R. v. Butt, 2019 NLSC 2

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Butt , 2019 NLSC 2 Date : January 8, 2019 Docket : 201701G1025 Her Majesty The Queen v. Trent Spencer Butt Restriction on publication : Pursuant to s. 648 (and ss. 645(5)) of the Criminal Code of Canada : No information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. Before: Justice Donald H. Burrage Place of Hearing: St.

John’s, Newfoundland and Labrador Date of Hearing: December 11, 2018 Appearances: Lloyd M. Strickland and Appearing on behalf of the Crown Jennifer E. Lundrigan Derek J. Hogan and Appearing on behalf of the Accused Shanna M. Wicks John D. Brooks, Q.C. Appearing as amicus curiae

Authorities Cited: CASES CONSIDERED: R. v. Cook, (SCC), [1997] 1 S.C.R. 1113; R. v. T. (G.J.) (2000), (NLSC), 200 Nfld. & P.E.I.R. 41, 49 W.C.B. (2d) 497 (Nfld. S.C.,); R. v. Dalton (1998), (NL CA), 163 Nfld. & P.E.I.R.254, 39 W.C.B. (2d) 1 (Nfld. S.C.); R. v. McCarthy,

(2012) NLTD(G) 23; R. v. M.B., 2018 NLSC 231 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 TEXTS CONSIDERED: Commission on Proceedings Involving Guy Paul Morin, Report of the Kaufman Commission on ProceedingsInvolving Guy Paul Morin (Ontario: Publications Ontario, 1997) REASONS FOR JUDGMENT Burrage, J.: INTRODUCTION [1] The accused, Trent Spencer Butt, is charged with first degree murder in the death of his daughter, Quinn Butt, contrary tosection 235(1) of the Criminal Code, R.S.C. 1985, c. C-46, as well as arson, contrary to

section 434 of the Criminal Code. On 11December 2018 he entered a plea of guilty to the arson charge. His trial on the first degree murder charge is scheduled to commencebefore judge and jury on 4 March 2019. [2] I have before me two pretrial applications, both brought by the defence. The first seeks an Order prohibiting the Crown fromhaving a police officer read the contents of a letter, entitled “Final Words”, into the record at trial. The second seeks permission to haveMr.

Butt sit at the defence counsel table. the “final Words” letter Position of the Parties [3] The letter entitled “Final Words” was seized from a container in Mr. Butt’s truck by Constable Peter Gosse, pursuant to asearch warrant. Mr. Butt acknowledges that he is the author of this letter, and agrees to the continuity of all seized exhibits[1]. [4] The defence submits that once the letter is tendered as an exhibit at trial, copies can be given to each of the jurors, who maythen read it for themselves.

To permit Constable Gosse to read it aloud would add nothing to its probative value, and by virtue of theofficer’s authority may, in fact, cause significant prejudice to Mr. Butt. This is true regardless of the officer’s efforts to give an impartialreading. The defence further observes that once the letter is tendered it becomes a public document, thus fulfilling the open courtprinciple.

Finally, the defence accepts that there is nothing to prevent Crown counsel from reading some, or all of the letter, aloudduring the trial. [5] For its part, the Crown submits that the letter is a critical piece of evidence, as its contents are a window into the accused’sstate of mind and his intent on the night his daughter died. The Crown argues that it has a discretion to present its case in a manner of itschoosing, and subject to the Charter[2] and rules of evidence, it is entitled to elicit testimony in a manner that is persuasive (R. v.

Cook, (SCC), [1997] 1 S.C.R. 1113). [6] The Crown submits that by having the police officer read the letter aloud : - all members of the jury would be aware of the contents and there would be no concern about literacy issues with any jurors; - the Court would avoid awkwardly delaying proceedings while awaiting for all jury members to read the letter during proceedings; - the public in the courtroom would simultaneously be aware of the contents of that letter, as opposed to being left to guess.

The defenceproposal would unnecessarily limit public knowledge of evidence tendered during the trial, contrary to principles of openness. [7] The Crown wishes each member of the jury to hear the contents of the letter at the same time. In the Crown’s submission,the letter ought not to be slipped into evidence as if it were a “real estate contract”. [8] In responding to the defence argument that reading the letter would be prejudicial, the Crown submits that the officer couldbe cautioned to read the letter in a neutral fashion, without emotion or inflection.

According to the Crown, the officer’s role as anauthority figure adds nothing to the letter and police officers frequently testify for the Crown in any event. Finally, the Crown argues

that having Crown counsel read the letter creates a potential for confusion, as the jury will be instructed that statements of counsel arenot evidence. [9] In response to this latter point, the defence observes that having the police officer read the letter will result in this directionbeing given, not once, but twice. It is the letter itself that is evidence, not the officer’s (or Crown’

s) rendition of it. [10] Following defence and Crown submissions the amicus raised the possibility of having the court clerk read the letter aloud, as ameans of addressing the concerns of both. Analysis and Disposition [11] As noted, the defence acknowledges that the Final Words letter was authored by Mr. Butt and that continuity is not in issue. Itis therefore anticipated that the letter will be tendered as an exhibit by Constable Gosse, who will testify as to where it was found. Thispiece of evidence, which the Crown considers critical to its case, will thus be entered as an exhibit at trial.

A copy will be provided toeach member of the jury. [12] The Final Words letter, once tendered as an exhibit, is a piece of physical evidence, the content of which is directly perceivablethrough the senses without the intervention of witness testimony. The letter will be available to each member of the jury, as it will thepublic at large. [13] The probative value of the letter lies in the fact of its existence, the words used and Mr. Butt as its author. Having ConstableGosse read the letter to the jury adds nothing to this probative value.

Indeed, the jury will need to be instructed that the constable’srendition of the letter is itself not evidence. [14] Furthermore, there is a risk that despite the officer’s best efforts, inflection and/or emotion may enter into the reading of theletter. The manner in which the letter is read can have a dramatic effect on how it is received by the jury. Coming from a person inauthority could only serve to amplify this impact.

The probative value of such a reading is nil, while the prejudicial effect is potentiallygreat. [15] The prejudicial effect is not outweighed by any delay in the proceedings while members of the jury take the time to read theletter. Further, any concerns regarding confusion in the mind of the jury, should the Crown elect to read the letter, can be addressed inmid-trial and final instructions. [16] Finally, while I appreciate the compromise suggested by the amicus, I am not prepared to place the court clerk in the positionof having to read this letter aloud.

This is not the clerk’s function and as an officer of the court the prejudicial danger remains. [17] For the foregoing reasons, the defence application prohibiting Constable Gosse from reading the Final Words letter at trial isgranted. The seating of Mr. Butt Position of the Parties [18] The defence submits that the Court should exercise its discretion to permit Mr. Butt to sit at the counsel table during his trial,as to do so will facilitate his communication with counsel, remove the stigma of the prisoner’s dock, and will comply with court securityrequirements.

The defence notes that there is precedent for doing so: R. v. T. (G.J.) (2000), (NL SC), 200 Nfld. &P.E.I.R. 41, 49 W.C.B. (2d) 497 (Nfld. S.C.,) and R. v. Dalton (1998), (NL CA), 163 Nfld. & P.E.I.R. 254, 39W.C.B. (2d) 1 (Nfld. S.C.). Further, that such requests be granted is a Recommendation of the Morin Inquiry. While such a request wasdenied in R. v. McCarthy,

(2012) NLTD(G) 23, the defence submits that Mr. Butt can be positioned in view of the jury and that he anddefence counsel undertake to speak quietly to each other. [19] The Crown opposes the defence request, arguing there are safety concerns should Mr. Butt be permitted to sit at the counseltable. The Crown is also concerned that Mr. Butt would be in a position to intimidate witnesses, as he would not be separated from therest of the courtroom by a barrier. [20] The Crown argues that any concerns regarding the presumption of innocence, should Mr.

Butt sit in the dock, can be addressedin the instructions to the jury. Analysis and Disposition [21] I was referred by the Crown and defence to various decisions where the accused was permitted to sit at the counsel table andothers where this defence request was denied. What emerges from these authorities is the following, non-exhaustive, list ofconsiderations: • In a criminal trial the seating and location of the accused lies within the sole discretion of the trial judge. • While the default placement of the accused is in the prisoner’s box, there is no presumption in this regard.

Nor is there apresumption that the accused will sit at the counsel table. • The placement of the accused in the dock does not, in and of itself, diminish or threaten the presumption of innocence enjoyed bythe accused. In addition, proper instruction to the jury can eliminate any perceived prejudice which may flow from placing the accused

in the prisoner’s dock. • Does the presence of the accused in the prisoner’s dock markedly impair the accused’s ability to make full answer and defence?

If so, the trial judge has an obligation to consider an alternate seating arrangement, so as to minimize or eliminate the impairment. • The question of where the accused sits is to be assessed on a case by case basis, having regard to the interests of a fair trial and courtroom security. • The seriousness of the offence, taken in isolation, is not a relevant factor, as it says nothing about security concerns, or the interest of a fair trial. • Where the accused sits is not to be determined in reference to a hypothetical in-custody accused in future proceedings.

The fact that some accused will be permitted to sit at the counsel table, while others remain in the prisoner’s box, is not relevant. Each accused is entitled to have the issue decided on its own merits. • The tradition in our legal system is that the judge, jury, witnesses, accused and counsel are all present in sight of each other. • Whether the physical layout of the courtroom is amenable to the defence’s request.

For example, whether the jury would be required to pass directly in front of the accused, separated only by the counsel table ; whether or not the jurors will have a clear view of the accused during the trial; whether jurors might be distracted by dialogue between defence and accused. • Recommendation 83 of the Morin Inquiry provides that 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 prisoner dock. [ 22 ] Applying the foregoing considerations to the facts of the case. [ 23 ] Counsel for Mr.

Butt submits that communication will be easier with Mr. Butt at the counsel table and that the two undertake to speak quietly so as not to distract the jury. In fact, according to the defence, it may be more distracting if counsel is required to go back and forth from the counsel table to the prisoner’s dock. [ 24 ] While communication may indeed be easier, this submission falls short of establishing that Mr. Butt would be unable to make full answer and defence from the prisoner’s dock. [ 25 ] As Knickle, J. observed in R. v.

M.B ., 2018 NLSC 231 , it can reasonably be assumed that a trial is not the first communication between counsel and the accused (at para. 16): 16. A trial is not the place to be having first communications with one's client. Counsel can be expected to have discussed strategy, and other trial concerns with their client well before evidence is called. Standing alone the need to communicate with counsel is not impaired simply because an accused is in the prisoner dock. If something unexpected arises, there is always the ability to take a break to confer with one's client. [ 26 ] This is not a circumstance where Mr.

Butt’s presence in the prisoner’s dock is such as to markedly impair his ability to make full answer and defence. I am satisfied that he can obtain a fair trial without resort to the counsel table. [ 27 ] That said, as matters now stand, nor is Mr. Butt’s presence in the prisoner’s dock necessary to maintain court security. [3] [ 28 ] As Mr.

Butt is in custody, his trial will take place in courtroom number 4, as this courtroom provides relatively secure access to the holding cells in the basement. [4] [ 29 ] After due consideration, I have come to the conclusion that the physical layout of this courtroom is not conducive to Mr. Butt’s request that he sit at the counsel table. In reaching this conclusion I am mindful of the importance that the jury have a clear and unobstructed view of Mr. Butt, and he of them. I have also considered the proximity of Mr. Butt to Crown counsel and Mr.

Butt’s proximity to witnesses who are testifying, and jury members as they exit and enter the courtroom. Let me explain. [ 30 ] When viewed from the bench the prisoner’s dock lies straight ahead and to the left of the jury box. It is slightly elevated, such that the jury and accused have an unobstructed view of each other. In front of the dock, between it and the bench, are two long tables for counsel. The table closest to the dock offers a view of the jury, particularly from the right side. The table in front, generally reserved for Queen’s Counsel, does not, as to look at the jury one has to turn around.

It is therefore not feasible to permit Mr. Butt to sit at the front table, nor to direct the Crown to sit there. This leaves the remaining table. By convention the Crown sits to the right and defence to the left. It is a convention I am not prepared to change. There are two counsel representing Mr. Butt and two representing the Crown. The table seats four comfortably, but for Mr. Butt to have a reasonable view of the jury he would be obliged to sit in the middle, between Crown and defence. Such proximity puts the Crown in an awkward spot, to say the least.

It also means that when the jury enter and exit the courtroom they will be obliged to pass directly in front of Mr. Butt, separated only by the counsel table. The remaining option is to give Mr. Butt a chair outside the docket. To see the jury this chair could not be to the left of the docket, but would have to be in front of it. There is little room to do so and again proximity to the Crown is a concern. [ 31 ] Any perceived prejudice to Mr. Butt from his presence in the prisoner’s dock can be addressed through proper instruction to the jury.

In this regard, the instruction I currently propose to give will be along these lines: ➢ You will observe that this courtroom is designed such that each of the participants in this trial have their allotted place. There are seats in the back for the spectators, a table in the front for Crown and defense counsel, a place to my left for the witness to give evidence, and a place for the court clerks and sheriff’s officers. You, the jury, have your assigned seating. I have mine, and Trent Butt has his assigned seat. This arrangement is such that all participants can see and hear the evidence.

➢ I have already instructed you on the presumption of innocence (this preliminary instruction will be given first). As Mr. Butt enters the courtroom, he is presumed to be innocent of the charge against him. That presumption continues with him throughout the trial, unless and until the Crown is able to convince you beyond a reasonable doubt of his guilt. The fact that Mr. Butt has his assigned seat in these proceedings, as do we all, does not change the presumption of his innocence.

You are therefore to draw no inference of his guilt, or innocence, from his assigned seating in this courtroom. [ 32 ] There is time between now and the trial to modify the foregoing instruction if counsel have any concerns or recommendations, which I find acceptable, for improvement. [ 33 ] As Goodridge, J. did in McCarthy , I am prepared to make reasonable accommodations to provide Mr. Butt with the opportunity to communicate with his lawyers during the trial. [ 34 ] For example, I have no difficulty with defence counsel conferring with Mr.

Butt before completing the questions of an important witness and am prepared to grant reasonable requests for a break to facilitate communication during the trial. I agree with Goodridge, J., that this approach is to be preferred over communication between counsel and client during a witness’s testimony, the consequence of which could be to distract jurors. [ 35 ] For the foregoing reasons the defence’s request to have Mr. Butt sit at the counsel table is denied. _____________________________ Donald H. Burrage Justice