused to demonstrate that exceptional circumstances exist which would justify the accused stepping out of the dock and sitting with counsel. Those circumstances do not, in the Crown’s submission, exist here.
The Governing Authorities
[7] The seating arrangements in the courtroom, including the placement of the accused – whether in or out of the prisoner’s dock – are in the discretion of the trial judge: R. v. Levogiannis (1993), 85 C.C.C. (3d) 327 (S.C.C.). The exercise of the discretion involves a balancing of the fair trial right and dignity of the accused person, on the one hand, and the protection and security of all trial participants on the other: R. v. Lalande, [1999] O.J. No. 3267 (C.A.).
[8] Two lines of authority appear to have developed in terms of the presumptive starting point for applications of this nature.
[9] One line of authority, represented by cases such as R. v. M.T., [2009] O.J. No. 3424 (S.C.J.), R. v. Ramanthan, [2009] O.J. No. 6233 (S.C.J.) and R. v. Smith, [2007] O.J. No. 2579 (S.C.J.) suggests that the starting point for the analysis is that accused persons should be permitted to sit at counsel table, unless compelling reasons are demonstrated otherwise. As Campbell J. observed in R. v. Browne, 2014 ONSC 2519, at para. 5:
These authorities generally act upon the recommendation of the Morin Commission that, absent the existence of a proven security risk, persons charged with criminal offences should be entitled, at their option, to be seated with their counsel, rather than in the prisoner's dock. See: F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, at pp. 1167-1168.
[10] The other line of authority, represented by cases such as R. v. Gervais, [2001] O.J. No. 4942 (S.C.J.), R. v. G.C., 2013 ONSC 2904 and R. v. Browne, as above, suggests that trial judges should start from the presumption that accused persons will remain in the prisoner’s dock throughout the trial. The onus, therefore, is on the accused person to demonstrate that there are exceptional circumstances present warranting the right to sit at counsel table.
Discussion
[11] No evidence was filed on this application. I have no evidence of any criminal antecedents in Mr. Osborne’s life. I am told he has a criminal record, including an assault on his brother, but that is as much as I know. I otherwise have no evidence that there are any particular security concerns with respect to Mr. Osborne. I have no evidence of any “exceptional” circumstances that might support a determination one way or the other.
[12] The absence of an evidentiary record makes the issue of the presumptive starting point for the analysis particularly important. In other words, if there is a presumption one way or the other, no party adduced any evidence capable of rebutting it.
[13] The purported presumption favouring the use of the prisoner’s dock appears to be grounded in historical practice, or custom. In my view, Justice Nordheimer debunked the idea of using custom to support a legal conclusion or practice in R. v. M.T., as above, at para. 6.
[14] The purported presumption in favour of the choice to sit at counsel table appears to be grounded on more solid footing, given the recommendations of the Kaufman Commission.
[15] Having said that, and as I noted in R. v. Howley, 2016 ONSC 243, appellate authority does not impose a presumption in terms of courtroom seating arrangements. The trial judge enjoys a wide discretion in making such determinations. It makes little sense, in my view, to unnecessarily fetter an otherwise wide discretion by the imposition of an unnecessary presumption. The decision, in each case, should be contextually driven.
[16] In this case, the context includes the following features:
(a) Mr. Osborne is accused of committing an unprovoked attack of extraordinary violence; (b) Mr. Osborne is on trial for first degree murder; one of the most serious offences in the Criminal Code. Having said that, there is no evidence that he poses any particular security risk to any of the participants in the trial; (c) There is no evidence that Mr. Osborne is a flight risk; (d) There is no evidence that Mr. Osborne has been oppositional with authorities while in custody, nor any evidence that he has behaved in any problematic fashion while in court during numerous previous appearances; (e) Communications with his counsel will be facilitated should he be permitted to sit at counsel table; and, (f) At least some of the jurors may have difficulty seeing Mr. Osborne during the trial if he is seated at counsel table.
[17] Ultimately, this is not a particularly compelling application one way or the other.
[18] On balance, and in the absence of any demonstrated security concerns, I am inclined to grant the application.
[19] Sitting at counsel table will attenuate whatever inherent prejudice there may be to Mr. Osborne’s dignity and the presumption of innocence arising from remaining in the prisoner’s dock. Moreover, it will clearly facilitate solicitor-client communication.
[20] The sightline issue is not one that I find persuasive. Mr. Osborne is on trial, not on display. His reactions, if any, to evidence as it comes in, are of no evidentiary moment.
[21] In the result, the application is granted. Mr. Osborne may be seated at counsel table, unrestrained, throughout the course of the trial. This ruling is subject to change, of course, should the security landscape change.