The Counsel Table Debate: A Principled Approach by Justice Schreck

By Jordyn Cowley, Associate

The placement of an accused person in the courtroom during his or her trial has been a longstanding topic of debate in the Ontario Superior Court of Justice. In our recent case, R. v. Douse and Smith, 2022 ONSC 3163, the Honourable Justice Schreck took the opportunity to comment on the issue and clarify a principled approach.

His Honour explained that, while there are two competing lines of case law, in his opinion, there is no presumption with respect to where the accused is to be seated during his trial. Every case is to be assessed individually and the decision is entirely within the discretion of the trial judge. His Honour confirmed that the decision should be made with regard to only two factors, namely: (i) the interests of a fair trial, and (ii) courtroom security. No mind should be paid to tradition or the ability of the trier of fact to see the accused’s reaction to the evidence. Justice Schreck concluded that “fair trial interests will almost always favour allowing the accused to sit at counsel’s table,” unless those interests are outweighed by specific security concerns. 

His Honour acknowledged that, though these reasons were intended to create a principled approach, they are unlikely to end the debate about the accused’s proper position in the courtroom. His Honour urged the need for appellate guidance or standardized rules to avoid the arbitrariness of the decision being based on the default preference of the assigned trial judge. The future of this debate remains to be seen, but Justice Schreck’s decision is a persuasive step in the right direction.