Court File and Parties
COURT FILE NO.: CR-21-30000-302
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
Counsel: Jason Gorda and Caolan Moore, for the Crown C. Stephen White and Kristianne C. Anor, for Kedar Abdl Guerra Christian Angelini, for Ethan Lou Lee Philip Klumak and Michael Moeser, for Atneil Fitzroy Nelson
HEARD: May 19, 2022
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By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.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] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams. The accused apply to be permitted to sit at counsel table during this trial. The principal issue for the jury in this case will be identification. There is no doubt that someone emerged from a motor vehicle in which at least one other person was present and shot and killed Mr. Williams. The Crown alleges that Mr. Lee was the shooter, and that the other two accused were in the vehicle with him and were parties to the offence, Mr. Nelson as the driver, and Mr. Guerra as the person who directed Mr. Lee to shoot Mr. Williams.
[2] As I have said in many earlier decisions,[^1] consistent with what has been said in still 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 the jurors 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.
With respect to the third proposition, I do not see tradition as a consideration that should necessarily carry the day. However, I do consider it to be important that the accused and the jurors be clearly in sight of each other. That may not be the case in the courtroom where this case will be tried if the accused sit at counsel table.
[6] With respect to courtroom security, I do not accept the view that an accused should be permitted to sit at counsel table absent affirmative 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 their 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 each of the accused.
[7] As a result, in the past I have generally permitted persons charged with murder who are on judicial interim release to sit at counsel table, while frequently insisting that persons charged with murder who are detained in custody remain in the dock, particularly where they have a criminal record that includes crimes of violence, disobedience of court orders or a history of institutional infractions.
[8] In this case, as I have said, the accused have been ordered to stand trial on a charge of first degree murder, the murder was committed with a firearm, and the accused are detained in custody. These facts alone raise some concern about security. That concern is increased by the fact that Mr. Guerra has a lengthy criminal record, although not a terribly serious one, that includes a conviction for sexual assault, four convictions for uttering threats, two convictions for assault and three convictions for failing to comply with a court order. In addition, he has had one incident of misconduct while detained pending trial involving a physical altercation. Finally, with respect to Mr. Guerra, I am aware from watching the video of his police interview that he can be quite volatile.
[9] While Mr. Lee has no criminal record, he has had several incidents of misconduct while detained pending trial, including refusing to take direction from a Corrections Officer and making a threat against a Corrections Officer. Mr. Nelson has only one dated entry on his criminal record.
[10] There are some additional concerns about security in this case. There is hostility between Mr. Guerra and Mr. Lee on the one hand, and Mr. Nelson on the other, stemming from the fact that Mr. Nelson implicated the other two accused in the murder in his post-arrest statement to the police. If the accused sit at counsel table, there will have to be six security officers stationed in the tightly packed area of the court where counsel sit, which I do not consider desirable. The need for that much visible security goes a fair distance in offsetting whatever possible prejudice is avoided by the accused being out of the box.
[11] In all 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 their placement in the box will enhance the reliability of the fact-finding process in this case.
[12] As a result, the application is dismissed. I will, as I have said, instruct the jury that they are to draw no adverse inference from this fact.
M. DAMBROT J.
RELEASED: May 25, 2022
COURT FILE NO.: CR-21-30000-302
DATE: 20220525
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
REASONS FOR DECISION
DAMBROT J.
RELEASED: May 25, 2022
[^1]: See, for example, R. v. A.D., 2003 CanLII 43624, 180 C.C.C. (3d) 319; R. v. Vivar, 2003 CanLII 18040 (ON SC), [2003] O.J. No. 5054; R. v. Riley, [2009] O.J. No. 1677; R. v. Davani and Bigby, (unreported, April 19, 2017); R. v. Harty, 2019 ONSC 396.