Court File and Parties
COURT FILE NO.: CR-20-145 DATE: 20220503 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Respondent
- and -
Richard Taylor Applicant
COUNSEL: Janet Booy and Mark Dean, for the Respondent Jennifer Penman and Kristen Dulysh, for the Applicant
HEARD: May 2, 2022
Ruling – Application for Accused to Sit at Counsel Table
The Honourable Mr. Justice Skarica
[1] Richard Taylor is charged with two counts of first degree murder.
[2] Richard Taylor has no criminal record and was, prior to his arrest, a school teacher.
[3] Richard Taylor is in custody and has been in custody continuously since his arrest on January 23, 2019 on these two murder charges.
[4] The accused, like many accused recently, brings an application to sit at counsel table.
[5] The Crown, like many Crowns recently, opposes the application. The Crown in this case relies on a factum that appears very similar to the other factums that have been provided to me on other occasions on similar applications. I’m assuming that the Crown is relying on some type of data base to mass produce these factums when opposing defence applications where the defence seeks to have the accused sit at counsel table.
[6] Rather than have the law re-argued on each and every one of these applications, I humbly propose to set down a series of principles, as I understand them, relevant to applications regarding the accused sitting at counsel table.
[7] Accordingly, I believe that the following principles set out the current state of the law regarding defence applications to have the accused sit at counsel table:
The basic principle of law regarding “sitting at counsel table” applications brought by the accused is set out in R. v. Lalande, [1999] O.J. No. 3267 (C.A.) Justice Borins at para 19 held that “where an accused sits during his or her trial is within the discretion of the presiding judge, to be determined in the interests of a fair trial and courtroom security” – see also R. v. Wills, [2006] O.J. No. 3662, at para 32, R. v. Barreira 2017 ONSC 948 at para 24.
Lalande referred to the Morin Commission Report which recommended that absent the existence of a proven security risk, the accused should be entitled to sit at counsel table – see Lalande at para 19.
The Morin Commission recommendation is deserving of respect but it is not binding on Ontario Superior Courts – see Wills at para 31.
The traditional approach is set out by Justice Campbell in R. v. Gervais, [2001] O.J. No. 4942 (Ont. S.C.) which states that (1) the customary position of the accused in the courtroom is in the dock (2) the court has discretion to order otherwise and (3) the presence of the accused in the prisoner dock does not violate his or her Charter rights – see Gervais at paras 8-10, Barreira at para 25.
A number of Ontario Superior Court rulings, subsequent to Gervais, have criticized “custom” as being a proper justification for confining an accused in the prisoner dock during his/her trial – see R. v. M.T., [2009] O.J. No. 3424 SCJ at paras 3-6, R. v. Ramanathan, [2009] O.J. No. 6233 (SCJ) at paras 16-20, R. v. I.M., 2019 ONSC 767 at paras 4-6, R. v. Osborne, 2019 ONSC 219 at paras 13-15.
Recent case law from the Ontario Court of Appeal indicates that while the default placement of an accused on trial is in 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 – see R. v. A.C., 2018 ONCA 333 at para 37.
Given the Ontario Court of Appeal’s comments in Lalande and A.C., I reject the proposition, set out in some dated cases, that the defence bears the onus of showing that exceptional circumstances exist that would necessitate the accused being seated at counsel table.
In my opinion, the proper test, consistent with Lalande and A.C., is that a Court is to exercise its discretion while balancing factors such as the need for a fair trial in accordance with the presumption of innocence, security, maintaining order in the courtroom and sundry management problems – see Wills at paras 39-41, Barreira at para 27.
In addressing the balancing act between the need for a fair trial and the need for appropriate security, the trial judge should hold a voir dire/hearing on the matter and consider appropriate evidence adduced by either the Crown or defence.
In virtually all of the many similar applications I have heard, security staff can be counted on to recommend that the accused remain in the prisoner’s box. Security issues are not to be decided by security staff although their views may well carry considerable weight – see Wills at para 45, Barreira at para 48 relying upon R. v. McNeill (1996), 29 O.R. (3d) 641 (Ont. C.A.).
Should the judge decide to permit the accused to sit at counsel table, conditions may be imposed upon the accused. Handcuffs or shackles may be ordered within the discretion of the trial judge – see Wills at para 45-51.
Regarding the issue of restraints, a voir dire/hearing should also be held – see Wills at para 45. The judge must balance the duty to ensure the safety of all participants to the proceedings and to prevent escape with the need to maintain the dignity of the accused in the context of the presumption of innocence. The Crown bears the onus of establishing reasonable grounds for the imposition of some form of restraint, see Wills at para 45.
Application of Law to Present Circumstances
[8] Richard Taylor has no criminal record. At the brief hearing that took place, the evidence presented was that Mr. Taylor is not a security risk and has behaved appropriately without incident since his arrest. However, Mr. Taylor has also been in custody since his arrest due to the circumstances of the charges.
[9] In order to achieve a fair balance having regard to the dignity of the accused in the context of the presumption of innocence and also having regard to factors relevant to the prevention of escape and courtroom security, I order the following:
- The accused is permitted to sit at counsel table.
- The accused is to be restrained only by “silent” shackles around his ankles – i.e. seat belt type shackles.
- Security staff can be placed at locations in the courtroom that best prevent escape but at the same time, the selected locations must be placed sufficiently far away from counsel table so as to permit brief private conversations between counsel and client.
Skarica J. Released: May 3, 2022