Sitting Position of the Accused at Trial

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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.

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

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

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. It has further been suggested that the presumption should prevail unless "a miscarriage of justice has been established."

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."

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.

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.

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".

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.

Sitting with Counsel

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

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

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.

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

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

Factors
Factors have been suggested to determine whether to grant the request:

• 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.

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

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.