R. v. Turpin

R. v. Turpin
Collection
Supreme Court Judgments
Date
1989-05-04
Report
[1989] 1 SCR 1296
Case number
20509, 20510
Judges
Dickson, Robert George Brian; Beetz, Jean; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20509, 20510
Decision Content
R. v. Turpin, [1989] 1 S.C.R. 1296
Sharon Turpin and Latif Siddiqui Appellants
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
indexed as: r. v. turpin
File Nos.: 20509, 20510.
1988: June 16; 1989: May 4.
Present: Dickson C.J. and Beetz, Lamer, Wilson, Le Dain*, La Forest
and L'Heureux-Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Trial by jury -- Accused charged with murder in Ontario requesting trial by judge alone -- Criminal Code requiring, except in Alberta, that an accused charged with murder be tried by judge and jury -- Whether accused entitled to a trial by judge alone ‑‑ Whether ss. 429 and 430 of the Criminal Code violate s. 11 (f) of the Canadian Charter of Rights and Freedoms -- Whether accused may waive their Charter right to a jury trial.
Constitutional law -- Charter of Rights -- Equality before the law ‑‑ Accused charged with murder in Ontario requesting trial by judge alone --Criminal Code requiring, except in Alberta, that accused charged with murder be tried by judge and jury -- Whether accused entitled to a trial by judge alone -- Whether ss. 429 and 430 of the Criminal Code violate s. 15 of the Canadian Charter of Rights and Freedoms .
Constitutional law -- Charter of Rights -- Waiver -- Trial by jury ‑‑ Whether an accused may waive his Charter right to a jury trial -- Canadian Charter of Rights and Freedoms, s. 11 (f).
Criminal law -- Trial by jury -- Murder -- Accused charged with murder in Ontario requesting trial by judge alone -- Criminal Code requiring, except in Alberta, that accused charged with murder be tried by judge and jury -- Whether accused entitled to a trial by judge alone -- Whether ss. 429 and 430 of the Criminal Code violate ss. 11 (f) and 15 of the Canadian Charter of Rights and Freedoms .
Except in Alberta, an accused charged with murder must, under ss. 427 , 429 and 430 of the Criminal Code , be tried by a judge and jury. The appellants and a co-accused, who were charged with first degree murder in Ontario, made a pre-trial motion for a trial by a judge alone. The trial judge granted the motion holding that the effect of s. 11 (f) of the Canadian Charter of Rights and Freedoms was to allow an accused to elect whether to be tried by a judge and jury or by a judge alone. He also held that ss. 427 , 428 and 429 of the Criminal Code violated s. 15 of the Charter because s. 430 gave individuals charged with the same offence in Alberta an election to be tried by a judge alone. At trial, T was acquitted and S and the co-accused were convicted of second degree murder. The Court of Appeal allowed the Crown's appeal on the ground that the trial judge had conducted the trial without jurisdiction, set aside the verdicts and ordered a new trial on the original charge for all three accused. The Court found that there had been no violations of ss. 11 (f) and 15 of the Charter . These appeals are to determine (1) whether ss. 429 and 430 of the Criminal Code , which require a murder trial to be conducted before a judge and jury, violate appellants' right to waive a trial by jury under s. 11 (f) of the Charter ; and (2) whether s. 430 of the Code, which gives accused persons in Alberta (but not in any other province) an election to be tried before a judge alone, violates appellants' equality rights under s. 15 of the Charter .
Held: The appeals should be dismissed.
(1) Section 11 (f)
Sections 429 and 430 of the Code do not violate s. 11 (f) of the Charter . The purpose of s. 11 (f) is to ensure that the interests of the accused are respected. It gives an accused the right to the benefit of a jury trial but does not force a jury trial on an accused if it is not to his benefit. The accused in these circumstances may waive the right. The accused, and not the courts, will decide which course is in his best interests in any given case. This interpretation accords with this Court's intention to interpret Charter rights in a broad and generous manner designed to ensure that those protected receive the full benefit of the protection. Further, to prevent an accused from waiving his right to the benefit of a jury trial would be to elevate the interests of society over the interests of the individual. Here, the appellants clearly waived their right to a jury trial. But a constitutional right to waive is not a constitutional right to elect. It cannot defeat the operation of s. 429 of the Code, which requires the appellants to be tried by a judge and jury. Nothing in s. 11 (f) gives the appellants a constitutional right to elect their mode of trial or a constitutional right to be tried by judge alone so as to put the mandatory jury trial provisions of the Criminal Code into conflict with s. 11 (f) of the Charter . When the appellants waived their Charter rights to a jury trial, their reliance on the Constitution ceased and the provisions of the Criminal Code governed.
Further, the appellants were not entitled to a declaration, under s. 24(1) of the Charter , that s. 429 of the Code did not apply to them on the ground that they had waived their Charter right to a jury trial. A section 24(1) remedy is available only where a Charter right of an accused has been infringed or denied. Section 429 of the Code does not infringe s. 11 (f) of the Charter as there is no constitutional right to a non-jury trial included in s. 11 (f).
(2) Section 15
The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others. Here, the impugned provisions denied the appellants equality before the law. The appellants, who wished to be tried by a judge alone, were precluded from receiving such a trial by the combined force of ss. 427 and 429 of the Criminal Code . Section 430 of the Code, on the other hand, permits those charged with the same offence in Alberta to be tried by a judge alone. The impugned provisions of the Code treated the appellants and those charged with the offences listed in s. 427 more harshly than those charged with the same offences in the province of Alberta who, because of s. 430 , have an opportunity to be tried by judge alone if they deem this to be to their advantage. However, while the distinction created by s. 430 resulted in a violation of appellants' rights to equality before the law, such distinction was not discriminatory in its purpose or effect and, therefore, did not violate s. 15 of the Charter . Persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a disadvantaged group in Canadian society within the contemplation of s. 15 .
Cases Cited
Applied: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; distinguished: Singer v. United States, 380 U.S. 24 (1965); Adams v. United States ex rel. McCann, 317 U.S. 269 (1942); R. v. Brown (1986), 19 A. Crim. R. 136; Patton v. United States, 281 U.S. 276 (1930); R. v. Burnshine, [1975] 1 S.C.R. 693; disapproved: R. v. Crate (1983), 7 C.C.C. (3d) 127; discussed: Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Martin (1985), 27 C.R.R. 193; referred to: R. v. Hamilton (1986), 30 C.C.C. (3d) 257, leave to appeal refused April 9, 1987, [1987] 1 S.C.R. ix; R. v. Frohman (1987), 35 C.C.C. (3d) 163; R. v. Hardiman (1987), 35 C.C.C. (3d) 226; Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577; R. v. S. (1988), 42 C.C.C. (3d) 41, leave to appeal granted September 30, 1988, [1988] 2 S.C.R. ix; R. v. Emile (1988), 42 C.C.C. (3d) 408; R. v. Tremblay (1985), 20 C.C.C. (3d) 454; R. v. Bailey (1985), 17 C.R.R. 1; R. v. Punch (1985), 22 C.C.C. (3d) 289; R. v. Ertel (1987), 20 O.A.C. 257; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Bryant (1984), 16 C.C.C. (3d) 408; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Collins, [1987] 1 S.C.R. 265; Clarkson v. The Queen, [1986] 1 S.C.R. 383; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Drybones, [1970] S.C.R. 282; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III [now R.S.C., 1985, App. III], s. 1(b).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (f), 15 , 24(1) .
Commonwealth of Australia Constitution Act, s. 80.
Constitution Act, 1982, s. 52 .
Constitution of the United States, Art. III, Sixth Amendment.
Criminal Code, R.S.C. 1970, c. C-34, ss. 426, 427 [am. 1972, c. 13, s. 33; am. 1974-75-76, c. 93, s. 37; c. 105, s. 29], 428, 429, 430, 520(3), 618(2) [am. 1974-75-76, c. 105, s. 18(2)].
Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 64.
Authors Cited
Black's Law Dictionary, 5th ed. St. Paul, Minn.: West Publishing Co., 1979, "waiver".
Blackstone, Sir William. Commentaries on the Laws of England, vol. 3, 8th ed., 1778.
Canada. Law Reform Commission. The Jury (Report 16). Ottawa: Law Reform Commission, 1982.
Canada. Law Reform Commission. The Jury in Criminal Trials (Working Paper 27). Ottawa: Law Reform Commission, 1980.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Jowitt's Dictionary of English Law, vol. 2, 2nd ed. By John Burke. London: Sweet & Maxwell, 1977, "waiver".
Lepofsky, David and Hart Schwartz. "Constitutional Law -- Charter of Rights and Freedoms -- Section 15 -- An Erroneous Approach to the Charter 's Equality Guarantee: R. v. Ertel" (1988), 67 Can. Bar. Rev. 115.
Stephen, Sir James Fitzjames. A History of the Criminal Law of England, vol. I. London: MacMillan, 1883.
Whitebread, Charles and Christopher Slobogin. Criminal Procedure: An Analysis of Cases and Concepts, 2nd ed. Mineola, N.Y.: Foundation Press Inc., 1986.
APPEALS from a judgment of the Ontario Court of Appeal (1987), 22 O.A.C. 261, 36 C.C.C. (3d) 289, 60 C.R. (3d) 63, 30 C.R.R. 193, allowing the Crown's appeal from the acquittal of the accused on a charge of first degree murder. Appeals dismissed.
Michael D. Edelson and Mark Ledwell, for the appellant Siddiqui.
Donald B. Bayne, for the appellant Turpin.
W. J. Blacklock and K. L. Campbell, for the respondent.
S. R. Fainstein, Q.C., Irit Weiser and Michael Zigayer, for the intervener the Attorney General of Canada.
Robert Houston, Q.C., for the intervener the Attorney General of Manitoba.
Joseph J. Arvay, Q.C., for the intervener the Attorney General of British Columbia.
//Wilson J.//
The judgment of the Court was delivered by
WILSON J. -- The appellants claim in these appeals that certain provisions of the Criminal Code, R.S.C. 1970, c. C-34, ss. 426-430, which require their trial for murder to be conducted before a judge and jury, violate their right to waive a trial by jury under s. 11 (f) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1 . They also claim that s. 430 of the Criminal Code which gives accused persons in Alberta, but not in any other province, an election to be tried before a judge alone violates their equality rights under s. 15 of the Charter and cannot be justified under s. 1 .
The following are the relevant provisions of the Code and of the Charter :
The Criminal Code
426. Every superior court of criminal jurisdiction has jurisdiction to try any indictable offence.
427. Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than
(a) an offence under any of the following sections, namely,
(i) section 47,
(ii) section 49,
(iii) section 51,
(iv) section 53,
(v) section 62,
(vi) section 75,
(vii) section 76, or
(viii)section 218,
(b) the offence of being an accessory after the fact to high treason or treason or murder,
(c) an offence under section 108 by the holder of a judicial office,
(d) the offence of attempting to commit any offence mentioned in subparagraphs (a)(i) to (vii), or
(e) the offence of conspiring to commit any offence mentioned in paragraph (a).
428. Subject to this Act, every superior court of criminal jurisdiction and every court of criminal jurisdiction that has power to try an indictable offence is competent to try an accused for that offence
(a) if the accused is found, is arrested or is in custody within the territorial jurisdiction of the court; or
(b) if the accused has been committed for trial to, or has been ordered to be tried by
(i)that court, or
(ii)any other court, the jurisdiction of which has by lawful authority been transferred to that court.
429. Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury.
430. Notwithstanding anything in this Act, an accused who is charged with an indictable offence in the Province of Alberta may, with his consent, be tried by a judge of the superior court of criminal jurisdiction of Alberta without a jury.
I note that the above s. 430 was repealed by the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 64, and the following substituted in its place:
430. (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 427 may, with his consent and that of the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.
(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1), such consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
The new section did not, however, come into force until December 4, 1985 after the trial judge had ruled in this matter.
The Canadian Charter of Rights and Freedoms
11. Any person charged with an offence has the right
. . .
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
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.
1. The Facts
The appellants Sharon Turpin and Latif Siddiqui were jointly charged along with Whitley Clauzel with the first degree murder of Paul Turpin. Paul Turpin was Sharon Turpin's husband and he was killed on February 8, 1983. The appellant Sharon Turpin made a pre-trial motion on April 29, 1985 under s. 520(3) of the Criminal Code to be tried separately from the two co-accused claiming that she would be prejudiced by the introduction at her trial of statements made by them. On May 3, 1985 the trial judge granted the motion for a separate trial on the condition that Sharon Turpin would only be entitled to a separate trial if she was tried by a judge and jury and not by a judge alone. The trial judge stated:
Without repeating the evidence, I would conclude that before a jury, that is, if presented before a jury such statements would be clearly prejudicial to the applicant as they are totally inadmissible against her. I would therefore conclude that the ends of justice require, or would require that an order be made that she be tried separately if she is to be tried by a jury . . . .
On May 9, 1985 the trial judge ruled on a motion made by the appellants and the co-accused Whitley Clauzel for a trial by a judge alone. The trial judge held that the effect of s. 11 (f) of the Charter was to allow the accused to elect whether to be tried by a judge and jury or by a judge alone. He also ruled that ss. 427 , 428 and 429 of the Criminal Code violated s. 15 of the Charter because s. 430 gave individuals charged with the same offence in Alberta an election to be tried by a judge alone. All three forthwith elected to be tried by a judge alone and the trial proceeded.
On July 25, 1985 the trial judge acquitted the appellant Sharon Turpin and convicted the appellant Latif Siddiqui and the co-accused Whitley Clauzel of second degree murder. The Crown appealed and on August 20, 1987 the Ontario Court of Appeal allowed the appeal on the ground that the trial judge had conducted the trial without jurisdiction. The Court of Appeal set aside the verdicts and ordered a new trial for first degree murder for all three accused. The appellants appealed to this Court as of right pursuant to s. 618(2) of the Criminal Code .
2. The Courts Below
Ontario High Court
On May 9, 1985 Sirois J. granted the appellants' motion for a trial by a judge alone based on his interpretation of their rights under ss. 11 (f) and 15 of the Charter : (1985), 18 C.R.R. 323. He found that there was an implied right in s. 11 (f) to waive the benefit of a jury trial and to have a trial by judge alone. He stated at p. 328:
Since the enactment on April 17, 1982, of the Constitution Act, 1982 s. 11 (f) of the Charter has given any person charged in the case of an offence where the punishment is imprisonment for five years or more, the right to the benefit of the jury trial or impliedly the right to waive such jury trial and elect to be tried by a judge alone. That person may insist upon the benefit of a trial by a jury that cannot be removed by a section of the Code as stated in R. v. Bryant, supra, but that same person may waive such a benefit and choose to be tried by a judge alone. Section 11 (f) of the Charter therefore, in my opinion, is the exception referred to in s. 429 of the Criminal Code which starts by saying: "Except where otherwise provided expressly by law".
Sirois J. also held in the alternative that the appellants were entitled to the benefit of a trial by a judge alone under s. 15 of the Charter because such benefit was provided by s. 430 of the Criminal Code then in force to those in the same position as the appellants in the province of Alberta. Sirois J. quoted s. 15 of the Charter and concluded at p. 331:
Section 52 of the Constitution Act, 1982 states that to the extent of the inconsistency of that section, it is of no force and effect if it does not pass step No. 1, which is the purpose test, and its effects also offend the rights and therefore the effect test is not met by the legislation, the onus is then on the Crown to show that ss. 428 and 429 constitute a reasonable limit that is reasonably justifiable in a free and democratic society, but I find that the Crown has failed to do so. The Crown has not met the burden of persuading me that ss. 428 , 429 and 430 are a reasonable limit on the right of the Ontario accused to equal benefit of the law as can be demonstrated [sic] justified in a free and democratic society.
Therefore, under s. 52 of the Constitution Act, 1982 , ss. 429 and 428 , to the extent of that inconsistency, are of no force or effect to prevent the accused from exercising the right of election granted by s. 430 to the citizens of Alberta. I will therefore grant the accused their application, subject to their electing today, pursuant to the wording analogous to the one in s. 492 , and counsel I am referring to the one in s-s. (3), a re-election will take this form "You have elected or are deemed to have elected to be tried by a court composed by a judge and jury. Do you now elect to be tried by a judge without a jury?"
Ontario Court of Appeal
The Ontario Court of Appeal (Martin, Grange and Tarnopolsky JJ.A.) allowed the Crown's appeal, finding that there were no violations of ss. 11 (f) or 15 of the Charter : (1987), 22 O.A.C. 261, 36 C.C.C. (3d) 289, 60 C.R. (3d) 63, 30 C.R.R. 193 (hereinafter cited to C.C.C.) They stated at p. 293:
Even if we assume that trial by jury in a murder case is a benefit only to the accused (and not also to the Crown representing the public) we do not see how he can waive that benefit for two reasons. First, the Criminal Code at the relevant time provided for no other method of trying a murder case and secondly, the granting of the benefit does not mean the converse, namely that the accused necessarily has a right to decline the benefit or to have the benefit of not being tried by jury.
They cited the American authorities on this matter with approval and stated at pp. 294-95:
We agree that in this country, also, the government (i.e., the Crown) has a legitimate interest in the method of trial of the most heinous of crimes. The Criminal Code has decreed that it will be by jury. Until the amendment of December, 1985, there was no other method provided for outside Alberta. Section 11 (f) of the Charter simply assured that trial by jury for murder (and other serious crimes) would continue as a right of the accused. It in no way affected the similar right in the Crown nor granted any unilateral right of waiver in the accused. Indeed, there was no right of waiver even with the consent of the Crown until the enactment in December, 1985, of the new s. 430 of the Code.
In finding that there was no violation of s. 15 of the Charter the Court of Appeal followed the three step test set out in R. v. Ertel (1987), 20 O.A.C. 257 (Ont. C.A.) The Court of Appeal first rejected the Crown's submission that a class protected under s. 15 must be defined by some personal characteristic and found that there was a class of individuals here who were treated differently. The Court of Appeal stated at p. 296:
In the case now before the court, therefore, the question is: does the law treat that class of persons who are charged with murder in Ontario differently from the class of persons charged with murder in Alberta? The effect of ss. 429 and 430 of the Criminal Code is to treat individuals charged with murder in Alberta differently from their counterparts in other provinces because the latter class of persons is limited to a trial by a judge and a jury while the former class can, with the agreement of the judge, be tried by a judge alone.
They then found that the identified class of accused persons in Alberta was similarly situated to accused persons charged with the same offences in the rest of Canada. They stated at p. 298:
Although the historical difficulties of obtaining 12-person juries in sparsely settled territories may have been a rational basis for deciding that the two classes were not similarly situated at that time, and although such historical differences may be a factor in the determination of the third step in a s. 15(1) analysis or in a s. 1 justification, it cannot be the basis for concluding that in 1985 the class of persons charged with murder in Ontario was not similarly situated to the class of persons charged with murder in Alberta. This conclusion is supported by the decision that was made by Parliament in 1985 to change s. 430 so as to provide the same right of election throughout Canada, although only with the consent of the Crown.
The Court of Appeal then went on to address the question whether the difference in treatment was discriminatory. They first found that accused persons outside Alberta suffered a disadvantage in not having the right to elect their mode of trial. They stated at pp. 299-300:
Mr. Gold, on behalf of the respondents in this case, suggested that it is the having of the option, "the ability to elect one's mode of trial" that was a benefit which accused persons charged with murder in Alberta had over accused persons charged with murder elsewhere in Canada. We have to agree with that submission. A choice as to having or not having a jury trial (even though limited by the overriding determination by the trial judge), based upon the advantages of one mode of trial over the other because of a wide range of factors, such as: the nature and circumstances of the killing, the amount of publicity, the reaction in the community, the size of the community from which the jury is being drawn and even the preference of defence counsel with respect to trying to convince a jury or a judge of the defence version of the facts (or leave them with a reasonable doubt), indicates that having that choice must be considered a benefit. The absence of that benefit in Ontario must be considered a disadvantage.
The next step, then, is to determine whether the disadvantage is "so unfair as to be discriminatory, having regard to the purpose and effect of the legislation". Is the disadvantage so "invidious" or "unfair" or "irrational" as to be discriminatory? In answering this question it is important to keep in mind that in this case the difference in the classes compared is a geographic one, that it arises not so much because of a decision to deny a benefit in nine provinces as to continue a benefit in one, and that for historical reasons.
The Court of Appeal concluded that the disadvantage was not invidious, unfair or irrational. They noted at p. 301:
Because of the general jurisdiction of the provinces over the administration of justice, including the prosecution of the criminal laws enacted by Parliament, absolute uniformity of criminal procedure as it applies throughout Canada, may be impossible or undesirable, especially given historical differences.
Canada has a long history of substantial variations in the procedure applicable in various provinces with respect to the trial of criminal cases.
After noting variations in the criminal trial procedures available under the Criminal Code in different provinces, the Court of Appeal concluded at p. 302:
If any of these variations were found to be an advantage, would Parliament have had to extend them to every other province? It seems unreasonable to so require. If it is unreasonable to so require, can one conclude that there is such an "invidious" or "unfair" or "irrational" distinction with respect to the requirement for jury trials for charges of murder in all provinces except Alberta as to amount to "discrimination" for purposes of s. 15 ? It cannot be so. We would have to conclude, therefore, that the limited option of a non-jury trial of a murder charge in Alberta, whereas that option was not available in any of the other provinces or the two Territories, did not amount to discrimination in the sense of a denial of equal benefit of the law pursuant to s. 15(1) of the Charter .
They stated that it was not necessary to address the issue of justification under s. 1 of the Charter but added at p. 302:
However, if the conclusion had been reached in this case that s. 15(1) was violated, then for the same reasons concerning geographical distinctions in a federal system, we would have held that whatever disadvantage the respondents may have had in 1985, was the result of a reasonable limitation which was demonstrably justified in a free, democratic and federally organized society. [Emphasis in original.]
On the appellants' appeals to this Court as of right the Chief Justice set the following questions for both appeals:
1.Do ss. 429 and 430 of the Criminal Code (as they read in May, 1985) requiring in Ontario a jury trial in murder cases, contravene the rights and freedoms guaranteed by s. 11 (f) of the Canadian Charter of Rights and Freedoms by denying the right of an accused person to waive the benefit of the guarantee by trial by jury.
2.If the answer to question 1 is affirmative, are ss. 429 and 430 of the Criminal Code (as they read in May, 1985) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
3.Do ss. 429 and 430 of the Criminal Code (as they read in May, 1985) requiring in Ontario in 1985 a jury trial in murder cases, but permitting in Alberta in 1985 a non-jury murder trial, infringe or deny the rights and freedoms guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms ?
4.If the answer to question 3 is affirmative, are ss. 429 and 430 of the Criminal Code (as they read in May, 1985) justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?
3. The issues
Section 11 (f) of the Charter
The appellants' claims require an examination of the nature and purpose of the guarantee of a jury trial contained in s. 11 (f) of the Charter . The right of the accused to receive a trial before a judge and jury of his or her peers is an important right which individuals have historically enjoyed in the common law world. The jury has often been praised as a bulwark of individual liberty. Sir William Blackstone, for example, called the jury "the glory of the English law" and "the most transcendent privilege which any subject can enjoy": Blackstone, Commentaries on the Laws of England (8th ed. 1778), vol. 3, at p. 379.
The jury serves collective or social interests in addition to protecting the individual. The jury advances social purposes primarily by acting as a vehicle of public education and lending the weight of community standards to trial verdicts. Sir James Stephen underlined the collective interests served by trial by jury when he stated:
. . . trial by jury interests large numbers of people in the administration of justice and makes them responsible for it. It is difficult to over-estimate the importance of this. It gives a degree of power and of popularity to the administration of justice which could hardly be derived from any other source.
J. Stephen, A History of the Criminal Law of England (1883), vol. I, at p. 573.
In both its study paper (The Jury in Criminal Trials (1980), at pp. 5-17) and in its report to Parliament (The Jury (1982), at p. 5) the Law Reform Commission of Canada recognized that the jury functions both as a protection for the accused and as a public institution which benefits society in its educative and legitimizing roles.
Accepting then that the jury serves both individual and societal interests, the question we have to answer is: what interests are protected by s. 11 (f) of the Charter ?
I start with the proposition that, whatever other interests s. 11 (f) of the Charter may be designed to protect, it is certainly designed to protect the interests of those charged with criminal offences and to place corresponding duties on the state to respect such interests. In Mills v. The Queen, [1986] 1 S.C.R. 863, Lamer J., in his analysis of the right to be tried within a reasonable time under s. 11 (b) of the Charter , referred to the separate individual and collective interests served by timely trials but concluded at p. 917 that the real purpose of the s. 11 (b) right was to protect the interests of the individual and not of society:
Section 11 (b) enunciates an individual right to be tried within a reasonable time for all persons charged with an offence. I wish to emphasize at the outset that this right is, in its nature, an individual right and has no collective rights dimension. While society may well have an interest in the prompt and effective prosecution of criminal cases, that interest finds no expression in s. 11 (b), though evidently, incidental satisfaction. The section is primarily concerned with ensuring respect for the interests of the individual.
This conclusion seems a sound one. The state can legitimately advance its interests in jury trials through legislation, e.g. the impugned provisions of the Criminal Code , but those interests are not embraced in a section of the Charter designed to protect the individual. Moreover, to the extent such legislation might infringe interests of the individual protected by s. 11 (f), it would have to be justified under s. 1 of the Charter . What then is the range of the accused's interests which are protected by s. 11 (f)?
(a) The "Benefit" of Trial by Jury
Section 11 (f) accords to individuals charged with an offence the right to the "benefit" of a trial by jury in certain prescribed circumstances. A crucial question is the significance of the word "benefit" in this context.
The word "benefit" could be held to have a declarative or deeming function. The legislature, in other words, could have proceeded on the basis of a pre-supposition that a jury trial is always a benefit to the accused regardless of whether in a particular case it is in fact a benefit or not. This seems to be the approach taken at trial by Van Camp J. in R. v. Martin (1985), 27 C.R.R. 193 (Ont. H.C.) and by the Court of Appeal in this case. Both Van Camp J. and the Court of Appeal reviewed the historical role of the jury and concluded that, because it had played a fundamental role in the administration of justice and had discharged the function of defending individual liberty in the past, trial by jury must be a benefit even to those accuseds who do not want it. Van Camp J. quoted at p. 198 a passage from the judgment of Blair J.A. in R. v. Bryant (1984), 16 C.C.C. (3d) 408 (Ont. C.A.), at p. 423:
This history demonstrates that the right of trial by jury is not only an essential part of our criminal justice system, but also is an important constitutional guarantee of the rights of the individual in our democratic society.
Van Camp J. then continued:
In light of that philosophical and historical context, it seems to me that the thrust of s. 11 is to entrench the right to benefit of trial by jury. The courts have recognized that in lesser offences it may be waived. The Code has recognized that, but the Code has made it mandatory for this the most serious of crimes.
In this context, it cannot be said that the Code had infringed the Charter . When one looks also at the philosophical and historical concept, in my opinion, one should not look for inferences which would give the right of choice and remove that right to trail by jury in the most serious of crimes.
Similarly, the Court of Appeal in this case quoted at pp. 294-95 from the decision of the United States Supreme Court in Singer v. United States, 380 U.S. 24 (1965), at p. 36:
In light of the Constitution's emphasis on jury trial, we find it difficult to understand how the petitioner can submit the bald proposition that to compel a defendant in a criminal case to undergo a jury trial against his will is contrary to his right to a fair trial or to due process. A defendant's only constitutional right concerning the method of trial is to an impartial trial by jury. We find no constitutional impediment to conditioning a waiver of this right on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury -- the very thing that the Constitution guarantees him. The Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result.
The Court of Appeal then concluded that the appellants had no right to waive their Charter right to a jury trial.
The word "benefit", on the other hand, can just as easily be read as importing a qualification on the right to a jury trial, a qualification which recognizes the reality that in some circumstances a jury trial may not be a benefit and may even be a burden on the accused. As Professor Charles Whitebread and Christopher Slobogin observe in their treatise Criminal Procedure: An Analysis of Cases and Concepts (2nd ed. 1986), at p. 607:
The defendant may want to waive a jury trial when he feels that a jury panel composed of members of the community will be prejudiced against his case. This may be especially true when the defendant's alleged crime has received wide publicity or is particularly gruesome. The defendant may also feel that a judge would be less apt than a jury to draw negative conclusions from the defendant's appearance or manner of speech. Or, he may merely prefer that the arbiter of his fate be one person trained in the law rather than twelve laypersons.
In other words, the intent of the provision could be to guarantee an accused the benefit of a jury trial where a jury trial is in fact from his or her perspective a benefit but not to impose it on the accused when it is not. In my view, this latter interpretation of the s. 11 (f) right is more in tune with the purpose of the provision if that purpose is correctly perceived as being to protect the interests of the accused. The accused's interests would seem to be better served by construing s. 11 (f) as conferring a "benefit" on the accused which can be waived by him if it seems to be in his best interests to do so. To compel an accused to accept a jury trial when he or she considers a jury trial a burden rather than a benefit would appear, in Frankfurter J.'s words, "to imprison a man in his privileges and call it the Constitution": see Adams v. United States ex rel. McCann, 317 U.S. 269 (1942), at p. 280. I fully recognize that a right to waive a jury trial is not specifically spelled out in s. 11 (f); it has to be implied. Nevertheless, it seems to me that this is the only approach to the interpretation of s. 11 (f) which attaches real significance to the presence of the word "benefit" in the section and at the same time provides the individual with the full measure of the protection which it appears the accused was intended to receive under the section: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295.
This interpretation of the word "benefit" is also supported by the French text which reads:
11. Tout inculpé a le droit:
. . .
(f) sauf s'il s'agit d'une infraction relevant de la justice militaire, de bénéficier d'un procès avec jury lorsque la peine maximale prévue pour l'infraction dont il est accusé est un emprisonnement de cinq ans ou une peine plus grave;
Sirois J. noted at trial the difference between the English and French texts and stated at p. 325:
In French the wording is slightly different and it speaks of the person's right to benefit from a trial with a jury.
To the extent that resort to the French text helps to resolve an ambiguity in the English text and particularly in a way which would appear to reflect better the purpose underlying the right, it seems to me that it should be adopted. The provision should be read as giving the accused the right to benefit from a trial by jury. In R. v. Collins, [1987] 1 S.C.R. 265, for example, my colleague Lamer J. adopted the French text of s. 24(2) of the Charter stating at p. 287:
As one of the purposes of s. 24(2) is to protect the right to a fair trial, I would favour the interpretation of s. 24(2) which better protects that right, the less onerous French text.
I would apply the same reasoning in construing s. 11 (f) and adopt the less onerous French text here also.
The choice is between an interpretation of s. 11 (f) which would allow a jury trial to be forced upon an unwilling accused in the guise of a "benefit" and an interpretation which would permit the accused to waive the "benefit"