The Presumption of Innocence is Being Eroded by Procedure:

The Presumption of Innocence is Being Eroded by Procedure: Last week, the Ontario Court of Appeal released its decision in R. v. Allred. The court resolved a singular issue that has divided trial courts across Ontario for decades: where should an in-custody accused sit during their trial – the prisoner’s box or counsel table?[1]

In its exacting decision, the Court held that an in custody accused will, presumptively sit in the prisoner box. The onus is now on the defence to displace the presumption by bringing an application explaining why the accused should sit with their lawyer at counsel table.

This narrow issue has far-reaching stakes. It’s part of a framework that moves Ontario’s law in the wrong direction – one in which the presumption of innocence is being eroded by procedure.

The Court’s reasoning is underpinned, in part, by two pillars:

(1) heightened security concerns when an in-custody accused sits at counsel table, and

(2) the view that any stigma arising from placement in the prisoner’s box is cured by standard jury instructions.

Ontario courts have long grappled with the prejudicial effect of the prisoner box – from the 1998 Kaufman commission’s report on the wrongfully convicted Paul Morin to R v. Douse, a 2022 Superior Court decision where Schreck J held that that “requiring an accused to sit in the dock risks stigmatizing them and creating a conscious or unconscious perception that they are dangerous”.

The prejudicial effect of the prisoner box is not a novel observation – Allred eclipses decades of judicial understanding in a single step backwards.

Security does not justify the default

Allred responds to a problem that, as a systemic matter, is far smaller than its solution.

Consider the scale. The Ontario Court of Justice in Toronto operates from 10 Armoury street, a 17-storey facility with approximately 63 courtrooms running daily.

The Toronto Police Service is responsible for the shuffling of hundreds of in-custody accused attending court each day. Year over year, that adds up to tens of thousands of in-custody appearances. Against that volume, in-court incidents involving violence by an accused are rare.

The recent incident in Peterborough is a useful illustration of how rare. In February 2026, during a dangerous offender hearing at the Ontario Superior Court of Justice in Peterborough, a Crown attorney was allegedly assaulted by an accused who, according to media reports, jumped out of the prisoner’s box while in leg shackles. The matter is presently before the courts.

That incident drew media attention precisely because of how out of the ordinary it was. It involved a dangerous offender hearing (a proceeding reserved, by definition, for individuals with established histories of repeated serious violence). Notably, the accused was already in the prisoner’s box, in leg shackles. The box did not prevent it.

The reality the incident demonstrates is this: the prisoner’s box is not the fix-all security solution we think it is. Crafting a default that requires every in-custody accused to demonstrate why they deserve their constitutionally protected right to full answer and defence is a band-aid on a bullet wound.

Put another way, a person who has not been convicted of anything should not have to apply, in writing and in advance, to sit where an accused released on bail sits as a matter of course.

Jury instructions are not a cure-all:

The Court’s second pillar is that jury instructions are sufficient to dispel any stigma flowing from placement in the prisoner’s box. Allred itself acknowledges that this is a contested proposition; the Court cites a series of trial-level decisions holding the opposite: that sitting in the prisoner’s box carries a real risk of prejudicing the jury’s perception of the accused.

Those decisions are not outliers. They reflect the reality that visual impressions, formed and reinforced over days or weeks of trial, are not dislodged by instructions in the charge at the tail-end of a trial. A juror is told to presume the accused innocent. The juror then watches, day after day, as that same accused is escorted into a box, seated alone behind his lawyer, flanked by officers. The instruction and the image pull in opposite directions.

What’s really lost: full answer and defence

Beneath the security and stigma arguments is a practical reality the Court understates. Trial preparation with an in-custody client is already severely constrained. Lockdowns, limited counsel visits, and institutional rules governing how documents and digital evidence may be reviewed all compress the time and quality of preparation that can be done before trial. That compression makes in-court access to counsel more important, not less.

While the Court acknowledges that “the right to make full answer and defence may necessitate permitting the accused to sit at or near counsel table, with proper security measures in place, the Court places the burden on the accused, on every occasion, to demonstrate why they should be allowed to exercise that right.

That is not how constitutional protections are meant to operate.

The obligation should rest with the state, at each occasion to demonstrate, on a credible basis, why an individual who is in custody should sit in the prisoner box. When real security risks exist, they should be met with real security arrangements – not a seating default that undermines a constitutional kingpin of our justice system.

Allred is another procedural tile added to a mosaic that, piece by piece, makes the presumption of innocence do less work than it once did. That is worth naming, worth writing about, and worth contesting – through applications, through appeals, and through the defence bar’s ongoing conversation about what a fair trial actually looks like.

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