Court File and Parties

COURT FILE NO.: CR-22-8636 DATE: 2024-09-27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING Respondent – and – Montana Lewis Applicant

Counsel: H. Mitchell / M. Caputo, for the Crown J. Shime / B. ElzingaCheng, for the Applicant

HEARD: September 23, 2024

Ruling on Application to Have Accused Sit at Counsel Table

Stothart J.

[1] The applicant, Montana Lewis, is charged with one count of first-degree murder. His trial is scheduled to commence November 18, 2024, and continue for approximately three weeks. The trial is expected to take place in courtroom 1 at the Sault Ste. Marie Courthouse.

[2] The applicant brings this application to allow him to sit at counsel table. He submits that having to sit in the prisoner’s dock undermines his presumption of innocence and imperils his fair trial rights. He relies on the findings in the Report of the Commission on Proceedings Involving Guy Paul Morin (Toronto: Queen’s Printer for Ontario, 1998), wherein Justice Kaufman recommended that:

Absent the existence of a proven security risk, a person charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than the prisoner’s dock.

[3] The applicant submits that as an Indigenous person, he already faces prejudice in society at large and in the criminal justice system. Having him sit at counsel table helps offset those prejudices.

[4] The applicant acknowledges that ultimately it is within the court’s discretion to determine where the accused will sit during his/her trial. He submits that in this case there are no security concerns surrounding his sitting at counsel table, identification is not in issue at trial, and sitting next to counsel will assist him with his ability to communicate with counsel.

[5] The Crown submits that it is customary that the accused sit in the prisoner’s dock. The Crown submits that the accused should be at “centre stage” in the prisoner’s box which is centrally located in the courtroom. The Crown submits that the prisoner’s dock in courtroom 1 provides the best vantage point for the applicant to view witnesses and evidence and allows the jury to observe the applicant throughout the trial.

[6] The Crown submits that having the applicant sit in the prisoner’s dock does not violate his Charter rights and any potential prejudice from this placement can be addressed by way of a standard jury instruction which instructs the jury that everyone in the courtroom has a traditional and individual place, including the judge, the jurors, and the accused. The trial judge can instruct the jury that they are not to infer anything from the fact that the accused sits in the prisoner’s dock, and that he remains presumed innocent at all times.

[7] The Crown agrees that where the accused sits is something that is ultimately within the discretion of the trial judge, having regard to the factual circumstances in each case. It involves a balancing of the fair rights of the accused and other factors that include court security and the legal issues at play.

Analysis

[8] While the default placement of an accused on trial is in the prisoner’s box, there is no presumption in this regard. The issue is to be assessed on a case-by-case basis having regard to the interests of a fair trial, the accused’s ability to make full answer and defence, any courtroom security concerns, and any other particular circumstances in the case: R v. A.C., 2018 ONCA 333 at para. 37.

[9] In this case it is agreed that there are no security concerns with having the accused sit next to his counsel at counsel table. It is further agreed that sitting at counsel table will allow the accused to communicate with his counsel with greater ease.

[10] Courtroom 1 at the Sault Ste. Marie courthouse is a large traditional style courtroom. The prisoner’s dock is situated behind counsel table in the front/middle portion of the courtroom. The dock itself is raised higher than counsel table and an accused person would not be able to reach out and touch counsel from the prisoner’s dock.

[11] Based on the positioning of the prisoner’s dock, if an issue arose during the trial and the accused wished to communicate with his counsel, he would have to find a way to capture his lawyers’ attention, potentially disrupting the trial. Having the accused sit at counsel table would provide greater ease in communication between the accused and his counsel.

[12] While there are computer screens on counsel table, I am satisfied that the jury will be able to see the accused and the accused will be able to see the jury if he sits at counsel table.

[13] When I balance the factors that arise in this case, including the fact that there are no security concerns, identity is not in issue, the need for the accused to communicate with his counsel during the trial, and the need to ensure a fair trial in accordance with the presumption of innocence, I am satisfied that it is appropriate that the applicant sit at counsel table during the duration of his trial.

[14] I wish to make it clear that if issues arise during the trial that make it appropriate to re-visit this issue, the matter will remain within the discretion of the trial judge.

[15] I am also making no comment with respect to appropriate security measures and leave those in the capable hands of court security. Those issues were not raised before me.

[16] For these reasons, the application is allowed, and I order that the applicant be permitted to sit at counsel table during his trial.

The Honourable Madam Justice S.K. Stothart Released: September 27, 2024