COURT FILE NO.: CRIMJ(P) 1309/18
DATE: 2020 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
B.Macguire and P. Maund for the Crown
– and –
DEVON BEALS
R. Gadhia, Counsel for the Accused D. Beals
SHAYNE BEALS
S. Taraniuk, Counsel for the Accused S. Beals
CLIVE WALTERS
A. Abbey, Counsel for the Accused C. Walters
ALEXANDER BUCKLAND
T. Kirichenko, Counsel for the Accused, A. Buckland
HEARD: January 22, 2020
RULING ON APPLICATION TO PERMIT THE ACCUSED TO BE SEATED AT COUNSEL TABLE
J.M. Woollcombe J.
Introduction
[1] The four co-accused are charged with the first degree murder of Heidrah Shraim. The Crown alleges that Devon Beals stabbed the deceased near the Meadowvale Town Centre on November 22, 2017, in retaliation for a fight with him earlier in the day, and that he was assisted by the three co-accused. Their trial is scheduled to begin with jury selection commencing on February 3, 2020.
[2] Three of the accused, Devon Beals, Shayne Beals and Alexander Buckland have been detained in custody pending the trial. Clive Walters has been released from custody and is on bail.
[3] The accused apply for permission to be seated at counsel table during their trial. The Crown opposes the application. Submissions were heard on January 22, 2020.
[4] Counsel all agree that whatever decision is reached, the four accused should all be situated in identical positions for trial. That is to say, that either all should be permitted to sit at counsel table, or all should be seated in the prisoner’s box, including Mr. Walters.
[5] The decision as to where an accused should sit during his trial is a discretionary ruling for the trial judge. It is to be decided in the interests of a fair trial and courtroom security: R. v. Lalande, 1999 CanLII 2388 (ON CA), [1999] O.J. 3267 at para. 19. The most recent consideration of this issue by the Court of Appeal is R. v. A.C., 2018 ONCA 333, a case in which the accused was out of custody and posed no security risk, but was ordered to sit in the prisoner’s box for the trial. On appeal, in considering whether the trial judge had erred in making this order, Hourigan J.A. held, at para. 37, that:
While the default placement of the accused on trial is the prisoner’s box, there is no presumption in this regard. In every case, the accused’s placement must permit him to make full answer and defence, but the issue is to be assessed on a case-by-case basis, having regard to the interests of a fair trial and courtroom security in the particular circumstances of the case.
[6] As Campbell J. observed in R. v. McKenzie, 2018 ONSC 2817, there are conflicting decisions from this court about whether and under what circumstances an accused should be permitted to sit at counsel table. This division appears to have existed for some time. It was also commented upon by van Rensburg J., as she then was, in R. v. Davis, 2011 ONSC 5567 at paras. 8-10 and by Corbett J. in R. v. Ramanathan, [2009] O.J. No. 6233 at paras. 2-7.
[7] Given that this is a discretionary decision, it seems to me unsurprising that different judges have come to different conclusions in the cases before them. I have considered the issue having reviewed the cases provided to me and in light of the evidence and submissions made in respect of this particular case respecting both courtroom security and trial fairness. I do so bearing in mind that the onus is on the accused to establish that they should sit at counsel table rather than in the prisoner’s box.
[8] I will turn firstly to the issue of courtroom security.
Courtroom Security
[9] To assist with the security issues, the Crown called as a witness on the motion Staff Sergeant Ryan Berrigan. A Peel Regional Police Service officer with 22 years of experience, he is the Staff Sergeant assigned to the Davis Courthouse where this trial will take place. He is in charge of the prisoner escort bureau and oversees all prisoner management and transport. He was asked to provide evidence respecting what courtroom security would be required in two scenarios: the first with the four accused sitting in the prisoner’s box and the second with the four accused sitting at counsel table.
[10] Given that the courtroom in which trial is scheduled to take place has only two counsel tables on each side, there was some discussion about how the court could accommodate the four accused and their counsel were they to sit at counsel table. Ultimately, the proposed arrangement, were the accused permitted to sit at counsel table, was as follows: Devon Beals would sit at the front counsel table on my right, closest to the wall, beside Ms. Gadhia; Shayne Beals would sit directly behind Devon Beals at the second counsel table to my right beside Mr. Taraniuk; Alexander Buckland would sit directly behind Shayne Beals at a third, portable counsel table, with his counsel Mr. Kirichenko. Crown counsel would sit at the front counsel table to my left. Mr. Walters would sit at the second table to my left, behind the Crown, next to Mr. Abbey.
[11] Staff Sergeant Berrigan testified that if the four accused were seated in the prisoner’s box, courtroom security would be satisfied with three escort officers being in the courtroom. He acknowledged, as is apparent to me, that the prisoner’s box would be quite tight with the four accused, but that they could be accommodated in it.
[12] Staff Sergeant Berrigan testified that if the accused were to be seated at counsel table in the manner I have described, he believed courtroom security required there to be six escort officers in the courtroom. He identified in his evidence where each of the six officers would be seated.
[13] Asked if there were other security concerns were the accused to be at counsel table, Staff Sergeant Berrigan explained that the accused would need to be searched by the escort officers before leaving the courtroom, a process that would not be necessary were they to be seated in the more secure prisoner’s box.
[14] There was evidence as to how long such a search would take if the accused were seated at counsel table. While initially, the evidence seemed to be that searching each accused and taking them to the cells each time the court breaks could take 30 minutes, it appeared that he agreed that this might well be shorter if there were two escort officers per accused. It seemed to me, as the process was described, that it is highly unlikely that it would in fact take 30 minutes were the escort officers able to work in pairs as was described. I am confident that the process would be quicker than was originally suggested.
[15] Under cross-examination, Staff Sergeant Berrigan maintained his view that six escort officers were necessary notwithstanding that the in-custody accused have been cooperative in the 8 days of pre-trial motions and that there are no concerns about them mis-behaving in the cells. While it was suggested to him that all court security issues could be satisfied with four escort officers, Staff Sergeant Berrigan was not comfortable with this suggestion. He explained that a murder trial can become volatile and that it is important, for the safety of the officers, the court staff, the jury and the public that the escort officers outnumber the accused. He maintained that the usual practice was to have two officers for each accused. While he indicated that he would work with whatever order is made respecting the number of escort officers, he was clear that after consulting with his supervisor and others that he believes the appropriate number is six.
[16] In my view, court security issues could be addressed with the accused out of custody, provided there is sufficient security. While I acknowledge that there has been no evidence that any of these accused pose particular security issues or have created any security issues to date, I am not prepared to second-guess Staff Sergeant Berrigan about the appropriate number of escort officers required to ensure the safety of the courtroom, including the participants in the trial and members of the public. He has experience with these issues that neither counsel nor I have. In my view, if the accused are to be at counsel table, there would need to be six escort officers in the courtroom.
[17] While defence counsel object to having six escort officers in the courtroom, it is agreed by all of them they would prefer to have the accused at counsel table with six escort officers than in the prisoner’s box with three escort officers.
Trial Fairness
[18] Counsel for the accused have advanced a number of reasons why they say trial fairness concerns should lead to a decision that the accused sit at counsel table. They suggest that there is stigma attached to being in the prisoner’s box and that this may undermine the presumption of innocence. They also point out that in what is expected to be a trial of several weeks, there may well be times during the trial when counsel will want to speak to their clients or the accused will want to speak with their counsel. If they are seated together, this is easily accommodated without disruption of the trial. By contrast, if the accused are in the prisoner’s box, counsel would either need to stand up and walk to the prisoner’s box to speak with their clients, which is disruptive, or counsel would need to request that the jury be excused so that they can speak to their clients, which is also disruptive.
[19] The Crown says that the default position is for the accused to be in the prisoner’s box. The Crown submits that it is speculative to accept that jurors will ignore the presumption of innocence and that it can be presumed that if they are told to make nothing of the fact that the accused are sitting where they are, they will follow that direction regardless of where the accused are seated. The Crown says that it is only in exceptional circumstances that the accused should be permitted to sit with counsel. In this case, it is the Crown’s position that the accused’s needs to communicate with counsel are not exceptional and can be accommodated by providing them with pads of paper in the prisoner’s box and affording them the opportunity to speak with counsel before court, at breaks and over lunch. Finally, the Crown submits that it is important for the jury be able to have clear sightlines of the accused and that this is better facilitated from the prisoner’s box than from being seated at counsel table where views of them may be obstructed.
[20] I do not agree with defence counsel that there is a prejudice and stigma that necessarily flows from having those on trial in the prisoner’s box. There is no evidence before me to support this position. As van Rensburg J. noted in Davis, while the prisoner’s box may suggest that there is a need to separate the accused from others in the courtroom, it is important not to overestimate the prejudice that flows from where an accused sits. Furthermore, I am confident that were the accused seated in the prisoner’s box, and the jury told that nothing should be made of this fact, that the jury could be trusted to follow my instructions and that the presumption of innocence would not be undermined. Regardless of where the accused are seated, it is going to be apparent to the jury that they are charged with a serious offence and that there are security measures in place to ensure the safety of the courtroom and those involved in the trial. I do not see the issue of potential stigma from being in the prisoner’s box as determinative of the issue.
[21] I have considered the Crown’s argument about the importance of the jurors being able to see the accused and accept that this is a valid concern. I recognize that were the accused to be in the prisoner’s box, they would be seated at a level elevated by one step from the rest of the courtroom. But, I have looked carefully at the proposed locations of the four accused were they to be sitting at counsel table. In the courtroom in which the trial is to take place, they would not be what I see as a significant distance from the jury box. While there is potential for obstruction from the lectern, it could certainly be moved so as to ensure a clear sightline. Other than it, the only potential obstruction between the jury and the accused would be counsel. I am prepared to rely on defence counsel, as officers of the court who propose to be seated with their clients, to ensure that their clients can be seen by the jury. I am not persuaded that in this case in this courtroom the accused need to be in the prisoner’s box to ensure that they can be seen and observed by the jury.
[22] I have also considered the defence position that the accused need to be able to communicate with counsel in order to receive a fair trial. It is, obviously, essential that communications between counsel and their clients be facilitated.
[23] On the one hand, I think that counsel, who are clearly well-prepared for trial, are capable of conducting this trial without constant communications with their clients, and with the assistance of notes written by their clients that could be shared during breaks.
[24] But, on the other hand, I also recognize that communications between counsel and the accused would be much more regularly and easily facilitated and accommodated if the accused were sitting close to counsel at counsel table. With four accused and four lawyers, it as potentially quite disruptive for one or more counsel to stand up and walk to the prisoner’s box while witnesses are testifying. It is also disruptive to the trial for one or more counsel to request repeated breaks to discuss issues that may arise with their clients. In a trial that will be some weeks, with four accused, who all have different interests and concerns, having the accused at counsel table would ensure that counsel and their clients are able to communicate regularly, effectively and efficiently, thus assisting them to receive a fair trial.
[25] I have also considered the argument made by the defence about the importance of the jury considering each of the four individual accused separately. This is a case in which I anticipate that the accused may well advance different arguments. They are not likely to all speak from the same perspective. There may be a danger of the jury too easily considering them together as a group if they are all seated closely together in the prisoner’s box. I think it will assist them in being viewed as individuals if they are seated separately in the courtroom with their counsel.
[26] Finally, I am also mindful of the fact that Mr. Buckland is in protective custody. Devon Beals and Shayne Beals have been told that they are not to communicate with him. There was evidence before me to suggest that that Devon Beals may have communicated with Mr. Buckland after court one day when they returned to Maplehurst Detention Centre. Trial fairness concerns demand that these accused be kept separated. The prisoner’s box would be a tight location for the four accused. In my view, having them sit at counsel table, physically separated from each other and with their lawyers, may well assist in ensuring that there is no further communication between Devon Beals and Mr. Buckland.
[27] While the accused are charged with first degree murder, I have specifically not considered this in my assessment as to where they should sit as it is not a relevant factor.
[28] Having considered the relevant factors, I conclude that the accused have met their onus and should be permitted to sit at counsel table for this trial. They will be permitted to sit at the locations I have already set out. I permit there to be six escort officers in the courtroom for the trial. Should those responsible for courtroom security determine that fewer escort officers are necessary, they may of course, reduce that number.
[29] This decision is subject to my further direction or revision if required during the course of the trial.
Woollcombe J.
Released: January 27, 2020
COURT FILE NO.: CRIMJ(P) 1309/18
DATE: 2020 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BEALS, BEALS, WALTERS AND BUCKLAND
RULING ON APPLICATION TO PERMIT THE ACCUSED TO BE SEATED AT COUNSEL TABLE
WOOLLCOMBE J.
Released: January 27, 2020