R v. BADHWAR, 2009 CanLII23890 – (SCJ – McISAAC)

[1] This is an application to permit Mr. Badhwar to sit at counsel table during his jury trial which counsel estimate will last, at the outside, four weeks. The Crown conceded he poses neither a flight or security risk and he has been on bail since August 31, 2007. He faces charges of criminal negligence causing death by street racing and failure to stop at the scene of an accident both contrary to the Criminal Code of Canada.

[2] The applicant suggests that his placement in the traditional dock violates the presumption of innocence and compromises his right to a fair trial. He places significant reliance on Recommendation 83 from the Kaufman Inquiry. In addition, he emphasizes the fact that his placement in the dock will interfere with his ability to consult and instruct counsel. On the other hand, the Crown submits there are no exceptional circumstances that should cause me to digress from the traditional practice in this province of having the accused sit in the dock. Nor does she concede, in the absence of any empirical evidence, that the applicant would be prejudiced in the eyes of the jury by this circumstance. Finally, the Crown emphasizes that the ability of the jury to observe the applicant throughout the trial would be challenged by him being at the far end of the counsel table even if it was re-configured as suggested by Mr. Worsoff.

[3] The placement of the accused at trial is a matter of judicial discretion: see R. v. Lalande (1999) 1999 CanLII 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.) at para. 19. The cases are consistent and clear that the exercise of this discretion favouring placement in the dock will only be disturbed where a miscarriage of justice has been established: see R. v. Grandinetti (2003) 2003 ABCA 307 (CanLII), 178 C.C.C. (3d) 449 (Alta. C.A.) at para. 84. In the absence of any evidence to the contrary, I must presume the jury will accept my instructions to presume the innocence of the applicant as they should for all accused persons before the court. That is a fundamental pillar upon which our system of criminal justice is based. If it were otherwise, that system and our community are in deep peril.

[4] It is my practice to accord defence counsel liberal opportunities to consult their client. I have never found those reasonable accommodations disruptive of the trial process nor have I ever received complaints from any juries about those reasonably accorded.

[5] In the absence of any evidence suggesting prejudice to the applicant nor there being any exceptional circumstances suggesting the need for him to sit beside his counsel, I have not been persuaded that the normal placement in the dock should not prevail: see R. v. Gervais (2002) 2001 CanLII 28428 (ON SC), 49 C.R. (5th) 177 (Ont. S.C.J.). Accordingly, this application is dismissed.