Sitting Position of the Accused at Trial

From Criminal Law Notebook

General Principles

See also: Accused in Court

The Criminal Code is silent on the issue of the sitting position of the accused. It is understood at common law that the sitting arrangement of the accused in the court is in the sole discretion of the trial judge.[1]

Custom dictates that the accused is to be placed in the dock.[2] This expectation does not violate the accused’s Charter rights.[3]

Visibility of Accused

The trier of fact should be able to see the accused during the trial.[4] This interest may prevent the accused from requesting a seat at counsel table to give instructions.[5]

Two Lines of Authority

The primary line of cases suggests that the accused should be placed in the dock unless the accused can establish "sound reason" to allow the accused to sit at counsel table.[6] It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."[7]

The second line of cases suggests that the accused should be permitted to sit outside the dock "unless security considerations...[are] demonstrated to be necessary, or at least advisable, to ensure the safety of all involved."[8]

When considering the sitting position the court should take into account the fairness of differential treatment between a person in custody and those released from custody.[9]

Constitutionality

The requirement to sit in the "prisoner's" dock does not violate the accused's charter rights, including the right to the presumption of innocence.[10]

  1. R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 53
    R v Lalande, 1999 CanLII 2388 (ON CA), , [1999] OJ No 3267, per Borins JA, at para 19("Where an accused person 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")
    R v Rafferty, 2012 ONSC 1009 (CanLII), per Heeney J, at para 3
  2. R v Ahmad et al., 2010 ONSC 1777 (CanLII), per Dawson J, at para 4
    R v Gervais, 2001 CanLII 28428 (ON SC), 49 CR (5th) 177, per Campbell J
  3. Gervais, ibid., at para 8
  4. R v Sinclair, 2010 ONSC 7253 (CanLII), OJ No 5749, per O’Marra J
    Rafferty, supra, at para 13
  5. R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J [refused request to sit at counsel table]
  6. Gervais, supra
    Ahmad, supra, at para 4
    R v Vickerson, 2006 CanLII 2409 (ONSC), per DiTomaso J, at para 18
  7. see R v Grandinetti, 2003 ABCA 307 (CanLII), 178 CCC (3d) 449, per per McFadyen JA, at para 84
    R v Badhwar, 2009 CanLII 23890 (ON SC), per McIsaac J
  8. Ahmad, supra, at para 5
    R v Smith, 2007 CanLII 24094 (ONSC), [2007] OJ No 2579 (SCJ), per Trafford J
    R v Ramanathan, 2009 CanLII 86223 (ONSC), , [2009] OJ No 6233 (ONSC), per Corbett J
  9. Ahmad, supra, at para 7
    Gervais, supra, at para 16
  10. Gervais, supra, at para 8
    Vickerson, supra, at para 15 - no violation of presumption of innocence
    Sinclair, supra
    R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 13

Accused in Custody

An accused is custody should remain in the dock unless there are "exceptional circumstances", such as "the length of the trial and the defendant's necessities, such as note taking".[1]

While generally not considered prejudicial, in certain cases, trial fairness should warrant a jury instruction to not draw any inference from the accused's presence in the "prisoner's" dock or the presence of sheriffs flanking the accused.[2]

  1. R v Minoose, 2010 ONSC 6129 (CanLII), [2010] OJ No 4830, per Kane J, at para 32
  2. R v Spagnoli and Shore, 2011 ONSC 4656 (CanLII), per Hambly J, at para 7
    Minoose, supra, at para 33
    Rafferty, supra, at para 11

Sitting with Counsel

Recommendations from the Morin Inquiry suggested that the accused be permitted to sit with counsel absent risk of danger.[1]

The sitting location of the accused is entirely in the discretion of the trial judge.[2] This discretion should not be interfered with unless it affects the right to full answer and defence.[3]

Need to Consult with Counsel

The importance of the accused to be able to consult with counsel is not an important factor where the court may have a recess for the purpose of consultation.[4]

Weapons

There should be consideration of the risks involved with the accused bringing weapons and potentially attacking persons in court.[5]

Burden

The onus is on the accused to establish that he should be permitted to sit at counsel table.[6]

Factors

Factors have been suggested to determine whether to grant the request:[7]

  • the defendant's rights to a fair trial, to make full answer and defence, including the right to instruct counsel and courtroom security;
  • whether the defendant is in custody
  • whether there are security risks in sitting with counsel; and
  • whether visibility by the jury is affected

Security concerns such as the safety of having the accused flanked by Sheriffs at counsel table as opposed to the dock. [8]

The court can consider the likelihood that constant communication between counsel and accused may distract the jury.[9]

Where it is not practical to consider counsel table for seating of accused, it can be a compromise to set-up a table in between the dock and defence counsel table.[10]

  1. see referenced in R v MT, 2009 CanLII 43426 (ONSC), 84 WCB (2d) 644, per Nordheimer J
  2. R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 4
  3. JA, ibid., at para 4
    R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux‑Dubé J, at para 34
    R v Faid, 1981 ABCA 139 (CanLII), 61 CCC (2d) 28, per Harradence JA, at p. 40
  4. R v Arsoniadis, 2007 CanLII 13505 (ONSC), per Sproat J
  5. e.g. R v Lehoux, 1997 CanLII 14559 (BC CA), per Donald JA - accused obsessed with family court result attacks lawyer with weapon
  6. R v Davis, 2011 ONSC 5567 (CanLII), per van Rensburg J, at para 11
  7. Minoose, supra, at para 32
    see also R v GC, 2013 ONSC 2904 (CanLII), OJ No 2279, per O'Marra J
  8. e.g. Rafferty, supra
  9. Arsoniadis, supra, at para 11
    R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J, at para 6
  10. e.g. R v Turner, 2000 CanLII 28390 (NLSCTD), , [2000] NJ No 379, per Dymond J