Court File and Parties
COURT FILE NO.: CR-18-30000130-0000
DATE: 2019-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SIMEON HARTY
Counsel:
Julie Battersby and Craig Coughlan, for the Crown
B. Craig Bottomley and Andrea VanderHeyden, for Simeon Harty
HEARD: January 14, 2019
Publication Ban
By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.
Reasons for Decision
M. Dambrot J.:
[1] Simeon Harty applies to be permitted to sit at counsel table during this trial. He is charged with first degree murder and attempted murder. The principle issue for the jury in this case will be identification. There is no doubt that someone shot and killed one of the victims, and shot at but failed to kill the other. The Crown alleges that Mr. Harty was the shooter.
[2] As I have said in many earlier cases,[^1] consistent with what has been said in other cases, it is beyond dispute that a trial judge has the discretion to permit the accused to sit at counsel table rather than in the dock, which is the traditional place for accused persons. This discretion should be exercised in a manner that balances the interests of a fair trial and courtroom security. Amongst the fair trial considerations that have been recognized by courts in considering applications of this sort are the following:
• Being seated in the dock has been said to undermine the presumption of innocence.
• Being seated in the dock is said to inhibit the ability of the accused to assist counsel.
• The tradition in our legal system that judge, jury, witnesses, accused and counsel are all present in the sight of each other is fostered by the placement of the accused in the dock.
[3] I note the following about these considerations.
[4] I am not aware of any empirical evidence in support of the first proposition. Responsible arguments have been made on each side. Based on my own experience, I am unconvinced that being seated in the dock prejudices the accused in the eyes of jurors. But, out of an abundance of caution, I give a jury instruction that they are not to draw an adverse inference from the placement of the accused in the dock. Nevertheless, where there are no serious concerns weighing against seating the accused at counsel table, I err on the side of permitting it.
[5] The second proposition is a matter of common sense. Sitting in the dock does not prevent an accused from communicating with counsel in the course of the trial, but it makes consultation both more difficult and more obvious. Again, where there are no serious concerns weighing against seating the accused at counsel table, I generally permit it in part for this reason.
[6] With respect to the third proposition, I do not see tradition as a consideration that should necessarily carry the day. However I do see the need to ensure that the accused is in clear sight of the jurors as being of particular importance in an identification case such as this one.
[7] With respect to courtroom security, I do not accept the view that an accused should be permitted to sit at counsel table absent proof that he or she will act in a manner that jeopardizes courtroom security. That would place the bar much too high. A trial judge is obliged to avoid putting the public at risk by insisting on such proof before exercising precaution. The judge must do his or her best to assess the risk to security based on the circumstances of the case, and act appropriately. This includes considering the nature of the offence alleged as well as what is known about the particular accused.
[8] As a result, in the past I have generally permitted persons charged with murder who are on bail to sit at counsel table, while insisting that persons charged with murder who are detained in custody remain in the accused’s dock, particularly where they have a criminal record that includes crimes of violence or a history of institutional infractions.
[9] In this case, as I have said, the accused has been ordered to stand trial on charges of first degree murder and attempted murder, and is detained in custody. These facts alone raise some concern about security. That concern is increased by the fact that Mr. Harty has a criminal record, although not a terribly serious one, and that he has committed several assaults while in custody for this matter. If these considerations stood alone, I would be inclined to refuse this application. However I consider the need to keep the accused in the sight of the jury determinative in the circumstances of this case.
[10] I have said that this is an identification case. But it is not an ordinary identification case. There is no eye witness to the crime who will say that the accused is the perpetrator. The Crown’s case is circumstantial. Central to the Crown’s position is that a person seen purchasing cigarettes in a gas station convenience store shortly before the shooting is the shooter, and that that person is Mr. Harty. The jury will hear other evidence suggesting that the person in the video is Mr. Harty, but in the end they will be called upon to compare the appearance of the man in the video to the appearance of the accused, and reach their own conclusion. That assessment will be enhanced by a continuous and unobstructed view of the accused throughout the trial, which will only be possible if the accused is in the dock.
[11] While undoubtedly all of the jurors would have an opportunity to see the accused from time to time if he is seated at the counsel table, that view would be obstructed by the presence of counsel, tables and equipment placed between the jury and the accused. In addition, the accused will be seated at a lower level than the jurors if he is seated at counsel table, which may make it harder for the jury to see his face for any extended period of time. I further note that the configuration of our courtroom will make it particularly difficult for jurors at the left end of the jury box to see the accused clearly if he is seated at counsel table. The jurors obviously should all have the same ability to see the accused. Requiring the accused to sit in the dock will mitigate these concerns by positioning him such that he can be more readily observed by the entire jury.
[12] If the accused were to testify in his own defence, the jury’s opportunity to see him clearly would be enhanced. But I have no idea whether or not he will testify. I was not told that he will, and would not ask.
[13] In all of these circumstances, I am convinced that it will contribute to the maintenance of a safe courtroom for the accused to remain in the box, and that his placement in the box will enhance the reliability of the fact-finding process in this case.
[14] As a result, the application is dismissed. I will, as I have said, instruct the jury that they are to draw no adverse inference for this fact.
M. DAMBROT J.
RELEASED: January 16, 2019
COURT FILE NO.: CR-18-30000120-0000
DATE: 2019-01-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SIMEON HARTY
REASONS FOR RULING
DAMBROT J.
RELEASED: January 16, 2019
[^1]: See, for example, R. v. A.D., 2003 43624 (ON SC), [2003] O.J. No. 4900, R. v. Vivar, 2003 18040 (ON SC), [2003] O.J. No. 5054, and R. v. Riley, [2009] O.J. No. 1677.