Court File and Parties

COURT FILE NO.: CR-21-1-261 DATE: 20230324

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - SAAID MOHIADIN

Counsel: Tim DiMuzio and David Parry, for the Crown Dirk Derstein and Laura Remigio, for the accused

Heard: March 21, 2023

K.L. Campbell J.:

Pre-Trial Ruling

Application to Permit the Accused to Sit at Counsel Table

A. Overview

[1] The accused, Saaid Mohiadin, is currently charged with the first degree murder of Jerome Belle. The offence is alleged to have taken place in Toronto, on the afternoon of March 19, 2019. The accused has been in custody in relation to this matter since his arrest. Defence counsel now bring an application to permit the accused to sit at counsel table, rather than in the prisoner’s box.

[2] Shortly after the conclusion of the argument of this pre-trial motion, I advised the parties that the application was dismissed, and that the accused would be required to remain seated in the prisoner’s box for the duration of his trial. I also advised the parties that I would subsequently provide reasons explaining this result. These are those reasons.

B. The Applicable Legal Principles

[3] There continues to be many conflicting judicial authorities on whether, and in what circumstances, an accused person should be permitted to sit at counsel table instead of in the prisoner’s box. This is explained, perhaps, by the fact that such decisions are said to be within the broad discretion of the trial judge, and should be determined based upon balancing the fair trial and court security interests in the factual circumstances of each individual case. See: R. v. Lalande (1999), , 138 C.C.C. (3d) 441 (Ont.C.A.), at para. 19; R. v. Levogiannis, , [1993] 4 S.C.R. 475, at p. 493; R. v. Grandinetti, 2003 ABCA 307, at para. 84, affirmed, 2005 SCC 5; R. v. A.C., 2018 ONCA 333, at para. 37.

[4] Some authorities express the concern that isolating the accused in the prisoner’s box may potentially undermine the presumption of innocence and thus negatively impact upon the fair trial interests of the accused. See, for example: R. v. Oke, [1994] O.J. No. 4436 (Ont.Ct.Gen.Div.); R. v. S.(S.), [1997] O.J. No. 250 (S.C.J.), at paras. 17-21; 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. M.T., [2009] O.J. No. 3424 (S.C.J.), at paras. 3-5; R. v. Ramanathan, [2009] O.J. No. 6233 (S.C.J.); R. v. Young, 2018 ONSC 1564; R. v. Douse and Smith, 2022 ONSC 3163, at paras. 30-34. These authorities often place reliance upon the recommendation of the Morin Commission that, absent the existence of a proven security risk, persons charged with criminal offences should be entitled, at their option, to be seated with their counsel, rather than in the prisoner’s box. See: F. Kaufman, The Commission on Proceedings Involving Guy Paul Morin (1998), vol. 2, at pp. 1167-1168. Defence counsel generally advanced this position on this application and relied upon some of these authorities.

[5] Other authorities focus upon the traditional location of the accused in the prisoner’s box and cast real doubt the validity of the premise that any potential fair trial concerns cannot be adequately overcome by unequivocal jury instructions by the trial judge. These authorities rely upon the traditional functional reasons that accused persons are kept seated in the prisoner’s box during their trial, and express confidence that juries will easily understand that everyone has their own place in the courtroom and, in this regard, the accused is no different than the jury, the lawyers, the court officials, the witnesses, and the trial judge. See, for example: 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.) (1999), , 30 C.R. (5th) 342 (Ont.S.C.J.); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.); R. v. Sadiqi (2009), , 68 C.R. (6th) 346 (Ont.S.C.J.), at paras. 20-28; R. v. Dunbar, 2010 ONSC 5642; R. v. Minoose, 2010 ONSC 6129; R. v. D.S., 2010 ONSC 7253; R. v. Spagnoli and Shore, 2011 ONSC 4656; R. v. C.(G.), 2013 ONSC 2904; R. v. Cook, 2017 ONSC 697, at paras. 14-26; R. v. Bush, 2017 ONSC 6171, at paras. 8-15; R. v. Barrett, 2017 ONSC 3867, at paras. 11-24; R. v. Francis, 2019 ONSC 6617, at paras. 7-10. The Crown generally advanced this position in response to this application and relied upon some of these authorities.

[6] The judicial authorities that have considered this issue from a constitutional perspective have uniformly held that the mere presence of the accused in the prisoner’s box, without more, does not violate any constitutional rights protected by the Charter of Rights, and that jury instructions can be provided to ensure that the jury fully understands the presumption of innocence and the burden of proof upon the Crown and appreciates that no inference adverse to the accused can properly be drawn from the simple presence of the accused in the prisoner’s box. See: R. v. Power (1992), , 101 Nfld. & P.E.I.R. 265 (Nfld.C.A.), at p. 268; R. v. Heyden, at paras. 4-8; R. v. Isaac, 2020 ONSC 7243, at para. 9; R. v. Cook, at para. 20. In this regard, the jury can be appropriately reminded that everyone in the courtroom, including the judge, jury, witnesses, counsel, court officials, and accused, all have a different role in the proceedings, and typically occupy a clearly designated place in the courtroom.

[7] In any event, as the customary position of the accused in the courtroom is the seat in the prisoner’s box, the accused must establish that, in the individual circumstances of the case, he or she should be permitted to sit at counsel table. In each individual case, the issue must be resolved considering the interests of a fair trial and courtroom security. See R. v. Badhwar, [2009] O.J. No. 1995 (S.C.J.); R. v. Davis, 2011 ONSC 5567, at para. 11; R. v. C.(G.), at para. 9; R. v. Biddersingh, 2015 ONSC 6334, at para. 10; R. v. J.A., 2017 ONSC 2043, at para. 3. As Hourigan J.A. observed, in delivering the judgment of the Court of Appeal for Ontario in R. v. A.C., at para. 37:

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 …

[8] As I have noted in earlier rulings on this issue, in R. v. Gervais (2001), , 49 C.R. (5th) 177 (Ont.S.C.J.) A. Campbell J. articulated the traditional perspective on this issue, noting that that the general rule, based upon purely functional considerations, is that the accused should remain in the prisoner’s box. Campbell J. dealt with this issue in the factual context of two accused persons charged with second degree murder. One of the accused, Gervais, was on judicial interim release, while the other accused, Bailey, remained in custody. While Gervais presented no “particular security concern,” Campbell J. nevertheless concluded that his place was “in the regular dock reserved for that purpose.” In reaching this conclusion, Campbell J. outlined, at paras. 12-20, some of the reasons justifying this traditional approach to the position of the accused in the courtroom:

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.

Some of the historic reasons for the dock had to do with the need to distinguish the accused from the others present in court and provide him or her with a clearly assigned place in the same way as the jurors, the judge, the witness, the clerk, and others involved in the trial. Although some cases refer to security as a potentially important factor there is no evidence in this case of any security problem involving Gervais, who is out of custody or Bailey, who is in custody.

In some courtrooms the courtroom and dock configuration and size may make it more suitable for the accused to remain out of the dock. That is not the case here in Sudbury and experience with the large jury courtroom shows that the dock is a perfectly suitable place for the accused.

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.

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.

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.

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 stigmatized 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.

Practical difficulties will arise when judges are subjected to constant motions to decide the position of the accused in individual cases. Further problems will arise if trial judges are drawn into disputes about the security requirements of individual accused involving evidence about the accused or even from the accused, including sensitive prejudicial information which would not ordinarily come to the attention of the trial judge.

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] On earlier occasions, when faced with these types of applications, I have expressed my general agreement with the traditional functional approach articulated by Campbell J. in Gervais. See, for example, R. v. Browne, 2014 ONSC 2519, at paras. 9-10; R. v. McKenzie, 2018 ONSC 2817. Like many judges of this court, and despite some decisions to the contrary, I continue to maintain the view that the Gervais decision expressed the correct approach to this issue.

[10] In my opinion it is highly speculative to simply assume that juries might ignore the presumption of innocence and the 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. Like A.J. O’Marra J. in R. v. Biddersingh, at para. 10, I do “not accept that there is an inherent prejudice” to an accused, from their mere presence in the prisoner’s box, that undermines or erodes the presumption of innocence. I too agree with the following observations of Clark J., in R. v. Zwezdaryk, [2004] O.J. N0. 6137 (S.C.J.), at paras. 19 and 22:

The prisoner’s box has a long tradition in Anglo-Canadian courts. The jury, as intelligent adults, can surely be taken to be aware of that fact. To the extent that any particular juror is unaware of this tradition, logic would compel a person of average intelligence to conclude that the physical appurtenances of the courtroom, including the prisoner's box, were not specially constructed for a particular trial. Having said that, I am of the view that the presence of an accused in the prisoner’s box does not implicitly reflect in a negative way on that particular accused in terms of being either dangerous or more apt to be guilty than any other accused person. Rather, it reflects a well-established norm, no more and no less so than the presence of the judge on a raised dais.

The [defence] argument proceeds from the assumption that there is a prejudice inherent in the mere fact of an accused being seated in the box. There is no evidence before me to support that proposition. Rather, there is simply the bare submission that this is so. It is, in my view, conjectural at best to assume that the jury will be influenced by the fact that the accused is in the prisoner's box: R. v. Gervais ….. In Heyden, McIsaac J. stated that he was “not prepared to act upon the conjectural possibility that the jury will ignore their sworn duty to presume the innocence of the accused despite the fact that they have been charged with this offence and are seated in the dock during the trial.” I agree with that approach. [citations omitted]

[11] It is important to appreciate that juries are invariably given clear and unequivocal instructions, at the very outset of criminal trials, about the central importance of the presumption of innocence and the heavy burden of proof upon the Crown to establish the alleged guilt of the accused beyond a reasonable doubt. These instructions are repeated in the charge to the jury at the end of the case. Juries are also typically instructed that they must draw no adverse inference from the physical location of the accused in the courtroom during the trial. See, for example, R. v. Biddersingh, at para. 21; R. v. Arsoniadis, [2007] O.J. No. 1528, at para. 15. More specifically, in the opening instructions, and again in the charge to the jury at the end of the case, juries are typically instructed along the following lines in relation to the insignificance of the physical location of the accused during the trial:

You may have noticed that the accused is seated in the place in the courtroom that is reserved for accused persons, and where persons accused of crimes regularly sit. He has his place in the courtroom just as you have your place in the jury box, counsel have their place at counsel table, witnesses testify from the witness box, the registrar and the court reporter have their assigned locations, and I have my own assigned seat. Do not make any assumptions or draw any adverse inferences from the fact that the accused is seated in his assigned location in the courtroom. As I have just told you, the accused sits there presumed to be innocent unless and until the Crown satisfies you of his guilt beyond a reasonable doubt.

[12] Our system of criminal justice is premised upon the entrenched and well-justified belief that jurors can, and do, follow the legal instructions of judges as is their duty. See: R. v. Corbett, , [1988] 1 S.C.R. 670, at pp. 692-696; R. v. Vermette, , [1988] 1 S.C.R. 985, at pp. 992-994. This fundamental presumption about the ability of juries to follow legal instructions has as much application in this particular context as any other. As B.P. O’Marra J. concluded, in R. v. C.(G.), at para. 16, after considering the “divergent judicial views” on this same issue and determining that the accused should remain seated in the prisoner’s box:

Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept that the position of the accused in the dock during the trial 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 more complex ones …

[13] Similar sentiments have been expressed in other cases. See R. v. J.A., at para. 13; R. v. Browne, at paras. 14-15; R. v. Barrett, 2017 ONSC 3867, at para. 17. Most recently, in R. v. A.C., in this same factual context, the Court of Appeal for Ontario simply stated that “[t]he jury can be trusted to have followed [the] instruction” of the trial judge not to give “any weight” to the “placement” of the accused in the courtroom.

[14] I note, in passing, that in R. v. McKenzie, 2018 ONSC 2817, the accused was charged with second degree murder, and was ordered to remain in the prisoner’s box during his trial. Yet, ultimately he was acquitted entirely by the jury, who was instructed to ignore his placement in the courtroom, and act upon the foundational principles of the presumption of innocence and the heavy burden of proof upon the Crown. It would seem that the jury in that case was able to follow that simple instruction (as they were legally obliged). I view that real-life Canadian case as a better example of how Canadian juries view the mere presence of an accused in the prisoner’s box, than “social science” conclusions from another country concerning the likely views of “mock jurors,” who actually determine the fate of no one.

[15] None of this is to say that it is never appropriate for an accused to be permitted to sit at counsel table during the course of a criminal trial. As A.J. O’Marra J. noted in R. v. Biddersingh, at para. 10, an order permitting an accused to sit at counsel table may properly be made where the accused can establish that “exceptional circumstances exist necessitating that [the] accused be seated outside the prisoner’s dock” in order to “make full answer and defence” and where there are “no security concerns” about such a seating arrangement. The prisoner’s box is simply the “default placement” of the accused. See also R. v. D.S., at para. 9; Haug v. Dorchester Institution (Warden), 2017 NBCA 55, at paras. 11-12; R. v. A.C., at para. 37.

C. The Present Case

[16] Applying these principles in the factual circumstances of the present case leads me to conclude that the accused should remain seated in the prisoner’s box throughout the trial proceedings in this matter. In my view, there are sound reasons to adhere to the traditional approach in the circumstances of this particular case, and none that commend or justify a divergence from that approach.

[17] The traditional functional reasons for the accused to remain seated in the prisoner’s box apply with full-force in all of the factual circumstances of the present case.

[18] One of the main issues in this case is identification. More specifically, while whoever shot the deceased multiple times from close range is guilty of at least second degree murder, defence counsel contends that the accused was not the person involved in the shooting of the deceased. To the extent that any witnesses may purport to identify or recognize the accused as the person who did the shooting, defence counsel will contend that they are mistaken in their evidence.

[19] In these circumstances, it will be especially important for the jury to be able to see the accused at all times and be able to assess the identification/recognition evidence as measured against the physical appearance of the accused. In light of the configuration of the courtroom where the trial will take place, if the accused remains seated in the prisoner’s box, in the center of the courtroom, the jury should be able to maintain an excellent visual perspective on the accused. If the accused was permitted to sit further forward in the courtroom, however, at one of the counsel tables, the jury’s view of the accused might be periodically compromised, by further distance and by the physical presence of counsel (while they are standing and/or while they are seated). In my view, it is particularly important in this case to keep the accused in a position that will best permit the jury to assess the tendered identification and/or recognition evidence. In short, the accused must remain at “centre stage” in this trial, seated in the centrally located prisoner’s box, just a short distance from the jury box. See R. v. Minoose, 2010 ONSC 6129, at paras. 37-42; R. v. Browne, 2017 ONSC 4615, at paras. 12-16.

[20] There is no reason to believe that, if the accused remains seated in the prisoner’s box, his ability to communicate privately with his two defence lawyers during the trial will be in any way obstructed or inhibited. The distance between the prisoner’s box, where the accused will be seated, and counsel table, where his two lawyers will be sitting, is relatively short. They should have no trouble discretely communicating with each other as they consider appropriate during the trial proceedings. Of course, to the extent that they may need to communicate at greater length, in the absence of the jury, they may do so before and after court, during breaks and lunch, and at other times during the day, virtually upon request. Accordingly, remaining seated in the prisoner’s box will not interfere with the right of the accused to make full answer and defence, by speaking with his lawyers as necessary. Indeed, I have no doubt that the accused will be able to privately speak with counsel as frequently as necessary throughout the trial proceedings.

[21] Finally, security reasons also strongly support the decision to have the accused remain seated in the prisoner’s box during his trial. First, the accused has a significant criminal record, starting in 2012, which displays convictions for a number of offences, including unauthorized possession of a firearm, failing to comply with a recognizance, possession of a controlled substance for the purpose of trafficking, aggravated assault, possession of a firearm or ammunition contrary to a prohibition order, assault with a weapon, failing to attend court, threatening to cause death or bodily harm, and obstructing a peace officer. Significantly, most recently, on December 5, 2022, the accused was convicted of the offence of first degree murder. Second, the accused has a host of institutional misconduct offences at the Toronto South Detention Centre, including multiple counts of threatening an assault, disobeying a lawful order, assaulting another, possession of contraband, and creating or inciting a disturbance likely to endanger the security of the institution. This large body of evidence clearly establishes that there are quite legitimate court security concerns about the accused being permitted to sit anywhere but in the prisoner’s box during the course of his trial.

[22] I note in passing that, in reaching my conclusion that the accused will remain seated in the prisoner’s box during the trial proceedings in this case, I have not taken into account the fact that the accused is now charged, again, with the offence of first degree murder. As Hourigan J.A. observed in R. v. A.C., at para. 38, the “seriousness of the offence” is simply not a relevant factor in determining the appropriate seating location of the accused for his or her criminal trial, as the nature of the alleged offence “says nothing about security concerns or the interests of a fair trial.”

D. Conclusion

[23] In the result, as I have already advised the parties, the application to permit the accused to be seated at counsel table is dismissed. The accused shall remain in the prisoner’s box during the course of the trial proceedings in this matter.

Kenneth L. Campbell J. Released: March 24, 2023

COURT FILE NO.: CR-21-1-261 DATE: 20230324 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING - and - SAAID MOHIADIN

PRE-TRIAL RULING On Application to Permit the Accused to be Seated at Counsel Table K.L. Campbell J.

Released: March 24, 2023