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Criminal - Trial Management. R. v. Allred [where defendant sits]
In R. v. Allred (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a conviction for "second degree murder" grounded on the trial judge's denial of "his application to sit at counsel table", rather than the prisoner's box.
Here the court considers calls for it's guidance on this issue:2. A call for guidance
[39] In Ontario, there has been a vigorous debate, for well over two decades, about where the accused should sit in the courtroom – in the prisoner’s box or at (or near) counsel table – and the factors that should be taken into account when deciding that issue.
[40] This does not appear to be a source of significant debate elsewhere in Canada. The comparatively small number of cases on this issue outside of Ontario suggests it has not required so much time and attention in other Canadian jurisdictions.
[41] Interestingly, the Superior Court of Québec recently changed its rules of practice on this issue. Previously, the rule provided that an accused “shall remain in the prisoners’ dock throughout the trial unless authorized by the judge to sit elsewhere in the court room” (emphasis added): Rules of Practice of the Superior Court of the Province of Quebec, Criminal Division, 2002, r. 9 (SI/2002-46). In June 2025, the rule was changed. The new rule removes judicial discretion, and now simply states that “[t]he accused must remain in the dock, throughout the trial”: Rules of the Superior Court of Quebec in Criminal Matters, r. 15.[2]
[42] The Ontario Superior Court of Justice has spent countless hours hearing and deciding applications by accused to be permitted to sit outside the prisoner’s box. These applications are sometimes allowed and sometimes denied. Examples of applications allowed include: R. v. Wills, 2006 CanLII 31909 (Ont. S.C.); R. v. M.T., 2009 CanLII 43426 (Ont. S.C.); R. v. Davis, 2011 ONSC 5567; R. v. Liard and Lasota, 2013 ONSC 5457; and R. v. Lewis, 2024 ONSC 5261. Examples of applications denied include: R. v. Vickerson, 2006 CanLII 2409 (Ont. S.C.); R. v. Minoose, 2010 ONSC 6129, 81 C.R. (6th) 191; R. v. Barrett, 2017 ONSC 3867; R. v. Bush, 2017 ONSC 6171; and R. v. Mohiadin, 2023 ONSC 1890. To be sure, these are just random examples. There are many more published decisions from both the Superior Court of Justice in Ontario, as well as the Ontario Court of Justice, that pertain to this issue. And, as would be expected, many rulings involving this issue are never published. The point is that a great deal of court time and judicial resources are taken up on this question in Ontario: where should the accused sit during the trial?
[43] The issue has also attracted academic commentary.[3] As well, it was raised in the report of the Commission on Proceedings Involving Guy Paul Morin, although the report did not explain the basis for its recommendation that “[a]bsent 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 prisoner’s dock.”[4]
[44] It is fair to say that, for some time, the Superior Court has been asking this court to provide guidance. Fifteen years ago now, Corbett J. made this call for clarity and guidance:I would suggest, with respect, that our trial court has pretty much exhausted this debate without resolving it. Appellate guidance would reduce, substantially, the number of times this issue is raised at trial, and would provide trial courts with a clear starting position, something that now turns on the personal preferences of trial judges.
For obvious reasons, this issue is not likely to emerge as a compelling ground of appeal. If, as a result, appellate guidance is not forthcoming, perhaps this is a matter that could be addressed expressly in the criminal rules.
Liard, at paras. 188-9. [45] More recently, Schreck J. repeated Corbett J.’s call for guidance in Douse, at para. 53. As Schreck J. put it, decisions going back over two decades suggest that “different members of [the Superior Court] take dramatically different approaches, with the result being that where an accused sits during his or her trial depends largely on which judge is assigned to the trial.” He noted that this gives rise to an impression of “arbitrariness”, which undermines the administration of justice.
[46] I agree with Corbett and Schreck JJ. In my view, it is appropriate to provide additional guidance in the hope that it will reduce the amount of court time spent arguing about the position of the accused in the courtroom.[5]
[47] Accordingly, I will clarify the legal framework to be applied when an in-custody accused is being tried, including by a judge and jury, and requests to sit outside the prisoner’s box.
3. Legal framework
[48] I start by acknowledging that a trial judge’s decision on where an accused should sit is a discretionary one: R. v. Lalande (1999), 1999 CanLII 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.), at para. 19. Accordingly, that decision is entitled to deference, absent a legal error.
a. The legal presumption for in-custody accused
[49] It seems to me that the divergent lines of authority when it comes to this issue are generated by a few factors that are deserving of clarification.
[50] The first relates to the idea that, although the prisoner’s box is the “default placement” for the accused, there is “no presumption” that the accused will sit there. This idea can be traced to this court’s decision in A.C., where this court held that “[i]n every case, the accused's placement must permit him to make full answer and defence, but the issue is to be assessed on a case-by-case basis, having regard to the interests of a fair trial and courtroom security in the particular circumstances of the case”: at para. 37, citing Lalande. Hourigan J.A. explained that “[w]hile the default placement of an accused on trial is in the prisoner’s box, there is no presumption in this regard” (emphasis added): at para. 37.
[51] Many trial judges, including the trial judge in this case, have understood the “default placement but no presumption” rule from A.C. to apply to all criminal cases, without regard to whether the accused is in custody or not. In my view, this is wrong because A.C. must be read in its proper context.
[52] Unlike this case, A.C. involved an accused who was out on bail during his trial and yet was told to be seated in the prisoner’s box when he arrived at court each day: A.C., at para. 30.
[53] Notably, the only other case from this court that has addressed where an accused should sit in the courtroom is Lalande. Like A.C., Lalande also involved an accused who was not detained during his trial and yet was required to sit in the prisoner’s box for the duration of his trial.
[54] In my view, both A.C. and Lalande must be read in the context of an accused who is not detained.[6] When an accused is not in custody, it makes sense to say there is no “presumption” – only a “default” – that the accused sit in the prisoner’s box. Among other things, the fact that the accused is not detained will typically signal that they have been deemed not to be a risk to the safety of others.
[55] The situation is different when it comes to accused who are detained. Although I accept that there may be different reasons for detaining someone on trial, the fact of their detention means that they are not at liberty to come and go on their own. Rather, they are part of a tightly controlled system that must prioritize the safety and security of all. Accused who are detained are escorted from custody to the courthouse every day. They are then escorted to and from the courtroom all day long. And then they are escorted back to custody at the end of the day. And the next day it all starts over again.
[56] In my view, it is appropriate against that context to presume that the in-custody accused will sit in the prisoner’s box. This is consistent with what A.C. describes as the “default” – the practical reality that an accused will sit in the prisoner’s box unless they bring a successful application to sit elsewhere. And, more importantly, it will provide a clear legal starting point. Without a presumption on these applications, a trial judge faced with making a discretionary, contextual decision must weigh a variety of considerations – including considerations that may pull in competing directions – without any legal starting point to anchor the analysis. Imposing a presumption in cases of this nature allows for analytical rigour, placing the onus on the detained accused to establish why he should be permitted to sit somewhere other than in the box designated for him.
[57] Based upon the foregoing, I do not accept the appellant’s argument that the trial judge erred by adopting the Gervais line of analysis, specifically by applying a presumption in favour of the prisoner’s box. In my view, although the trial judge could have applied such a presumption, he did not go that far. At paras 59-92 the court considers the "various factors that may come into play in deciding whether the presumption" that the defendant should sit in the prisoner's box is displaced - namely: whether any stigma is mitigated by jury instructions, the importance of visibility, security considerations and the need for communication with counsel or amicus. The court concludes:4. Summary: legal framework
[93] To summarize, an in-custody accused is presumed to sit in the prisoner’s box. Any perceived stigma that could be associated with the accused’s assigned place is mitigated by standard jury instructions. Although not necessary, a trial judge may give a more specific instruction regarding the accused’s placement in the courtroom.
[94] The imposition of the presumption is not meant to impose an onerous standard, one that is only overcome in exceptional circumstances. There is no need for the accused to demonstrate that his ability to make full answer and defence will be definitively compromised if he is not permitted to sit outside of the box. Nor does he have to demonstrate that his fair trial interests will be irrevocably impacted.
[95] Ultimately, it will be an exercise in discretion by the trial judge to determine, taking into account all relevant considerations, whether there is reason to depart from the presumption that the accused sit in the prisoner’s box and, if so, what additional security measures may be appropriate. Undoubtedly, in every case, the accused’s placement must permit him to make full answer and defence. At the same time, the safety and security of all justice system participants must be safeguarded and the fairness of the trial must be preserved. It goes without saying that discretionary decisions are owed deference on appeal.
[96] As for the application to have the accused sit outside of the prisoner’s box, there is no reason that these applications cannot be brought in writing, well in advance of the trial. They should not become make-work projects for already overburdened trial judges. . R. v. Allred [courtroom configuration]
In R. v. Allred (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a conviction for "second degree murder" grounded on the trial judge's denial of "his application to sit at counsel table", rather than the prisoner's box.
The court describes the "configuration of Ontario courtrooms", focussing on where the defendant sits:1. The configuration of Ontario courtrooms
[34] The Superior Court of Justice sits in more than 50 locations throughout the province. Not every courtroom is the same, but they have somewhat similar configurations to accommodate the various participants in the trial. Those participants include the trial judge, court staff, defence counsel, Crown counsel, jurors, witnesses and, of course, the accused.
[35] Generally, the judge is at the front of the courtroom. The court staff, including the registrar and court reporter, are very close by. So too is the witness “box” from where witnesses testify. The jurors also sit close by, typically in a jury “box”. And counsel are seated at tables facing the judge. All are in close proximity.
[36] So where is the accused?
[37] Again, most courtrooms have a “box” where the accused sits. Not all boxes are the same, with some made out of wood, some made out of glass or plexiglass, some just a bar and so on. Whatever its design, the box is a spot reserved for the accused. Finally, there is generally a bar behind which the public are seated.
[38] It is within this configured and confined space that the serious work of a criminal trial takes place. . R. v. Zhou
In R. v. Zhou (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the convictions were for "sexual assault and forcible confinement."
Here the court considers a judge's 'trial management' role:[35] The Crown argues that the trial judge was simply exercising his trial management powers. I disagree. Trial judges have broad trial management powers, but these powers are limited to discretion over matters that are not contrary to provisions in the Criminal Code: R. v. Province, 2019 ONCA 638, at para. 89. As reviewed above, the wording of s. 634(2.1) was clear; it did not suggest that a trial judge had the discretion to distinguish between peremptory challenges available to challenge jurors and alternate jurors.
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