Should the Accused be Permitted to Sit with Counsel During His/Her Trial? (Part 2)

In my last blog entry, I looked at why the accused should be permitted to sit at counsel table during his/her trial.  In this blog, I look at the other side of the issue and provide some justifications as to why the accused ought to remain in his/her customary and designated location, the dock (also known as the prisoner’s box, defendant’s box, et. al).

Note: counsel table or the dock are not the only locations for an accused during trial.  On occasion, courts have ordered that the defendant remain seated outside the defendant’s box but behind defence counsel

Dispelling Stigma through a Direction to the Jury 

One of the strongest arguments for taking the accused out of the prisoner dock is that sitting in the box connotes to the jury an aura or stigma contrary to the presumption of innocence.  Though, some courts have taken the position that the accused is no more stigmatised in the dock than is the jury in the jury box or the witness in the witness box.

If counsel feel that the position of the accused in the courtroom might prejudice the jury, counsel can ask the judge for an appropriate direction. Some judges as a matter of course direct the jury that everyone in the courtroom has their traditional and individual place, including the judge and the jurors and the accused, that the accused like the judge and the jurors sits in the place traditionally reserved for him, and the jury cannot take that against the accused who is presumed innocent.

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

R. v. Browne, 2017 ONSC 4615, at para. 14.

The Design and Structure of the Particular Dock 

In some courtrooms, the dock is not significantly dissimilar in its physical configuration from the jury box and witness box. Arguably, there would be little or no stigma associated with the presence of an accused person in the dock so long as the jury receives a proper instruction.

In other courtrooms, the dock is configured quite differently, for instance, enclosed in part by a glass perimeter, sometimes seven or so feet high.   It communicates to the objective observer at least the possibility that the occupant of that dock is in custody.  The design and structure of such a box carries with it a stigma and that stigma might reasonably be expected to influence the deliberations of the jury.

R. v. Tavares, 2015 ONSC 2792 (CanLII), at paras. 15, 17.

Effective Communication Does Not Require Immediate Proximity

Another strong argument for having the accused outside the box is that the accused’s right to full answer and defence is enhanced by being able to sit beside counsel and instruct counsel immediately as trial matters unfold.

The reality is that well-meaning clients at times cannot help themselves from interrupting counsel, and seldom are the interruptions helpful.

Nonetheless, diligent counsel must always be alert to the prospect that a communication from the accused made during the flow of trial may be timely and important, and counsel must be in a position to receive and act on communication from his client during a trial.

However, an accused need not be physically beside his/her lawyer for this to occur. 

A number of practical solutions are available.  For instance, in R. v. Minoose, 2010 ONSC 6129 (CanLII ), the trial judge facilitated communication between the lawyer and the accused by ensuring the accused was provided with pencil and paper, and by requiring that the special constables within the courtroom pass the accused’s notes to defence counsel as presented to them.  Further, the trial judge was amenable to a reasonable number of short adjournments during the trial if defence counsel needed to discuss a recent note from the defendant.  

Certainly, there will be circumstances where the presence of the accused in the dock manifestly precludes him from making full answer and defence, eg. a defendant with a hearing impairment, complex document cases and self-represented individuals. But such circumstances will be exceptional and can be addressed on a case-by-case basis.

The Need for the Trier of Fact to Observe the Accused Throughout the Trial

For some judges, ensuring visibility of the defendant by the jury is an important consideration, which may require the accused remaining in the prisoner box. However, in my opinion, given the frailties of demeanour evidence, some judges overstate the importance of this consideration. 

In many courtrooms used for jury trials, the prisoner’s box in the middle of the courtroom set back from counsel table.  This allows the jury an unobstructed view of the accused throughout the course of trial proceedings.

Security Issues

The risk that drugs or weapons or implements such as pens can be transmitted back to the custodial institution greatly increases when in-custody persons are outside the dock.

Further, situating the accused at counsel table may require situating security officers to sit close to the jury. The jury may very well wonder why there is so much security around each of the tables and in close proximity to them.

If trial judges are required to hear evidence on the security risk an accused may pose in court, sensitive prejudicial information about the accused may come to the attention of the judge, where it otherwise would not: R. v. Gervais, 2001 CanLII 28428 (ON SC).

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