R. v. Bain

R. v. Bain
Collection
Supreme Court Judgments
Date
1992-01-23
Report
[1992] 1 SCR 91
Case number
21401
Judges
Lamer, Antonio; La Forest, Gérard V.; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Evidence
Notes
SCC Case Information: 21401
Decision Content
R. v. Bain, [1992] 1 S.C.R. 91
Craig Alexander Bain Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
Indexed as: R. v. Bain
File No.: 21401.
1991: June 26; 1992: January 23.
Present: Lamer C.J. and La Forest, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to impartial tribunal ‑‑ Jury selection ‑‑ Crown's right to stand jurors aside ‑‑ Peremptory challenges ‑‑ Whether s. 563 of the Criminal Code inconsistent with s. 11 (d) ‑‑ If so, whether saved by s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 562(1), (2), (3), 563(1), (2), (3), 567(1)(a), (b), (c), (e), (f), (2), 570(1), (2).
Criminal law ‑‑ Jury selection ‑‑ Crown's right to stand jurors aside ‑‑ Peremptory challenges ‑‑ Whether s. 563 of the Criminal Code inconsistent with s. 11 (d) ‑‑ If so, whether saved by s. 1 .
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Accused wishing to know if lawyer hired ‑‑ Accused asked if father had telephoned ‑‑ Question answered literally by police and accused not told that lawyer hired by his father ‑‑ Accused interviewed and statements made ‑‑ Whether or not statements admissible ‑‑ Canadian Charter of Rights and Freedoms, s. 10 (b).
Evidence ‑‑ Admissibility ‑‑ Infringement of right to counsel ‑‑ Accused interviewed and statements made ‑‑ Whether or not statements admissible.
The police arrested appellant for sexual assault and informed him of his rights to counsel and to silence. The appellant's father had been unable to retain a lawyer when appellant was taken into custody and was to call when he had retained one. The lawyer, who was retained shortly afterwards, telephoned the police. The police told him of the circumstances of the investigation and that the appellant would probably be released later that day; he in turn told the police officer not to take any statement from the appellant until he was present. Appellant testified that he asked the officer whether his father had called, that he was told that he had not and that he could contact his father later. The officer did not inform the appellant that his father had retained a lawyer or that the lawyer had telephoned. The police officers initiated an interrogation of the appellant. The admissibility of evidence--first, that allegedly given in the police car and, second, that given later during the interrogation conducted after a lawyer had been retained--was disputed. Only the former was admitted at trial.
Appellant was tried before a judge and jury. Following arraignment, but before the first prospective juror was asked to step forward, the court ruled, on a motion by appellant's counsel, that both the Crown and the defence each be limited to four peremptory challenges and that the Crown be denied the power to stand jurors by. The court noted the Crown's objection. The jurors were then selected with both the defence and the Crown exercising their four peremptory challenges.
The jury acquitted the appellant. The Court of Appeal, however, allowed the Crown's appeal and ordered a new trial. The appellant appealed as of right and two constitutional questions were stated: whether ss. 562 and 563 of the Criminal Code were inconsistent with s. 11 (d) or s. 15 of the Canadian Charter of Rights and Freedoms and, if so, whether ss. 562 and/or 563 were justified by s. 1 . Also at issue was whether the trial judge erred in excluding the statements made after the lawyer had been retained.
Held (Gonthier, McLachlin and Iacobucci JJ. dissenting): The appeal should be allowed. Sections 563(1) and (2) of the Criminal Code were inconsistent with s. 11 (d) of the Charter ; this violation was not justified under s. 1 .
Per Lamer C.J., La Forest and Cory JJ.: The implementation of the impugned provisions would lead a reasonable person, fully apprised* of the Crown's extensive rights in selecting a jury, to conclude that there was an apprehension of bias contrary to s. 11 (d) of the Charter . This infringement was not justified under s. 1 . The ideal of absolute equality is not required by the Charter . However a discrepancy of 4.25 to 1 in favour of the Crown, when the Crown's ability to stand by is compared to the accused's right to peremptorily challenge, is so unbalanced that it gives an appearance of unfairness or bias against the accused. These provisions permit the Crown to obtain a jury that would at the very least appear to be favourable to its position rather than an unbiased jury. A criminal trial must be fairly conducted. It cannot be forgotten that it is the jury that must make the ultimate decision as to the guilt or innocence of the accused.
Per Stevenson J.: Section 11 (d) of the Charter requires that an accused person receive a fair trial by an independent and impartial tribunal. The test for both judicial independence and impartiality is whether the tribunal may be reasonably perceived as such. A jury need not be found to be actually partial before an infringement of the Charter is found. The informed observer's perception that the system of selecting jurors impairs impartiality is sufficient. If one party enjoys a greater influence, the observer need only have a reasonable apprehension of partiality.
The disparity between the accused's and the Crown's right to challenge jurors cannot meet the test. The stand by cannot be upheld because it allows the Crown to have a greater role in fashioning the jury. The Crown may take partisan interests into consideration in carrying out that role. The accused's role is thereby significantly diminished, impairing the appearance that the jury is indifferent as between the Crown and the accused. The substantial disparity contained in this legislation exists not in a mere procedure or rule but in the role each party has in choosing the jury.
The peremptory challenge is "purely subjective" and a stand by, which can be exercised until the whole panel has been called, is its equivalent. The Crown, in exercising its stand by power, can achieve a peremptory challenge, effectively deferring a challenge for cause or peremptory challenge. The stand by is not a "deferred challenge for cause" because, with large jury panels, a juror who is stood by will not be recalled in many cases.
The observer of the process is bound to conclude that, absent some control, the Crown possesses a substantial advantage and can effectively influence the make‑up of that jury under partisan considerations. Professed good intentions cannot be relied on such a disparity. The Crown is not uninterested in securing convictions of accused persons. Section 563 provides for the apparent transformation of this interest into reality and so offends s. 11 (d) of the Charter .
The relative roles of the accused and the Crown in selecting the jury are not comparable to other procedures within the trial process. The jury must be, and must be seen to be, impartial. When the Crown enjoys a tactical advantage, as occurs because of the stand bys, the accused's role in selecting his or her jury is diminished.
The peremptory challenge is not, itself, under attack. It may be used under partisan considerations, and, so long as the right of exercise is proportionate, neither the Crown nor the accused can be said to have an unconstitutional advantage.
The Crown did not establish that this Charter breach was demonstrably justified in a free and democratic society. No pressing concern justifying a limitation was demonstrated.
The trial judge correctly excluded the statements. The police, given compliance with the s. 10 (b) requirement of advising the accused without delay of his right to counsel, have no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel. An accused, once informed of the right to counsel, has the onus of showing the opportunity to contact counsel was denied. Here, the police had a responsibility of doing more than literally answering the appellant's question whether his father had called. A literal response was misleading because the obvious intent of the inquiry was to further the objective of communicating with counsel.
Per Gonthier, McLachlin and Iacobucci JJ. (dissenting): As regards independence and impartiality of the tribunal in criminal cases, ss. 7 and 11 (d) of the Charter are congruent. Section 11 (d) of the Charter merely enunciates a particular aspect of the general protection against deprivations of the right to life, liberty and security of the person found in s. 7 of the Charter . Arguments made under s. 11 (d) of the Charter apply with equal force to s. 7 .
These reasons do not depend on whether Crown peremptory challenges and stand bys are distinguishable or not in practice, and hence it was assumed that they were not.
The apprehension of bias must be a reasonable one, held by reasonable and right‑minded persons applying themselves to the question and obtaining thereon the required information; the grounds for that apprehension must be substantial. An allegation of institutional partiality is serious and generally implies that the legal framework surrounding the institution in question is itself flawed, irrespective of the particular circumstances of the various cases.
In the case at bar, it was not sufficient, for a determination under s. 11 (d) of the Charter , simply to take notice of the disparity between the Crown and the accused in the jury selection process and then to conclude that a reasonable apprehension of bias arose. The right‑minded observer must consider the question and seek information in order to make an informed opinion.
A jury must be representative, impartial and competent. Random selection, which favours representativeness, provides a certain guarantee that the jury will also be impartial, but this is by no means true in all cases. The Criminal Code offers to the parties various means of challenging prospective jurors, whether collectively or individually, in order to bolster the impartiality of the jury. A proper jury, by implication, must also be competent. Jurors should also be able to understand the trial, their role in the trial, the evidence that is presented, the principles they have to apply, among other things. Most trials require the same competence as is involved in the daily pursuit of one's affairs, and the ability to speak and understand one of the official languages will suffice. Some trials are more complex and complicated, however, and a tampering with randomness may be appropriate to achieve a minimal ability to understand the evidence and issues.
The accused has a fairly clear and circumscribed role in the trial and in the jury selection process. He or she is expected to do nothing more than try to avoid conviction and punishment by asserting his or her rights according to law. The accused, however, has no right to a jury of his or her choice.
The role of the Crown in the jury selection process, as in the trial as a whole, is not only different, but also asymmetrical. The Crown Attorney has a quasi‑judicial role and must ensure that the jury is representative, impartial and competent. These qualities, especially impartiality, must not be sought to secure a conviction but rather to select the best jury to try the case. Indeed the Crown Attorney should use the means at his or her disposal to exclude prospective jurors that could be biased in favour of the prosecution, even if the defence is not aware of this fact. Through this role, in conformity with its general duties, the Crown addresses the need to be able to exclude prospective jurors who would not fall under any of the statutory grounds of exclusion but whose presence on the jury would nevertheless impair its impartiality, its representativeness or its competence. It provides the element of flexibility.
The relatively large number of challenges and stand bys given to the Crown is consistent with the need for flexibility in the process. It is not incumbent upon the Court to inquire into the adequacy of the actual numbers contained in the Code. They are the result of historical compromises and whether they are still adequate today are questions better left for Parliament to decide.
The possibility of a large number of Crown interventions in jury selection enables the Crown fully to play its role when the situation so requires. The Crown will not exercise all of its four challenges and 48 stand bys merely because it holds them. In fact, a proper exercise of its role would call for restraint. Since the Crown plays this important quasi‑judicial role and infuses some flexibility into the jury selection process, it is only normal that the means of exclusion at its disposal also allow some room for manoeuvre. Moreover, the limit of 48 itself is flexible, since upon judicial authorization it can be increased. The well-informed observer would see this disparity as a reflection of the asymmetry between the roles of the accused and of the Crown attorney.
The observer would not see any clear link between the jury selection process and the impartiality of the empanelled jury. Given the dearth of information made available, it is not apparent that parties can influence the verdict by challenging or standing by prospective jurors. Indeed, any attempt to influence the verdict of the jury by hand‑picking its members, unless it can be done on such a grand scale as to affect the whole jury, is bound to run against the unanimity requirement, and its efficacy may therefore be highly doubted by the observer. To argue that a mere disparity in the jury selection process suffices to predetermine the verdict and to render the whole trial unfair denies the very essence of the trial. The criminal trial as a whole is an adversarial process, designed to lay before the jury all the evidence and all the arguments that are relevant to its decision. If the verdict could be determined at the jury selection stage, the trial would serve little purpose.
The well‑informed observer, knowing the qualities expected in a good jury (impartiality, representativeness and competence), understands the difference between the roles of the accused and the Crown in the jury selection process as well as the tenuous relationship of peremptory challenges and stand‑asides with the impartiality of the jury and the fairness of the trial as a whole. Considering these factors, a disparity in the means afforded to the parties does not create in this observer an apprehension that the jury is systematically partial because of the operation of the provisions of the Criminal Code .
No evidence was given as to abusive Crown practice. Should Crown abuse occur, it can be adequately dealt with on an individual basis. The court must be mindful that the Charter 's purpose is the unremitting protection of individual rights. The trial judge must ensure that the prosecution is not abusing its power of stand bys and allay any apprehension as to partiality.
Section 686(1)(b)(iv) (formerly s. 613(1)(b)(iii)) only applies to irregularities in procedure which are so serious in nature that they are deemed to be matters of substance which result in a loss of jurisdiction: annulments for jurisdictional grounds are limited to cases where prejudice to the accused has occurred, provided the court had jurisdiction over the class of offences in question. Here, the problem was not one of application of the jury selection rules which could have been saved by s. 686(1)(b)(iv). The jury, together with the trial judge, is the court and if the jury is not properly constituted according to the rules, the court exists no more than if the judge had been unlawfully appointed. The rules were changed and the jury selected pursuant to other rules than those set out in the Code. There was therefore no trial court properly constituted, and the appropriate sanction was annulment.
The trial judge was in a better position to rule on the admissibility of the statements than the Court of Appeal. That court should not have interfered with his determination. The issue of the admissibility of the statement which had been admitted was moot.
Cases Cited
By Cory J.
Referred to: R. v. Grover, [1991] 3 S.C.R. 387, adopting the dissenting reasons in (1990), 56 C.C.C. (3d) 532; R. v. Logiacco (1984), 11 C.C.C. (3d) 374; R. v. Pizzacalla (1991), 5 O.R. (3d) 783.
By Stevenson J.
Considered: Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R 369; R. v. Johnstone (1986), 26 C.C.C (3d) 401; R. v. Cecchini (1985), 22 C.C.C. (3d) 323; R. v. Piraino (1982), 67 C.C.C. (2d) 28; R. v. Ross (1986), 53 C.R. (3d) 81; R. v. Barrow, [1987] 2 S.C.R. 694; referred to: R. v. Greig, [1987] 56 C.R. (3d) 229; R. v. Varga (1985), 18 C.C.C. (3d) 281; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Logan (1988), 46 C.C.C. (3d) 354; Morin v. The Queen (1890), 18 S.C.R. 407; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Mason, [1981] Q.B. 881; R. v. Pizzacalla (1991), 5 O.R. (3d) 783; R. v. Favel (1987), 39 C.C.C. (3d) 378; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Baig, [1987] 2 S.C.R. 537.
By Gonthier J. (dissenting)
Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; MacKay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; R. v. Lippé, [1991] 2 S.C.R. 114; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Texas & Pacific Railway Co. v. Hill, 237 U.S. 208 (1915); Mansell v. The Queen (1857), 8 El. & Bl. 54, 120 E.R. 20; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Johnstone (1986), 26 C.C.C. (3d) 401; Mansbridge v. R., Que. C.A. 200-10-000149-851, October 1, 1991, JE 91-1653; R. v. Ross (1986), 53 C.R. (3d) 81; R. v. Piraino (1982), 67 C.C.C. (2d) 28; R. v. Bolduc (1986), 4 Q.A.C. 201; R. v. Curtis (1989), 74 Nfld. & P.E.I.R. 227; R. v. Foote (1985), 65 N.B.R. 444; Batson v. Kentucky, 476 U.S. 79 (1986); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Pizzacalla (1991), 5 O.R. (3d) 783; R. v. Cloutier (1988), 43 C.C.C. (3d) 35.
Statutes and Regulations Cited
Act to amend the Criminal Code (respecting jurors), S.C. 1917, c. 13, s. 1.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 10 (b), 11 (d), 15 .
Criminal Code, R.S.C. 1970, c. C-34, ss. 246.1, 429, 558, 562(1), (2) [rep. & sub. S.C. 1974-75-76, c. 105, s. 10], (3), 563(1), (2), (3), 567(1) [am. S.C. 1977-78, c. 36, s. 5], (2), 570(1), (2), 577, 613(1)(b)(iv) (now R.S.C., 1985, c. C‑46, ss. 271.1 , 471 , 536(2) , 629 , 633(1) , (2) , (3) , 634(1) , (2) , (3) , 638(1) , (2) , 641(1) , (2) , 650 , 686(1) (b)(iv)).
Criminal Code, S.C. 1917, c. 13, s. 1.
Criminal Code , 1892, S.C. 1892, c. 29, s. 668(9).
Criminal Justice Act 1988, (U.K.) 1988, c. 33.
Juries Act, R.S.N.S. 1989, c. 242, s. 6.
Juries Act, R.S.O. 1980, c. 226, s. 12.
Juries Act, 1825 (Eng.), 6 Geo. 4, c. 50, s. 29.
Juries Act 1974 (Eng.), 1974, c. 23.
Jurors Act, R.S.Q., c. J‑2, s. 15.
Jury Act, R.S.B.C. 1979, c. 210, s. 9.
Jury Act, R.S.M. 1987, c. J30, s. 17.
Jury Act, R.S.P.E.I. 1988, c. J‑5, s. 11.
Jury Act, S.A. 1982, c. J‑2.1, s. 7 .
Jury Act, S.N. 1980, c. 41, s. 17.
Jury Act, S.N.B. 1980, c. J‑3.1, s. 13.
Jury Act, 1981, S.S. 1980-81, c. J‑4.1, s. 6.
Ordinance for Inquests (Eng.), 33 Ed. 1, c. 4.
28 U.S.C. § 1866(c)(2).
Authors Cited
Babcock, Barbara Allen. "Voir Dire: Preserving 'Its Wonderful Power'" (1975), 27 Stan. L. Rev. 545.
Baldwin, John and Michael McConville. Jury Trials. Oxford: Clarendon Press, 1979.
Blackstone, Sir William. Commentaries on the Laws of England, Vol. 4. Edited by William Draper Lewis. Philadelphia: Rees Welsh & Co., 1900.
Bull, Henry H. "The Career Prosecutor in Canada" (1962), 53 J. Crim. L.C. & P.S. 89.
Canada. House of Commons Debates. Vol. V, 7th Sess., 12th Parl., Aug. 9, 1917, p. 4309.
Canada. Law Reform Commission. Report 16. The Jury. Ottawa: Minister of Supply and Services Canada, 1982.
Canada. Law Reform Commission. Working Paper 27. The Jury in Criminal Trials. Ottawa: Law Reform Commission, 1980.
Devlin, Sir Patrick. Trial by Jury. London: Stevens & Sons: 1966.
East, Robert J. "Jury Packing: A Thing of the Past?" (1985), 48 Mod. L.R. 518.
Halsbury's Laws of England. Annual Abridgment 1988. London: Butterworths, 1989.
Hébert, Jean-Claude. "Le contrôle judiciaire de certains pouvoirs de la couronne". In Droit pénal -‑ orientations nouvelles. Cowansville, Qué.: Éditions Yvon Blais Inc., 1987.
Hilbery, Sir Malcolm. Duty and Art in Advocacy. London: Stevens & Sons, 1946.
Jordan, Walter E. Jury Selection. Colorado Springs, Co.: Shepard's/McGraw-Hill, 1980.
McEldowney, John F. "`Stand By For The Crown': an Historical Analysis," [1979] Crim. L.R. 272.
Mewett, Alan W. "The Jury Stand‑By" (1988), 30 Crim. L.Q. 385.
Morgan, Donna C. "Controlling Prosecutorial Powers ‑‑ Judicial Review, Abuse of Process and Section 7 of the Charter " (1986), 29 Crim. L.Q. 15.
Practice Note, [1988] 3 All E.R. 1086.
United Kingdom. Morris Report, Cmnd 2627 (1965).
United Kingdom. Parliament. House of Commons. Fraud Trials Committee. Fraud Trials Committee Report (Roskill Committee). London, H.M.S.O., 1986.
Vennard, Julie and David Riley. "The Use of Peremptory Challenge and Stand by of Jurors and their Relationship to Trial Outcome", [1988] Crim. L.R. 731.
APPEAL from a judgment of the Ontario Court of Appeal (1989), 47 C.C.C. (3d) 250, 31 O.A.C. 357, 68 C.R. (3d) 50, 45 C.R.R. 193, allowing an appeal from acquittal by Kent Dist. Ct. J. sitting with jury (1987), 30 C.R.R. 75 (voir dire). Appeal allowed (Gonthier, McLachlin and Iacobucci JJ. dissenting); s. 563(1) and (2) (now s. 634(1) and (2) ) were inconsistent with s. 11 (d) of the Charter and this violation was not justified under s. 1 .
Timothy E. Breen and James C. Fleming, for the appellant.
Jeff Casey and Elizabeth Rennie, for the respondent.
Graham R. Garton, for the intervener.
//Cory J.//
The judgment of Lamer C.J. and La Forest and Cory JJ. was delivered by
Cory J. -- I have had the privilege of reading the reasons of my colleagues Justice Stevenson and Justice Gonthier. Although I agree with the conclusion of Stevenson J., I reach the result in a somewhat different manner. In my view the implementation of the impugned provisions would lead a reasonable person, fully apprised** of the extensive rights the Crown may exercise in the selection of a jury, to conclude that there was an apprehension of bias.
At the outset, I would agree that the Crown Attorney plays a very responsible and respected role in the criminal justice system and particularly in the conduct of criminal trials. It is true that the Crown never wins or loses a case. Yet Crown Attorneys are mortal. They are subject to all the emotional and psychological pressures that are exerted by individuals and the community. They may act for the best of motives. For example they may be moved by sympathy for a helpless victim, or by contempt for the cruel and perverted acts of an accused; they may be influenced by the righteous sense of outrage of a community at the commission of a particularly cruel and vicious crime. As a rule the conduct and competence of Crown Attorneys is exemplary. They are models for the bar and the community. Yet they, like all of us, are subject to human frailties and occasional lapses.
Crown attorneys have been known to make inflammatory addresses to juries. See R. v. Grover, [1991] 3 S.C.R. 387, adopting the dissenting reasons in (1990), 56 C.C.C. (3d) 532 (Ont. C.A.). They have been known to conduct unfair cross- examinations of parties and witnesses. See R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.). I do not make these observations in order to be critical of Crown Attorneys. Rather they are made to emphasize the very human frailties that are common to all, no matter what the office held.
Apart from challenges for cause the provisions of the Criminal Code provide the Crown with the ability to stand by 48 prospective jurors and to challenge four jurors peremptorily. The accused in this case has but 12 peremptory challenges. I do not suggest that the ideal of absolute equality is required by the Canadian Charter of Rights and Freedoms . However a discrepancy of 4.25 to 1 in favour of the Crown seems to be so unbalanced that it gives an appearance of unfairness or bias against the accused. The impugned provisions permit the Crown to obtain a jury that would at the very least appear to be favourable to its position rather than an unbiased jury.
It is suggested that the Crown Attorney, as an officer of the Court would never act unfairly in the selection of a jury. Yet the most exemplary Crown might be so overwhelmed by community pressure that just such a step might be taken. In R. v. Pizzacalla (1991), 5 O.R. (3d) 783, Morden A.C.J.O, Lacourcière and Catzman JJ.A., it was conceded that as a result of the use made by the Crown Attorney of the stand by provisions in the selection of a jury an apprehension of bias was created. I have cited this case not to illustrate or emphasize a legal principle but rather for what it demonstrates. Namely, that those acting for the Crown do, on occasion demonstrate human frailties and that the impugned section is, on occasion, utilized for the improper purpose of obtaining a jury that appears to be favourable to the Crown.
A petition is frequently made that we not be lead into temptation. The impugned provision of the Criminal Code provides the tempting means to obtain a jury that appears to be favourable to the Crown. The section is so heavily weighed in favour of the Crown that viewed objectively it must give that legal fictional paragon, the reasonable person, fully apprised of the manner in which a jury may be selected, an apprehension of bias. This must be so since the jury, as a result of the selection process, would appear to be favourable to the Crown. It seems to me that so long as this provision exists it may be used and on occasion will be used to select a jury that appears to be favourable to the Crown.
It may well be correct that it would be impossible to prove that a jury selected after the Crown had exercised all its stand bys and peremptory challenges was in fact biased. Nonetheless the overwhelming numerical superiority of choice granted to the Crown creates a pervasive air of unfairness in the jury selection procedure. The jury in the ultimate decision maker. The fate of the accused is in its hands. The jury should not as a result of the manner of its selection appear to favour the Crown over the accused. Fairness should be the guiding principle of justice and the hallmark of criminal trials. Yet so long as the impugned provision of the Code remains, providing the Crown with the ability to select a jury that appears to be favourable to it, the whole trial process will be tainted with the appearance of obvious and overwhelming unfairness. Members of the community will be left in doubt as to the merits of a process which permits the Crown to have more than four times as many choices as the accused in the selection of the jury.
Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed.
It follows that s. 563(2) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 634(2) ) offends s. 11 (d) of the Charter . Since the not unlikely effect of the provision is to ensure a jury that at the very least appears to be favourable to the Crown the section could not conceivably be construed as a reasonable limit that can be justified in a free and democratic society. The section is therefore invalid.
The declaration of invalidity resolves all future problems. However in order to avoid a hiatus the declaration should be suspended for a period of six months. This will provide an opportunity to Parliament to remedy the situation if it considers it appropriate to do so.
The suspended declaration does not leave the defence without a remedy during the interim. The accused may always attempt to demonstrate that there has been an abuse of the stand by provisions by the prosecution. This was the course successfully followed in R. v. Pizzacalla, supra. I would add that neither the fact that relief may be obtained in this way, nor that many juries have in the past been selected without the exercise of any prosecutional abuse, can be accepted as a basis for defeating the constitutional challenge to the section. The fact remains that the impugned section legislates a means of selecting a jury that could appear to be favourable to the Crown. It can never be forgotten that it is the jury that will determine guilt or innocence. To permit by legislation the selection of a jury apparently favourable to the Crown offends not only the Charter but a sense of basic fairness.
Disposition
I would declare s. 563(2) of the Criminal Code (now s. 634(2) ) invalid but suspend the declaration for a period of six months. The appeal should be allowed, the order of the Court of Appeal set aside and the acquittal of the appellant restored.
The constitutional questions should be answered as follows:
1.Are ss. 633 and 634 of the Criminal Code, R.S.C., 1985, c. C-46 [formerly R.S.C. 1970, c. C-34, ss. 562 and 563], inconsistent with ss. 7 , 11 (d) or 15 of the Canadian Charter of Rights and Freedoms ?
A.Sections 634(1) and (2) (formerly R.S.C. 1970, c. C-34, s. 563(1) and (2)) are inconsistent with s. 11 (d) in so far as they provide the Crown with a combination of peremptory challenges and stand bys that is more than four times in excess of the number of peremptory challenges permitted to an accused. It is unnecessary to consider whether this provision violates s. 7 . The allegation of a violation of s. 15 was withdrawn. Sections 633 and 634(3) (formerly ss. 562 and 563(3) ) were not challenged.
2.If the answer to question 1 is affirmative, are ss. 633 and/or 634 [formerly R.S.C. 1970, c. C-34, ss. 562 and/or 563] justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
A. The violation is not justified under s. 1 .
//Gonthier J.//
The reasons of Gonthier, McLachlin and Iacobucci JJ. were delivered by
Gonthier J. (dissenting) -- The appellant raises important questions about a central feature of our criminal law system, the jury, and in particular about the mode of selection of the jury contained in the Criminal Code, R.S.C. 1970, c. C-34. He submits that the disparity between the means of challenge allowed to the accused and the Crown in the jury selection process violates the constitutional guarantee of an impartial tribunal contained in s. 11 (d) of the Canadian Charter of Rights and Freedoms . I have had the benefit of reading the reasons of Justice Stevenson and, while I respectfully find myself in disagreement with them, I adopt his statement of the facts and judgments of the lower courts.
For ease of reference, I reproduce the relevant legislation:
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; ...
11. Any person charged with an offence has the right
...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Criminal Code, R.S.C. 1970, c. C-34
562. (1) An accused who is charged with high treason or first degree murder is entitled to challenge twenty jurors peremptorily.
(2) An accused who is charged with an offence, not being high treason or first degree murder, for which he may be sentenced to imprisonment for more than five years is entitled to challenge twelve jurors peremptorily.
(3) An accused who is charged with an offence that is not referred to in subsection (1) or (2) is entitled to challenge four jurors peremptorily.
563. (1) The prosecutor is entitled to challenge four jurors peremptorily, and may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment.
(2) Notwithstanding subsection (1), the prosecutor may not direct more than forty-eight jurors to stand by unless the presiding judge for special cause to be shown, so orders.
(3) The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.
567. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,
(b) a juror is not indifferent between the Queen and the accused,
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,
(d) a juror is an alien,
(e) a juror is physically unable to perform properly the duties of a juror, or
(f) a juror does not speak the official language of Canada that is the language of the accused ....
(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
570. (1) Where, as a result of challenges and directions to stand by, a full jury has not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and they shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them or shows cause why they should not be sworn.
(2) Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor may require the names of those jurors to be put into and drawn from the box in accordance with section 560, and those jurors shall be challenged, ordered to stand by or sworn, as the case may be, before the names of the jurors who were originally ordered to stand by are called again.
The constitutional questions as they were framed by former Chief Justice Dickson on June 7, 1989, put in issue the constitutionality of ss. 562 and 563 of the Criminal Code (now R.S.C., 1985, c. C-46, ss. 633 and 634 ) with respect to ss. 7 , 11 (d) and 15 of the Charter . The appellant concentrated his argument on s. 563(1) and (2) of the Code, and did not address the validity of ss. 562 and 563(3) . He did not make any submissions as to s. 15 of the Charter either. The sole issue before us remains therefore the consistency of s. 563(1) and (2) of the Criminal Code with ss. 7 and 11 (d) of the Charter . In their factums and in argument, the parties did not make any specific arguments under s. 7 of the Charter , relying instead on the arguments they had made under s. 11 (d).
I agree with the parties that, as regards independence and impartiality of the tribunal in criminal cases, ss. 7 and 11 (d) of the Charter are congruent. Section 11 (d) of the Charter merely enunciates a particular aspect of the general protection against deprivations of the right to life, liberty and security of the person found in s. 7 of the Charter , as had already suggested Lamer J. (as he then was) in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. Arguments made under s. 11 (d) of the Charter apply with equal force to s. 7 . As this case was argued under s. 11 (d) of the Charter , I will concentrate on this section in my reasons, for the sake of convenience.
I --The Constitutionality of s. 563 of the Criminal Code With Respect to s. 11 (d) of the Charter
The History of the Jury Selection Process of the Criminal Code
Stevenson J. has thoroughly explained in his reasons the present system of jury selection and its historical origins. I will only make two brief additional remarks. First of all, the stand by as it evolved in English law was indeed a deferred challenge for cause. The 1305 statute (An Ordinance for Inquests, 33 Ed. 1, c. 4) that abolished peremptory challenges for the Crown enacted that the Crown shall only challenge for cause. Stand bys were created through what established itself as the current interpretation of the statute: the Crown can only challenge for cause, but it need not show cause before the entire jury panel has been exhausted and a complete jury has not been sworn. The Canadian stand by operates slightly otherwise, since the Crown still can exercise peremptory challenges under the Criminal Code . The Code, in s. 570(1) , acknowledges this by permitting peremptory challenges (even by the accused) to be exercised against a stood by juror. The Canadian stand by could therefore be better qualified as a deferred consideration of the prospective juror.
Furthermore, I wish to stress that Parliament, in enacting An Act to amend the Criminal Code (respecting jurors), S.C. 1917, c. 13, did not eliminate stand bys. A maximum of 48 was imposed on the number of stand bys that could be directed by the Crown without leave of the Court, but Parliament did not see fit to abolish stand bys altogether. Some significance must be attached to this, since one of the main reasons why a maximum number was enacted was the fear of abuses by the Crown, even though no record of such abuse was put forward during the House debates. To prevent possible abuses, Parliament limited the number of Crown stand bys and introduced control by the Court of any additional requests, but it certainly saw a beneficial use to them that surpassed the perceived risk for abuse, since they were kept in the Criminal Code .
The Relationship Between Peremptory Challenges and Stand Bys
As a preliminary matter, I have one comment on the central assumption underpinning the appellant's argument: that Crown stand bys are often in effect equivalent to peremptory challenges, since the jury panels are in most jurisdictions so large that they are never exhausted and the need to recall stood by jurors is almost never felt. Yet the various provincial acts either make the size of jury panels discretionary (see for instance Juries Act, R.S.O. 1980, c. 226, s. 12; Jury Act, S.A. 1982, c. J-2.1, s. 7; Jury Act, R.S.B.C. 1979, c. 210, s. 9; Jury Act, R.S.P.E.I. 1988, c. J-5, s. 11; The Jury Act, R.S.M. 1987, c. J30, s. 17; Jury Act, S.N.B. 1980, c. J‑3.1, s. 13 and The Jury Act 1981, S.S. 1980-81, c. J-4.1, s. 6) or leave some discretion to vary the prescribed number (see for instance Jurors Act, R.S.Q.,