Court File and Parties
COURT FILE NO.: CR-18-90000587-0000
DATE: 20191127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICARDO FRANCIS
Applicant
Counsel:
David Wright, for the Crown
Jennifer Penman and Laura Remigio, for the Applicant
HEARD: November 12 and 13, 2019
Ruling on application to permit the accused to be seated at counsel table
B. P. O’MARRA J.
[1] Ricardo Francis faces multiple charges with alleged offence dates of July 29, 2017 and August 8, 2017. The charges for July 29, 2017 include attempted murder and other firearm offences. He is alleged to have fired shots at Dushane Demerti Peart. On the same indictment Mr. Peart faces several firearm offences related to the same incident. The charges against Mr. Francis dated August 8, 2017 involve possession of a loaded handgun and possession of heroin, cocaine and fentanyl for the purpose of trafficking. Both accused are in custody. Mr. Francis has applied to be permitted to sit at counsel table for his trial, including jury selection. Mr. Peart has not made such an application.
[2] Mr. Francis has no criminal record and there was no evidence of any security concerns related to him, other than the need to keep him separate and apart from Mr. Peart in light of the allegations of July 29, 2017.
[3] Counsel for Mr. Francis submitted that his appearance in the prisoner’s dock during the trial would reflect negatively on the presumption of innocence and impede his interaction with his counsel.
[4] Crown counsel opposed the application.
[5] On November 13, 2019 I dismissed the application. These are my reasons.
[6] The onus is on the accused to establish that he should be permitted to sit at counsel table. R. v. Davis, 2011 ONSC 5567 at para. 11.
[7] The seating and location of the accused lies within the sole discretion of the trial judge. That discretion will not be interfered with unless its exercise manifestly precludes the accused from making full answer and defence: R. v. Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 S.C.R. 475 at para. 34, approving R. v. Faid (1981), 1981 ABCA 139, 61 C.C.C. (2d) 28 (Alta. C.A.) at p. 40.
[8] In R. v. Gervais, 2001 CanLII 28428 (ONSC), Justice Archie Campbell provided a useful review of the principles related to such applications:
8 Although the Criminal Code is silent on this issue, the following principles emerge:
The customary position of the accused in the courtroom is in the dock
The trial judge has discretion as to the position of the accused in the courtroom in individual cases
The presence of the accused in the dock does not violate his or her Charter rights.
9 Exceptions may arise where the presence of the accused in the dock manifestly precludes him from making full answer and defence.
12 Everyone in the courtroom including the judge, the accused, the counsel, the jury and the court officials, have a different role in the proceedings and a clearly designated place in the courtroom.
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 communications between accused and counsel.
16 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 judicial interim release sits elsewhere.
17 If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place, including the judge and the jurors and the accused, that the accused like the judge and the jurors sits in the place traditionally reserved for him, and they cannot take that against the accused who are presumed innocent. For instance:
Mr. D. is the accused person before the court, the defendant. Sometimes we use the word defendant, sometimes the word accused. Sometimes we may refer to him by his name, Mr. D.
Don’t take anything against him by the use of the word defendant or accused. As you are now well aware, he is presumed innocent until proven guilty beyond a reasonable doubt, and the fact that someone calls him accused or defendant doesn’t mean anything.
Notice that Mr. D. has his own place in the courtroom. That’s the place reserved for the defendant, where defendants regularly sit. He has his place in the courtroom just like you have your place in the jury box and the witnesses have their place in the witness box and I have my place, and counsel have their table and the reporter, and the registrar, and the deputy have their own place.
So don’t take anything one way or another in relation to Mr. D. because he’s sitting in the place of the courtroom especially reserved for him.
18 Some feel the dock is an anachronism that should be abolished. Some feel that a “stigma” attaches to the accused who sits in the dock. Others point out that this view is supported by nothing more than feeling or conjecture, unsupported by any evidence. Some say that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness box. There are views to the contrary and a number of orders have been made in individual cases to permit defendants to sit outside the dock. Despite these views there is a strong current of judicial opinion that the dock is ordinarily the best place for the accused.
20 Although there is no evidence of any particular security concern in this case, there is no evidence that this is one of those unusual cases where either defendant should sit at counsel table or elsewhere in the court.
[9] There is a significant divergence of opinion in rulings of this court on such applications. Rulings that permitted the accused to sit at counsel table include the following: R. v. S.(S)., [1997] O.J. No. 250 (S.C.J.); R. v. Kinkead, [1999] O.J. No. 1742 (S.C.J.); R. v. MacDonald, [1999] O.J. No. 5445 (S.C.J.); R. v. Smith, [2007] O.J. No. 2579 (S.C.J.); R. v. Ramanatham, [2009] O.J. No. 6233 (S.C.J.). Rulings where the application was denied include the following: R. v. Heyden, [1998] O.J. No. 6253 (S.C.J.); R. v. B. (C), [1998] O.J. No. 5519 (S.C.J.); R. v. R. (W.J.) (1998), 1999 CanLII 15065 (ON SC), 30 C.R. (5th) 342 (O.S.C.); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.); R. v. Spagnoli and Shore, 2011 ONSC 4656; R. v. G.C., 2013 ONSC 2904; R. v. Browne, 2014 ONSC 2519; R. v. J.A., 2017 ONSC 2043.
[10] After a careful review of the divergent judicial views on this issue, I am of the opinion that the accused should be seated in the dock during the trial. Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept the notion that the position of the accused in the dock undermines these fundamental principles in any way. It is critically important that we trust in the integrity and ability of jurors to follow these instructions as well as important instructions related to limited use of certain evidence, for example:
• Cross-examination of an accused related to a criminal record;
• Similar act evidence admitted for one use but not for propensity/character reasoning;
• On a joint trial where a post-arrest statement of one accused cannot be used against the o other; and
• Limited use of prior inconsistent or consistent statements of a witness.
[11] RESULT: The application is dismissed.
B. P. O’MARRA J.
Released: November 27, 2019
COURT FILE NO.: CR-18-90000587-0000
DATE: 20191127
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RICARDO FRANCIS
Applicant
ruling on application to permit the accused to be seated at counsel table
B. P. O’MARRA J.
Released: November 27, 2019