COURT FILE NO.: CR-21-10000515
DATE: 20230203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DAMIEN WARD ALLRED
COUNSEL:
M. Cantlon, A. Tenhouse and A. Serban, for the Crown
A. Furguiele and C. Barbisan, for Mr. Allred
HEARD: 24-25 October 2022
S.A.Q. AKHTAR J.
RULING ON APPLICATION TO BE SEATED AT COUNSEL TABLE
[1] Damien Allred stands charged with the second degree murder of Teresa Santos, a 75-year-old woman who lived on the same floor of the apartment building in which he resided, situated at 24 Shaw Street in Toronto.
[2] Ms. Santos was found dead in her apartment on 11 August 2020 after not being seen for approximately four days. In seeking to prove that Mr. Allred committed the offence, the Crown relies upon circumstantial evidence including DNA evidence found under Ms. Santos’ right fingernails, bloodied footprints leading to Mr. Allred’s unit, and post offence conduct, including the alleged disposal of clothing and keys.
[3] Mr. Allred has been in custody pending trial of these offences. He requests that he be allowed to sit at the counsel table during the course of the trial.
[4] It is well established that the placement of an accused in the courtroom during their trial is a matter that remains within the discretion of the trial judge: R. v. Lalande (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441, (Ont. C.A.) at para. 19; R. v. A.C., 2018 ONCA 333 at para. 37. Although the default placement of an accused is in the dock, there is no presumption that they must be seated there. What is important is that an accused’s placement must permit them to make full answer and defence: A.C., at para. 37.
[5] As has been noted in the jurisprudence, there is disagreement amongst jurists about the results of such applications.
[6] Some judges have granted the application for an accused to be seated at counsel table: R. v. S.(S)., [1997] O.J. No. 250 (S.C.J.); 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. Ramanatham, [2009] O.J. No. 6233 (S.C.J.).
[7] Others have taken the opposite view: 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), 1999 15065 (ON SC), 30 C.R. (5th) 342 (O.S.C.); R. v. Vickerson, [2006] O.J. No. 351 (S.C.J.); R. v. Spagnoli, 2011 ONSC 4656; R. v. C. (G.), 2013 ONSC 2904; R. v. Browne, 2014 ONSC 2519; R. v. McKenzie, 2018 ONSC 2817.
[8] The decisions to have an accused seated in the dock follow the decision of Campbell J. in R. v. Gervais, 2001 28428 (ON SC), [2001] O.J. No. 4942, where, at para. 8, he determined the jurisprudence showed that:
The customary position of the accused in the courtroom is in the dock
The trial judge has discretion as to the position of the accused in the courtroom in individual cases
The presence of the accused in the dock does not violate his or her Charter rights.
[9] Campbell J. held that there might be exceptional circumstances where the presence of an accused in the dock “manifestly precludes him from making full answer and defence” citing the example of a hearing-impaired accused who would find it hard to hear proceedings if seated in the dock.
[10] At para. 12, Campbell J. concluded that “[e]veryone 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.”
[11] The defence rely on the recent decision of this court of R. v. Douse, 2022 ONSC 3163, where Schreck J. departed from the Gervais reasoning and found that an accused’s fair trial interests would be compromised by being compelled to remain in the dock. Schreck J. found the dock created a stigma of guilt, it acted as a form of restraint, and that social science evidence suggested the use of the dock had a prejudicial effect.
[12] With great respect, and for the following reasons, I prefer the Gervais line of cases.
[13] First, like the court in R. v. Heyden, I disagree with the assertion that the dock is a form of restraint. An in-custody accused who would sit at counsel table would be also confined to that area and could not move freely and therefore be subject to the same form of “restraint”.
[14] Secondly, I find the location of an accused does not create a stigma or any other form of prejudice that infringes the presumption of innocence. I conclude, as did Campbell J., that the dock is a designated seating area customarily reserved for the accused, just as the Crown is customarily seated next to the jury. Most judges at the outset of a trial will refer to the locations of the Crown, defence, and an accused person in the courtroom so that the jury will be able to identify the various participants in a trial: Gervais, at paras. 12, 15; Heyden, at para. 3. The accused’s location is no more prejudicial than, for example, the fact that the defence counsel sits further away from the jury than the Crown. I note that my colleague O’Marra J. in R. v. A. (J.), 2017 ONSC 2043, addressed the deficiencies in the social science evidence advanced in that case.
[15] Thirdly, as acknowledged in the jurisprudence, juries are told, from the outset, and reminded during the course of the trial, of the presumption of innocence. Those instructions, along with the comments made about each party’s special location in the courtroom are sufficient to dispel any notion of prejudice.
[16] I echo the words of my colleague, O’Marra J. from his decision in A.(J). at para. 13 where he noted that:
Juries are instructed early and often about the presumption of innocence and the burden of proof in criminal cases. I do not accept the notion that the position of the accused in the dock 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 important instructions related to limited use of certain evidence […]
[17] As pointed out by K. Campbell J. in R. v. Browne at para. 14, (relying on R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-696; R. v. Vermette, 1988 87 (SCC), [1988] 1 S.C.R. 985, at pp. 992-994) “[o]ur 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.”
[18] Fourthly, although I agree that security reasons may provide cause to keep an accused in the dock, there is no requirement that the Crown prove that a specific security issue exists: Vickerson, at para. 18. There are always inherent security concerns when an accused person is permitted to sit at counsel table. Depending on the layout of the physical courtroom, more than one court officer would be required to be positioned around the courtroom and proximate to the accused to properly observe them at all times and ensure they do not attempt to flee the court or otherwise threaten the security of the courtroom. Situating numerous officers in around the vicinity of an accused, to my mind, is far more prejudicial than having them remain within the dock. That would certainly apply in this case.
[19] Finally, and most importantly, an accused must be able to be visible to all members of the jury during the trial. As Campbell J. in Gervais, at para. 15, observed: “[t]he 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”.
[20] This is not because the purpose is that the jury can see an accused’s reaction to the evidence, but that they are reminded throughout the proceedings that it is the accused’s trial. They are the person, presumed innocent, who is facing the prospect of being convicted and have the most to lose. The jury must never forget that point and remain focussed on it.
[21] In this case, the physical layout of the courtroom would prevent that. If the accused sat at counsel table, the entire jury would be unable to observe him given the fact that he would be either fully or partially obscured by courtroom equipment, lecterns, and counsel. The dock is slightly elevated and in the centre of the courtroom fully within the jury’s sightline.
[22] For these reasons, the application for Mr. Allred to sit at counsel table is denied.
S.A.Q. Akhtar J.
Released: 3 February 2023
COURT FILE NO.: CR-21-10000515
DATE: 20230203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DAMIEN WARD ALLRED
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.