COURT FILE NO.: YC-14-613
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
B. McGuire and D. D’Iorio, for the Crown
Respondent
- and -
I.M.
A. Herscovitch and T. Cass, for the Applicant
Applicant
HEARD: January 28, 2019, at Brampton
RULING ON APPLICATION OF I.M. TO BE SEATED AT COUNSEL TABLE DURING HIS TRIAL
This proceeding is governed by publication restrictions under section 110 of the Youth Criminal Justice Act.
André J.
[1] Twenty-four year old I.M., was a young person as defined under the Youth Criminal Justice Act, S.C. 2002, c.1, when he was charged with first degree murder. He brings an application for permission to sit at counsel table during his trial rather than being seated in the prisoner’s box. His counsel submits that absent any security concerns arising from I.M.’s request, the order sought eliminates any prejudice which may arise from I.M. being seated in the prisoner’s box during his trial.
ANALYSIS
[2] Two competing lines of authority underlie the overarching principle in such applications that a trial judge has the discretion to determine whether or not an accused should be allowed to sit at counsel table during his or her trial: see R. v. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C.); R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. No. 3267 (Ont. C.A.) at para. 19. The traditional view has been expressed by Campbell J. in R. v. Gervais, 2001 CanLII 28428 (ON SC), [2001] O.J. No. 4942 (S.C.J.) at para. 8, to the effect that the prisoner’s dock is ordinarily the best place for an accused during a trial. Campbell J. also noted that “it is highly speculative to simply assume that juries might ignore the presumption of innocence and heavy burden of proof on the Crown, in spite of clear and repeated instructions as to the mandatory application of those foundational legal principles, and instead draw negative inferences against an accused, simply because he or she happens to be seated in his or her assigned courtroom location.” Campbell J. further noted in Gervais that to guard against any improper inference about the accused seated in a prisoner’s box during a trial, an instruction can be given to the jury cautioning them against drawing any adverse conclusion from an accused being seated in the prisoner’s dock: see also R. v. G.C., 2013 ONSC 2904, [2013] O.J. No. 2279 (S.C.J.), at para. 17 and R. v. Spagnoli, [2011] O.J. No. 3548 (S.C.J.), at para. 7; McKenzie.
[3] In the recent case of R. v. A.C., [2018] O.J. No. 1785 (Ont. C.A.), the Court of Appeal rejected a ground of appeal relating to the appellant’s placement during his trial by noting at paras. 30-39 that “there was nothing to show that any prejudice flowed from the appellant’s placement in the prisoner’s box” [and] “no basis to suggest that the appellant’s placement impaired his right to make full answer and defence.” A number of decisions have adopted this traditional view and denied a request from an accused to be seated at counsel table during a trial: R. v. Heyden, [1998] O.J. No. 6253 (S.C.J.), at paras. 4, 7-9; R. v. C.B., [1998] O.J. No. 5519 (S.C.J.), at para. 6; R. v. W.J.R., [1999] O.J. No. 4091 (S.C.J.) at para. 8-10.
[4] The applicant relies on a different line of authorities in support of his position. Prominent among these authorities is the 1998 Report by the Honourable Fred Kaufman entitled The Commission on Proceedings Involving Guy Paul Morin (The Report). The Report concluded that accused persons should be entitled to sit at counsel table absent a security risk: noted in R. v M.T., 2009 CanLII 43426 (ONSC), at para. 3. The applicant also relies on the U.S. case of Walker v. Butterworth, 599 F.2d 1074 (1979) in which the United States First Circuit Court of Appeals noted that:
Confinement in a prisoner dock focuses attention on the accused and may create the impression that he is somehow different or dangerous. By treating the accused in this distinctive manner, a juror may be influenced throughout the trial. The impression may well erode the presumption of innocence that every person is to enjoy.
[5] Regarding the Crown’s submission that sitting in the prisoner’s dock during the trial is the customary and traditional arrangement, the applicant adopts the conclusion of Nordheimer J. in M.T. at para. 6 that “[c]ustom is a poor rationale for perpetuating a state of affairs that may carry with it problematic, if unintentional consequences.”
[6] I concur with Nordheimer J. in M.T. that no court custom is immutable, irrespective of how sacrosanct it may appear to be. The overarching concern is whether the custom impairs an accused’s right to make full answer and defence or whether it infringes or encroaches on the presumption of innocence or the right to a fair trial.
[7] The Crown submits, with great conviction, that there is no evidence that having an accused sit in the prisoner’s dock during his or her trial has any of these consequences. Any submission to the contrary, the Crown contends, is mere speculation.
[8] The Crown is correct that there is no empirical evidence that the placement of an accused in the prisoner’s dock has had any discernible impact on a jury’s deliberations. However, the paucity of such evidence is attributable to s. 649 of the Code which proscribes the disclosure of a jury’s deliberations for virtually all reasons. The absence of such evidence however, is not proof that the potential for prejudice when an accused sits in a prisoner’s box, does not exist. To require an accused to present evidence that sitting in a prisoner’s box impairs his or her rights to make full answer and defence may be an onerous requirement given the confidentiality of a jury’s deliberations.
[9] In my view, the constellation of the following factors weighs in favour of the granting of the applicant’s motion. First, I.M. is charged with a very serious offence. Second, courts have taken judicial notice of the existence of prejudice experienced by racialized persons and have instituted measures, such as, for example, permitting an accused to pose a Parks challenge to a prospective juror, to ensure as much as possible that a jury’s deliberations is not affected by such bias or prejudice. Third, while there is no evidence that sitting in a prisoner’s box is either prejudicial to an accused or is potentially prejudicial, there is similarly no evidence disproving such actual or potential prejudice. Fourth, the Crown has not expressed any security concerns if I.M. is permitted to sit at counsel table. Fifth, having I.M. sit at counsel table will facilitate communication with his counsel during the trial and will obviate the need for defence counsel to make periodic trips to the prisoner’s box to speak to his client.
[10] The combination of these factors persuade me that I should err on the side of caution. Accordingly, I.M. will be permitted to sit at counsel’s table during the course of his trial.
André J.
Released: January 30, 2019
COURT FILE NO.: YC-14-613
DATE: 20190130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
I.M.
RULING ON APPLICATION OF I.M. TO BE SEATED AT COUNSEL TABLE DURING HIS TRIAL
André J.
Released: January 30, 2019