The New Test for Counsel Table Applications: R v Allred

A seemingly simple question — where should the accused sit during a jury trial? — has generated more than two decades of conflicting decisions in Ontario's courts. A new ruling from the Court of Appeal has finally settled the matter, at least for accused persons who are in custody awaiting trial.

Background: A Long-Running Debate

Ontario courtrooms have a designated spot for the accused: the prisoner's box, sometimes called the prisoner's dock. It is a fixed enclosure, separate from counsel table, where the accused sits for the duration of the trial. For years, accused persons have been bringing applications to be allowed to sit at counsel table instead — closer to their lawyers, and without what some argue is the stigmatizing effect of being visibly confined in a box while presumed innocent.

Ontario's Superior Court has spent enormous time hearing and deciding these applications, with results that have been deeply inconsistent. Some judges allowed the accused to move to counsel table; others refused. The outcome often depended more on which judge was assigned to the trial than on any principled legal distinction. Superior Court judges had been openly calling for appellate guidance for fifteen years. R v Allred, 2026 ONCA 258, is the Court of Appeal's answer.

What Happened in Allred

Damien Allred was charged with the second degree murder of a 75-year-old woman who lived a few apartments away from him. The Crown's case was overwhelming: DNA evidence, video footage, bloody footwear impressions, and bare footprints in the hallway leading back to his unit. The jury convicted him, and he was sentenced to life imprisonment with 17 years of parole ineligibility.

His only ground of appeal was that the trial judge had wrongly refused his pre-trial application to sit at counsel table. He argued that being placed in the prisoner's box stigmatized him before the jury, interfered with his ability to communicate with his lawyer, and was based on a flawed legal analysis.

Associate Chief Justice Fairburn, writing for a unanimous panel, dismissed the appeal — but used the occasion to lay down a clear framework for how these applications should be decided going forward.

The New Rule: A Presumption for In-Custody Accused

The central contribution of Allred is the establishment of a legal presumption. For accused persons who are in custody at the time of their trial, there is now a presumption that they will sit in the prisoner's box. It falls to the accused to bring an application and establish reasons why the presumption should be displaced.

This marks a clarification of — and, in some respects, a departure from — the Court of Appeal's earlier decisions in R v A.C. and R v Lalande, both of which had stated there was no "presumption" in favour of the prisoner's box, only a "default" position. Associate Chief Justice Fairburn explained that those cases involved accused persons who were not in custody, and had been incorrectly read by trial judges as setting the rule for all accused. When someone is detained and is being escorted to and from the courtroom each day by corrections officers, the analysis is different. The fact of detention is itself a relevant starting point.

The presumption is not meant to be insurmountable. The accused does not need to show that their ability to make full answer and defence will be definitively compromised, or that their fair trial interests will be irreparably harmed. But there must be a reason to depart from it, assessed through the exercise of the trial judge's discretion.

The Stigma Question

The most contested aspect of these applications has always been whether sitting in the prisoner's box prejudices the accused in the eyes of the jury — creating a visual signal of guilt that undermines the presumption of innocence.

Ontario judges have disagreed sharply on this. Some have described the risk of prejudice as real and substantial. Others have concluded that there is no meaningful stigma, or that any stigma can be cured by proper jury instructions. Associate Chief Justice Fairburn comes down firmly in the second camp.

Her reasons express considerable faith in the jury system. Jurors, she held, know the accused is the accused. They know what he is alleged to have done. They are repeatedly and explicitly instructed on the presumption of innocence and the burden of proof. They are told to confront their conscious and unconscious biases. To assume that a juror will nevertheless be swayed by where in the courtroom the accused happens to be seated is, in her view, to assume that jurors will simply ignore their instructions — a conclusion she was not prepared to accept.

She also considered and rejected social science research suggesting that accused persons placed in a glass dock were roughly 1.8 times more likely to be viewed as guilty by mock trial participants. The methodology, she found, was too artificial to be reliable: the simulated trials were brief and involved no oath or affirmation, no proper instruction on the burden of proof, and no explanation of what constitutes evidence. Without those features, present in every real criminal trial, the study's results could be extrapolated to actual jury proceedings.

An Interesting Tension with Hussein

It is worth noting a tension this decision creates with the Supreme Court of Canada's recent ruling in R v Hussein, where the Court held that when it comes to an accused's criminal record, the risk of moral prejudice is best addressed through evidentiary exclusion rather than through limiting instructions. The implication is that a jury instruction telling jurors not to use prior criminal record evidence improperly may not always be sufficient to protect the accused.

Allred takes a different view of the power of instructions — at least in the context of where the accused is sitting. Whether this tension will need to be resolved in future cases remains to be seen.

What This Means in Practice

The practical consequences of Allred are significant for criminal defence lawyers and their clients.

First, applications to sit at counsel table will now be harder to win for in-custody accused. The onus has shifted: it is no longer enough to raise concerns about stigma or communication — the accused must affirmatively displace a legal presumption.

Second, Associate Chief Justice Fairburn makes clear that these applications should be brought in writing, well in advance of trial. They should not become lengthy oral arguments that consume scarce court time at the outset of a jury trial.

Third, and perhaps most importantly, the decision signals that trial judges who summarily dismiss such applications will be difficult to fault on appeal. The decision is discretionary and entitled to deference. Unless the trial judge makes a legal error — and the framework is now clearer — an appellate court is unlikely to interfere.

For accused persons facing jury trials in Ontario, the prisoner's box is now the starting point, not just the default. Displacing it will require a focused and well-prepared application.