Sitting Position of the Accused at Trial: Difference between revisions
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[[Fr:Position_assise_de_l'accusé_au_procès]]{{Currency2|January|2018}} | |||
{{LevelOne}}{{HeaderTrials}} | {{LevelOne}}{{HeaderTrials}} | ||
==General Principles== | ==General Principles== | ||
{{seealso|Accused in Court}} | {{seealso|Accused in Court}} | ||
The Criminal Code is silent on the issue of 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.<ref> | 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.<ref> | ||
{{CanLIIRP|Levogiannis|1frxq|1993 CanLII 47 (SCC)|[1993] 4 SCR 475}}{{perSCC|L'Heureux‑Dubé J}}{{atL|1frxq|53}}<br> | |||
{{CanLIIRP|Lalande|1f9np|1999 CanLII 2388 (ON CA)|, [1999] OJ No 3267}}{{perONCA|Borins JA}}{{atL|1f9np|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")<br> | |||
{{CanLIIRx|Rafferty|fr9w8|2012 ONSC 1009 (CanLII)}}{{perONSC|Heeney J}}{{atL|fr9w8|3}}<br> | |||
</ref> | </ref> | ||
Custom dictates that the accused is to be placed in the dock.<ref> | Custom dictates that the accused is to be placed in the dock.<ref> | ||
{{CanLIIRx|Ahmad et al.|2bxvv|2010 ONSC 1777 (CanLII)}}{{perONSC|Dawson J}}{{atL|2bxvv|4}}<br> | |||
{{CanLIIRP|Gervais|1wd19|2001 CanLII 28428 (ON SC)|49 CR (5th) 177}}{{perONSC|Campbell J}}</ref> | |||
This expectation does not violate the accused’s Charter rights.< | This expectation does not violate the accused’s Charter rights.<ref> | ||
Gervais{{ | {{ibid1|Gervais}}{{atL|1wd19|8}}</ref> | ||
; Visibility of Accused | |||
The trier of fact should be able to see the accused during the trial.<ref> | The trier of fact should be able to see the accused during the trial.<ref> | ||
{{CanLIIRP|Sinclair|2f86h|2010 ONSC 7253 (CanLII)|OJ No 5749}}{{perONSC|O’Marra J}}<br> | |||
Rafferty{{ | {{supra1|Rafferty}}{{atL|fr9w8|13}}</ref> | ||
This interest may prevent the accused from requesting a seat at counsel table to give instructions.<ref> | This interest may prevent the accused from requesting a seat at the counsel table to give instructions.<ref> | ||
{{CanLIIRx|McCarthy|fqfjl|2012 CanLII 10661 (NLSCTD)}}{{perNLSC| Goodridge J}} [refused request to sit at counsel table]</ref> | |||
; 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.<ref> | 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 the counsel table.<ref> | ||
{{supra1|Gervais}}<br> | |||
Ahmad{{ | {{supra1|Ahmad}}{{atL|2bxvv|4}}<br> | ||
{{CanLIIRx|Vickerson|1mgzp|2006 CanLII 2409 (ONSC)}}{{perONSC|DiTomaso J}}{{atL|1mgzp|18}}</ref> | |||
It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."<ref> | It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."<ref> | ||
see | see {{CanLIIRP|Grandinetti|4pvr|2003 ABCA 307 (CanLII)|178 CCC (3d) 449}}{{perABCA|per McFadyen JA}}{{atL|4pvr|84}}<br> | ||
{{CanLIIRx|Badhwar|23jrr|2009 CanLII 23890 (ON SC)}}{{perONSC|McIsaac J}}<br> | |||
</ref> | </ref> | ||
The second line of cases | 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."<ref> | ||
Ahmad{{ | {{supra1|Ahmad}}{{atL|2bxvv|5}}<br> | ||
{{CanLIIRP|Smith|1rwtw|2007 CanLII 24094 (ONSC)|[2007] OJ No 2579 (SCJ)}}{{perONSC|Trafford J}}<br> | |||
{{CanLIIRP|Ramanathan|2cz5q|2009 CanLII 86223 (ONSC)|, [2009] OJ No 6233 (ONSC)}}{{perONSC|Corbett J}}<br> | |||
</ref> | </ref> | ||
When considering the sitting position the court should | When considering the sitting position, the court should consider the fairness of differential treatment between a person in custody and those released from custody.<ref> | ||
Ahmad{{ | {{supra1|Ahmad}}{{atL|2bxvv|7}}<br> | ||
Gervais{{ | {{supra1|Gervais}}{{atL|1wd19|16}}<br> | ||
</ref> | </ref> | ||
; 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.<ref> | 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.<ref> | ||
Gervais{{ | {{supra1|Gervais}}{{atL|1wd19|8}}<br> | ||
Vickerson{{ | {{supra1|Vickerson}}{{atL|1mgzp|15}} - no violation of presumption of innocence<br> | ||
{{supra1|Sinclair}}<br> | |||
{{CanLIIRx|JA|h306w|2017 ONSC 2043 (CanLII)}}{{perONSC|O'Marra J}}{{atL|h306w|13}}<br> | |||
</ref> | </ref> | ||
| Line 52: | Line 55: | ||
==Accused in Custody== | ==Accused in Custody== | ||
An accused is custody should remain in the dock unless there are "exceptional circumstances", such as | 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" | "the length of the trial and the defendant's necessities, such as note taking."<ref> | ||
{{CanLIIRP|Minoose|2d985|2010 ONSC 6129 (CanLII)|[2010] OJ No 4830}}{{perONSC|Kane J}}{{atL|2d985|32}}<br> | |||
</ref> | </ref> | ||
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.<ref> | 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.<ref> | ||
{{CanLIIRx|Spagnoli and Shore|fmjc9|2011 ONSC 4656 (CanLII)}}{{perONSC|Hambly J}}{{AtL|fmjc9|7}}<br> | |||
Minoose{{ | {{supra1|Minoose}}{{atL|2d985|33}}<br> | ||
Rafferty{{ | {{supra1|Rafferty}}{{atL|fr9w8|11}}</ref> | ||
{{Reflist|2}} | {{Reflist|2}} | ||
==Sitting with Counsel== | ==Sitting with Counsel== | ||
Recommendations from the Morin Inquiry suggested that the accused be permitted to sit with counsel absent risk of danger.<ref> | Recommendations from the Morin Inquiry suggested that the accused be permitted to sit with counsel absent risk of danger.<ref> | ||
see referenced in | see referenced in {{CanLIIRP|MT|257k5|2009 CanLII 43426 (ONSC)|84 WCB (2d) 644}}{{perONSC|Nordheimer J}}<Br> | ||
</ref> | </ref> | ||
The sitting location of the accused is entirely in the discretion of the trial judge.<ref> | The sitting location of the accused is entirely in the discretion of the trial judge.<ref> | ||
{{CanLIIRx|JA|h306w|2017 ONSC 2043 (CanLII)}}{{perONSC|O'Marra J}}{{atL|h306w|4}}<br> | |||
</ref> | </ref> | ||
This discretion should not be interfered with unless it affects the right to full answer and defence.<ref> | This discretion should not be interfered with unless it affects the right to full answer and defence.<ref> | ||
JA{{ | {{ibid1|JA}}{{atL|h306w|4}}<br> | ||
{{CanLIIRP|Levogiannis|1frxq|1993 CanLII 47 (SCC)|[1993] 4 SCR 475}}{{perSCC|L'Heureux‑Dubé J}}{{atL|1frxq|34}}<br> | |||
{{CanLIIRP|Faid|fp6fk|1981 ABCA 139 (CanLII)|61 CCC (2d) 28}}{{perABCA|Harradence JA}}{{atp|40}}<br> | |||
</ref> | </ref> | ||
; Need to Consult with Counsel | |||
The importance of the accused to be able to consult with counsel is not | 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.<ref> | ||
{{CanLIIRx|Arsoniadis|1r8cz|2007 CanLII 13505 (ONSC)}}{{perONSC|Sproat J}}<br> | |||
</ref> | </ref> | ||
; Weapons | |||
There should be consideration of the risks involved with the accused bringing weapons and potentially attacking persons in court.<ref> | There should be consideration of the risks involved with the accused bringing weapons and potentially attacking persons in court.<ref> | ||
e.g. | e.g. {{CanLIIRx|Lehoux|24j8c|1997 CanLII 14559 (BC CA)}}{{perBCCA|Donald JA}} - accused obsessed with family court result attacks lawyer with weapon</ref> | ||
; Burden | |||
The onus is on the accused to establish that he should be permitted to sit at counsel table.<ref> | The onus is on the accused to establish that he should be permitted to sit at the counsel table.<ref> | ||
{{CanLIIRx|Davis|fp125|2011 ONSC 5567 (CanLII)}}{{perONSC| van Rensburg J}}{{atL|fp125|11}}<br> | |||
</ref> | </ref> | ||
; Factors | |||
Factors have been suggested to determine whether to grant the request:<ref> | Factors have been suggested to determine whether to grant the request:<ref> | ||
Minoose{{ | {{supra1|Minoose}}{{atL|2d985|32}}<br> | ||
see also | see also {{CanLIIRP|GC|fxj2l|2013 ONSC 2904 (CanLII)|OJ No 2279}}{{perONSC|O'Marra J}} | ||
</ref> | </ref> | ||
* the defendant's rights to a fair trial, to make full answer and defence, including the right to instruct counsel and courtroom security; | * the defendant's rights to a fair trial, to make full answer and defence, including the right to instruct counsel and courtroom security; | ||
| Line 100: | Line 103: | ||
* whether visibility by the jury is affected | * whether visibility by the jury is affected | ||
Security concerns | Security concerns include the safety of having the accused flanked by Sheriffs at the counsel table instead of the dock. <ref> | ||
e.g. | e.g. {{supra1|Rafferty}}</ref> | ||
The court can consider the likelihood that constant communication between counsel and accused may distract the jury.<ref> | The court can consider the likelihood that constant communication between counsel and the accused may distract the jury.<ref> | ||
Arsoniadis | {{supra1|Arsoniadis}}{{atL|1r8cz|11}}<br> | ||
{{CanLIIRx|McCarthy|fqfjl|2012 CanLII 10661 (NLSCTD)}}{{perNLSC| Goodridge J}}{{atL|fqfjl|6}}<br> | |||
</ref> | </ref> | ||
Where it is not practical to | Where it is not practical to use the counsel table for the seating of the accused, it can be a compromise to set up a table in between the dock and the defence counsel table.<ref> | ||
e.g. | e.g. {{CanLIIRP|Turner|2dxcs|2000 CanLII 28390 (NLSCTD)|, [2000] NJ No 379}}{{perNLSC|Dymond J}} | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
Latest revision as of 13:02, 24 July 2024
| This page was last substantively updated or reviewed January 2018. (Rev. # 95915) |
General Principles
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 the 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 the 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 consider 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]
- ↑
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
- ↑
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 - ↑ Gervais, ibid., at para 8
- ↑
R v Sinclair, 2010 ONSC 7253 (CanLII), OJ No 5749, per O’Marra J
Rafferty, supra, at para 13 - ↑ R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J [refused request to sit at counsel table]
- ↑
Gervais, supra
Ahmad, supra, at para 4
R v Vickerson, 2006 CanLII 2409 (ONSC), per DiTomaso J, at para 18 - ↑
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
- ↑
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
- ↑
Ahmad, supra, at para 7
Gervais, supra, at para 16
- ↑
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]
- ↑
R v Minoose, 2010 ONSC 6129 (CanLII), [2010] OJ No 4830, per Kane J, at para 32
- ↑
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 the 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 include the safety of having the accused flanked by Sheriffs at the counsel table instead of the dock. [8]
The court can consider the likelihood that constant communication between counsel and the accused may distract the jury.[9]
Where it is not practical to use the counsel table for the seating of the accused, it can be a compromise to set up a table in between the dock and the defence counsel table.[10]
- ↑
see referenced in R v MT, 2009 CanLII 43426 (ONSC), 84 WCB (2d) 644, per Nordheimer J
- ↑
R v JA, 2017 ONSC 2043 (CanLII), per O'Marra J, at para 4
- ↑
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
- ↑
R v Arsoniadis, 2007 CanLII 13505 (ONSC), per Sproat J
- ↑ e.g. R v Lehoux, 1997 CanLII 14559 (BC CA), per Donald JA - accused obsessed with family court result attacks lawyer with weapon
- ↑
R v Davis, 2011 ONSC 5567 (CanLII), per van Rensburg J, at para 11
- ↑
Minoose, supra, at para 32
see also R v GC, 2013 ONSC 2904 (CanLII), OJ No 2279, per O'Marra J - ↑ e.g. Rafferty, supra
- ↑
Arsoniadis, supra, at para 11
R v McCarthy, 2012 CanLII 10661 (NLSCTD), per Goodridge J, at para 6
- ↑ e.g. R v Turner, 2000 CanLII 28390 (NLSCTD), , [2000] NJ No 379, per Dymond J