Should the Accused Be Permitted to Sit with Counsel During His/Her Trial? (Part 1)

At the beginning of a trial, defence counsel may bring an application to have the accused sit at the table with his counsel.   

The customary position is that the accused in the courtroom remain in the dock/prisoner box.

R. v. Gervais, 2001 CanLII 28428 (ON SC).

The prisoner’s dock is traditionally an uncomfortable narrow wooden bench with no place to write or place pen and paper.

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. Levogiannis (1993), 1993 CanLII 47 (SCC), 85 C.C.C. (3d) 327 (S.C.C).

Each case must be examined on its own merits.

R v Power, 1992 CanLII 7110 (NL CA), at para. 20.

As the Supreme Court of Newfoundland and Labrador (Court of Appeal) has opined:  the prisoner’s dock is a form of restraint. 

One might contemplate that the use of the prisoner's dock may eventually disappear completely except when it or some other facility may be necessary in the public interest for the protection of persons involved in criminal prosecutions and, in certain cases, for the security of the prisoner.

 R v Power, 1992 CanLII 7110 (NL CA), in obiter.

Custom is a poor rationale for perpetuating a state of affairs that may carry with it problematic, if unintentional, consequences. The argument in Gervais that it is “customary” for the accused to be in the prisoners’ box is unpersuasive.  We are now cognizant that there may be legitimate concerns regarding potential, if subtle, impacts inherent in that custom.  

R. v. M.T., 2009 CanLII 43426(ON SC)

The presence of the accused in the dock does not violate his Charter Rights. 

R. v. Gervais, 2001 CanLII 28428 (ON SC),

The position of the accused in the dock represents an environment which does not reflect the fact that the accused “really is innocent until proven guilty beyond a reasonable doubt”.

See The Honourable Mr. F. Kaufman, Report of the Commission on Proceedings Involving Guy Paul Morin (Commentary to Recommendation 83):  absent the existence of a proven security risk, persons charged with a criminal offence should be entitled, at their option, to be seated with their counsel, rather than in the defendant’s dock.   

The presence of the accused person in the prisoner’s box, isolated from all of the other participants in the trial process, may serve as a constant and implicit suggestion of guilt (as well as underscore to the jury that there is a live risk that the accused will act in a transgressive and violent manner).  Indeed, it would appear to be that such concerns have led the United States to essentially abandon the use of prisoners’ boxes in criminal trials. 

As was noted by the United States First Circuit Court of Appeals in Walker v. Butterworth 599 F.2d 1074 (1979):

The practice of isolating the accused in a four foot high box very well may affect a juror's objectivity.  Confinement in a prisoner dock prisoner dock focuses attention on the accused and may create the impression that he is somehow different or dangerous.  By treating the accused in this distinctive manner, a juror may be influenced throughout the trial.  The impression created may well erode the presumption of innocence that every person is to enjoy.

In my next blog entry, I will discuss the other side of this issue, and advance at least some justifications for having the accused remain in the dock during his/her trial.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca