R. v. Lee

R. v. Lee
Collection
Supreme Court Judgments
Date
1989-12-21
Report
[1989] 2 SCR 1384
Case number
20235
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 20235
Decision Content
R. v. Lee, [1989] 2 S.C.R. 1384
Allen Harry Lee Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario and
the Attorney General of Quebec Interveners
indexed as: r. v. lee
File No.: 20235.
1989: March 22; 1989: December 21.
Present: Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Charter of Rights -- Right to trial by judge and jury (s. 11 (f)) -- Charter right limited by stipulation that the maximum sentence for crime be at least five years' imprisonment -- Criminal Code (s. 526.1 ) removing right to jury on subsequent trial if accused failing to appear without legitimate reason ‑‑ Accused charged with offence carrying maximum penalty of life imprisonment -- Trial by judge and jury elected but accused failing to appear -- Jury trial denied -- Whether or not s. 526.1 of the Criminal Code infringing on s. 11 (f) of the Charter -- If so, whether or not infringement justified -- Canadian Charter of Rights and Freedoms, ss. 1 , 11 (f) --Criminal Code, R.S.C. 1970, c. C-34, s. 526.1.
Appellant was charged and subsequently convicted of an offence carrying a maximum punishment of life imprisonment. He elected trial by judge and jury. Appellant's counsel withdrew before the date set for jury selection explaining that he had had no contact with the appellant for some time, that he did not have the appellant's current address or telephone number, and that he would advise the appellant of his withdrawal. Neither appellant nor anyone on his behalf appeared on the dates set for the selection of a jury and for the commencement of the trial. Appellant was arrested, appeared before the court, and after an adjournment, appeared with new counsel.
Argument was later heard as to whether or not appellant was still entitled to a jury trial. The appellant's excuse for not appearing was that he had been advised by his former lawyer's office that he need not appear for the jury selection and that he had received no notification concerning his lawyer's withdrawal from the case. The trial judge refused to accept this as a legitimate excuse without corroboration. He held that s. 526.1 did not violate s. 11 (f) of the Canadian Charter of Rights and Freedoms and ruled that the appellant was no longer entitled to a jury trial.
The appellant appealed to the British Columbia Court of Appeal on the issue of the constitutionality of s. 526.1 . Evidence regarding the degree of disruption and financial cost of accused persons failing to appear for jury selection was introduced in a companion case (Re McNabb and The Queen), for the purpose of establishing s. 526.1 as a reasonable limit on s. 11 (f) under s. 1 of the Charter . The British Columbia Court of Appeal dismissed the appeal for the reasons it gave in Re McNabb and The Queen in which it held that s. 526.1 did not violate s. 11 (f) of the Charter . The appellant and McNabb concurrently sought and were granted leave to appeal to this Court. The Attorney General of British Columbia subsequently directed a stay of proceedings in Re McNabb and The Queen and McNabb discontinued his appeal to this Court.
The constitutional questions before this Court queried (1) whether s. 526.1 of the Criminal Code violates the right to a jury trial under s. 11 (f) of the Charter , and (2) if so, whether it is justified under s. 1 .
Held (Wilson and Sopinka JJ. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Lamer, La Forest and Cory JJ.: For the reasons given by Wilson J., s. 526.1 of the Criminal Code restricts s. 11 (f) of the Charter .
Non-attendance may properly lead to an inference that one has waived the right to be present, but not necessarily that one has waived the right to be tried by a jury. The only way to truly waive the right to be tried by jury is to re-elect or to elect differently or enter a guilty plea.
The rationale for the section lies in the "cost" to potential jurors and to the criminal justice system in terms of economic loss and of the disaffection created in the community for the system of criminal justice. This purpose is much broader than being merely a punishment because failure to appear at trial is already a criminal offence. Its importance therefore cannot be measured solely by reference to the amount of money involved. The cost, and by implication the importance of the objective, must be measured in terms of the overall "cost", both in the sense of economic loss and disruption to lives, and in the sense of confidence and respect for the system, to the individuals selected for jury duty and to society as a whole.
The objective of the section is rationally connected to the concern over diminishing public respect and confidence in the system of criminal justice because of the failure of accused persons to attend for their trials. It is also rationally connected to the objective of deterring accused persons from not attending for their trials. The section impairs the right as little as possible in order to achieve the legislative objective. Therefore, it is proportionate to the objective of maintaining respect for the system.
Per Gonthier J.: Section 526.1 of the Criminal Code denies a trial by jury only where the accused has failed to appear without legitimate excuse or where the Attorney General does not require that the trial be a jury trial. The section was designed to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process -- clearly a valid legislative purpose.
The effect of s. 526.1(1)(a) did not offend s. 11 (f) of the Charter . The exercise of a right under s. 11 (f) of the Charter is completed when the accused appears in court at the requisite time and not when the accused elects trial by jury. An accused who fails to appear for no legitimate reason and who is denied a jury trial under s. 526.1(1) (a) may not assert that he has been deprived of his right under s. 11 (f) of the Charter . Charter rights must not be taken lightly either by the state or by the citizens whom they are meant to protect. The accused has, by his own conduct, failed to exercise his right under s. 11 (f). It was illusory to speak in such circumstances of state denial of a Charter right.
Per Wilson and Sopinka JJ. (dissenting): Section 11 (f) of the Charter clearly and unambiguously states that the only qualifications on the right to a jury trial are that the maximum punishment for the offence be at least five years' imprisonment or that the offence be under military law tried before a military tribunal. Appellant was charged with an offence punishable by life imprisonment and therefore protected by s. 11 (f).
Section 11 (f) of the Charter and s. 429 (now s. 471 ) of the Code grant parallel rights to a jury trial. Section 526.1 was only intended to deal with the right under the Code and was not designed to deal with the Charter right to a jury trial.
Section 526.1 had a clearly valid legislative purpose, namely, to improve the operation of the Bail Reform Act by ensuring that accused persons released on bail showed up for their trials. It was designed to protect the administration of justice against delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process. An ancillary objective may have been deterrence and punishment in that an accused who elects a jury trial and fails to attend without a legitimate excuse loses his right to a jury trial in addition to being liable for the separate offence of failing to appear (s. 133(2), now s. 145(2)).
The effect of s. 526.1 was that, if an accused fails to appear for trial without a legitimate excuse, the accused shall not be tried by a court composed of a judge and jury. It accordingly infringed s. 11 (f) of the Charter .
The failure to appear did not meet the requirements for an effective waiver. Appellant was not shown to have clearly and unequivocally waived his Charter right or to have been aware that the consequences of his conduct in failing to appear for jury selection and the commencement of his trial would be or could be the loss of his Charter right to a jury trial.
The want of a legitimate excuse for failing to appear disclosed a lack of respect for the administration of justice but did not constitute an abandonment of his Charter right to one form of trial as opposed to another. There was no direct connection between the accused's failure to appear without a legitimate excuse and the form of his trial. Appellant's failure to appear for the selection of a jury which forms part of his trial for purposes of s. 526.1 , may have been more directly tied to the form of trial guaranteed him by the Charter but it too did not manifest a clear and unequivocal intention to forego the right to trial by jury which he had already elected and assiduously maintained despite his failure to appear.
It was not the conduct of the accused, either by voluntarily waiving his right or failing to exercise it, that caused the loss of the appellant's s. 11 (f) right. It was s. 526.1 of the Criminal Code which purported to deprive him of it. The section could not stand because it could not be justified under s. 1 .
The evidence disclosed that failing to attend for trial was not a major problem. Respondent failed to discharge the onus of establishing that s. 526.1 meets a pressing and substantial concern. Moreover, its objectives of reducing administrative inconvenience and expense were insufficient to override a vital constitutional right. Nor did the provision impair the right as little as possible.
Cases Cited
By Gonthier J.
Referred to: R. v. Allan (1982), 2 C.R.R. 46; R. v. Gladue (1982), 2 C.C.C. (3d) 175; R. v. Ramirez (1982), 9 W.C.B. 107; R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27.
By Wilson J. (dissenting)
R. v. Gladue (1982), 2 C.C.C. (3d) 175; R. v. Allan (1982), 2 C.R.R. 46; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Bryant (1984), 16 C.C.C. (3d) 408; Re Voisard and the Queen (1978), 43 C.C.C. (2d) 570; R. v. Ramirez (1982), 9 W.C.B. 107; R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27, 190 A.P.R. 27; R. v. Crate (1983), 7 C.C.C. (3d) 127; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Mills, [1986] 1 S.C.R. 863; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Tarrant (1984), 13 C.C.C. (3d) 219; R. v. Rogers, [1984] 6 W.W.R. 89; R. v. Czuczman (1986), 26 C.C.C. (3d) 43; R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304, leave to appeal refused [1987] 1 S.C.R. xv; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
Statutes and Regulations Cited
Bail Reform Act, S.C. 1970-71-72, c. 37.
Canadian Bill of Rights, R.S.C. 1970, App. III.
Canadian Charter of Rights and Freedoms, ss. 1 , 10 (b), 11 (f).
Criminal Code, R.S.C. 1970, c. C-34, as am., ss. 133, 429, 431.1 , 526.1 , 738(3) (a).
Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(1), (3).
Authors Cited
Baril, Alain. Évaluation des coûts encourus par la Direction générale des services judiciaires suite à un procès par jury. Février 1988.
Blackstone, Sir William. Commentaries on the Laws of England, Book 4. W. D. Lewis, ed. Philadelphia: Rees Welsh & Co., 1897.
APPEAL from a judgment of the British Columbia Court of Appeal (for reasons given in Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266, 55 C.R. (3d) 369, 9 B.C.L.R. (2d) 244, 30 C.R.R. 172, [1987] 2 W.W.R. 308, dismissing an appeal from a judgment of Fisher J. dismissing an appeal from a judgment of Hogarth Co. Ct. J. Appeal dismissed, Wilson and Sopinka JJ. dissenting.
A. G. Henderson, A. C. Ward and E. Warren, for the appellant.
S. R. Fainstein, Q.C., and Cory Stolte, for the respondent.
Paul S. Lindsay, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
//Lamer J.//
The judgment of Dickson C.J. and Lamer, La Forest and Cory JJ. was delivered by
LAMER J. -- I have had the benefit of reading the reasons for judgment prepared by my colleagues Justice Wilson and Justice Gonthier. I agree with Wilson J., for the reasons she gives, that s. 526.1 of the Criminal Code, R.S.C. 1970, c. C-34 as amended, restricts s. 11 (f) of the Canadian Charter of Rights and Freedoms which guarantees the right to the benefit of a jury trial where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. With respect, however, I reach a different conclusion as regards the analysis pursuant to s. 1 of the Charter .
It seems to me that the focus of the discussion under s. 1 must be on the purpose or rationale for denying a person a jury trial the second time around, that is to say after he has failed to appear or to remain in attendance for his trial. Under the section that is being attacked, a person who does not appear at his trial does not waive his right to be present at the trial. This is to be contrasted with s. 738(3) (a) of the Criminal Code (now s. 803(2) (a)) which states that the court may, where a person charged with a summary conviction offence does not appear for trial, proceed ex parte to hear and determine the case in the absence of the defendant. As well, it should be noted that s. 431.1 of the Criminal Code (now s. 475 ) provides that if a person absconds once his trial has started he shall be deemed to have waived the right to be present and the court may continue the trial in the accused's absence. This section applies to indictable offences. The provision at issue does not provide for the trial to proceed in the accused's absence, but rather denies him the right to a particular mode of trial, that is trial by jury, if and when he appears.
Non-attendance may properly lead to an inference that one has waived the right to be present, but not necessarily that one has waived the right to be tried by a jury. The only way to truly waive the right to be tried by jury is to re-elect or to elect differently or enter a guilty plea.
As for the purpose behind the section at issue then, it seems to me
that it extends beyond the punishment of those accused who fail to appear. Regardless of the mode of trial, failure to appear at trial is already an offence under s. 133(2) (now s. 145(2)) of the Criminal Code . The rationale for the section lies in the "cost" to potential jurors and to the criminal justice system in terms of economic loss and of the disaffection created in the community for the system of criminal justice, especially through the first jury panel. The section was enacted, as Wilson J. notes at p. 000 in her reasons, "to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process". [Emphasis added.] The expense, it should be noted, is not only to the system. Persons summoned to serve on a jury panel have little choice but to obey the summons, and as such individuals who are selected as potential jurors often forgo for a substantial time their daily livelihood. In smaller and more remote communities this may have a severe disruptive effect on the jurors. Similarly, in these areas the cost of empanelling a jury the first time let alone a second time is very high. All of this leads to an erosion in public confidence and a frustration with the system when the accused fails to appear for his trial and the assembled jury panel has to be sent away. This is the mischief the section attempts to minimize. The issue then at the section 1 analysis is to balance the restriction on the right to a trial by jury against the "cost" to individuals and society of the non-appearance of accused persons for their trials.
I agree with Wilson J. that the purpose underlying the section is "a valid legislative purpose", but I am further of the view that it is a purpose or objective that is sufficiently important to warrant overriding a constitutionally protected right. I do not believe that the importance of the objective can be measured solely by reference to the amount of money lost as a result of the non-appearance of accused persons, and the cost of empanelling a second jury. Rather the cost, and by implication the importance of the objective, must be measured in terms of the overall "cost", both in the sense of economic loss and disruption to lives, and in the sense of confidence and respect for the system, to the individuals selected for jury duty and to society as a whole. When viewed in this light, I conclude that the legislative objective is of sufficient importance to override a constitutionally protected right, especially where the restriction is limited to those who have abused the system without a legitimate excuse. It now remains to be seen if the legislative provision is proportionate to its objective.
In terms of whether the legislative measure is rationally connected to the objective, I am of the view that the section is connected to the concern over diminishing public respect and confidence in the system of criminal justice because of the failure of accused persons to attend for their trials. It is also rationally connected to the objective of deterring accused persons from not attending for their trials. Further, the section impairs the right as little as possible in order to achieve the legislative objective. I reiterate that the section is not simply designed to punish the accused for his non‑attendance. That objective is already dealt with by other sections of the Criminal Code , specifically s. 133 (now s. 145 ). Therefore, suggestions in relation to alternative punitive schemes or measures are largely irrelevant to the objective of maintaining the respect and confidence of the public in our criminal justice system. The section is designed to deal with individuals who have abused the system by not attending for their trials without a legitimate excuse. In short, the accused has abused his right to a jury trial once. The question then, is whether it is proportionate to the objective for Parliament to deny him the right the second time. I conclude that it is. There is only a limited amount of good will, confidence and respect in the public for our system of criminal justice. Therefore there is a corresponding limit to the amount of that public good will that all participants in the system, including accused persons, can spend before respect and confidence in the system significantly diminishes. In my view, the accused in the case at bar and others like him, have spent their share of good will in the public as regards the civic duty of serving on juries. Only those accused who both fail to appear and can offer no legitimate excuse are deprived of a second chance to be tried by a jury. In these circumstances I am of the view that the section is proportionate to the objective of maintaining respect for the system. The section does not remove the right to a trial, and nor does it remove the right of the accused to be present at his trial. I conclude therefore that the negative effects of the restriction do not outweigh the importance of the legislative objective.
For these reasons, I would answer the constitutional questions as
follows:
1.Does s. 526.1(1)(a) of the Criminal Code infringe or deny the right to trial by jury guaranteed by s. 11 (f) of the Canadian Charter of Rights and Freedoms ?
Yes.
2.If so, then is s. 526.1(1) (a) of the Criminal Code justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
Yes.
I would, accordingly, dismiss the appeal.
The reasons of Wilson and Sopinka JJ. were delivered by
WILSON J. (dissenting) -- The appellant claims in this appeal that s. 526.1 of the Criminal Code, R.S.C. 1970, c. C-34, as amended (now R.S.C., 1985, c. C-46, s. 598 ) violates his right to a jury trial under s. 11 (f) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1 .
Section 526.1 reads as follows:
526.1 (1) Notwithstanding anything in this Act, where a person to whom subsection 526(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or magistrate without a jury, he shall not be tried by a court composed of a judge and jury unless
(a) he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or
(b) the Attorney General requires pursuant to section 498 that the accused be tried by a court composed of a judge and jury.
(2) An accused who, pursuant to subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 464 to be tried by a judge of the court in which he is indicted without a jury and section 491 does not apply in respect of the accused.
Section 11 (f) and s. 1 of the Charter provide:
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;
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
On June 15, 1983 the appellant was charged with unlawfully trafficking in narcotics contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1. Under s. 4(3) of the Act the maximum punishment for that offence is life imprisonment.
On October 31, 1984 in the Provincial Court of British Columbia the appellant elected to be tried by a judge and jury. The appellant was directed to appear in the County Court of Westminster on November 15, 1984 to set a date for trial. The appellant did not appear at that time and a bench warrant was issued for his arrest but held in abeyance. On November 22, 1984 the appellant appeared, the warrant was vacated, and jury selection was set to begin on March 4, 1985 with the trial to commence on March 20, 1985.
On February 26, 1985, Mr. Norris, the appellant's then lawyer, withdrew as counsel from the case explaining that he had had no contact with the appellant for some time, that he did not have the appellant's current address or telephone number, and that he would advise the appellant of his withdrawal.
On March 4, 1985 the appellant failed to appear for the selection of a jury. A bench warrant was issued for his arrest. He also failed to appear on March 20, 1985, the date set for the commencement of the trial. No one appeared on his behalf at either time. The appellant was arrested and appeared without counsel in the County Court of Westminster on June 28, 1985. The case was adjourned until later that afternoon, at which time the appellant appeared with his new counsel, Mr. Warren, and was released on his own recognizance.
Legal argument was heard on August 8, 1985 as to whether or not the appellant was still entitled to a jury trial. He was represented at the hearing by Mr. Warren who submitted on his behalf (1) that he had a legitimate excuse for his failure to appear for jury selection on March 4, 1985 and (2) that s. 526.1 of the Criminal Code violated s. 11 (f) of the Charter and was, accordingly, of no force and effect. The appellant's excuse was that he had called Mr. Norris's office prior to March 4, 1985 and had been advised by a secretary that he need not appear and that his lawyer, Mr. Norris, would appear on his behalf for the jury selection. The appellant also told the court that he had received no notification from Mr. Norris that he had withdrawn from the case. Hogarth Co. Ct. J. refused to accept this as a legitimate excuse in the absence of corroboration by Mr. Norris. The judge also ruled that s. 526.1 did not violate s. 11 (f) of the Charter . He applied s. 526.1 and ruled that the appellant was no longer entitled to a jury trial and that he would be tried by a judge alone on February 7, 1986.
The appellant was convicted of trafficking in narcotics on February 7, 1986. Fisher J. of the Supreme Court of British Columbia accepted the evidence of the Crown and rejected the evidence of the appellant as "totally unbelievable". The appellant appealed to the British Columbia Court of Appeal on the issue of the constitutionality of s. 526.1 and his case was heard along with Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266 (B.C.C.A.), which raised the same constitutional issue. Evidence regarding the financial cost of accused persons failing to appear for jury selection was introduced in Re McNabb and The Queen for the purpose of establishing s. 526.1 as a reasonable limit on s. 11 (f) under s. 1 of the Charter . The appellant concedes that this evidence can be considered on this appeal.
On December 18, 1986 the British Columbia Court of Appeal dismissed the appeal for the reasons it gave in Re McNabb and The Queen in which it held that s. 526.1 did not violate s. 11 (f) of the Charter . The appellant and McNabb concurrently sought leave to appeal to this Court and leave was granted in both cases on June 25, 1987 ([1987] 1 S.C.R. x). Subsequently the Attorney General of British Columbia directed a stay of proceedings in Re McNabb and The Queen and McNabb discontinued his appeal to this Court.
2. The Courts Below
British Columbia County Court (Hogarth Co. Ct. J., unreported, October 8, 1985)
Hogarth Co. Ct. J. found that the appellant did not have a legitimate excuse under s. 526.1 of the Criminal Code for failing to attend for his trial. With regard to the constitutionality of the section he stated that he was bound by the decision of McKenzie J. of the British Columbia Supreme Court in R. v. Gladue (1982), 2 C.C.C. (3d) 175. In R. v. Gladue McKenzie J. adopted the reasons of Prowse J. in R. v. Allan (1982), 2 C.R.R. 46 (Alta. Q.B.), to the effect that, if an accused cannot establish a legitimate excuse for failing to appear for his trial, then he is not deprived of his right to a jury trial by the section but has himself waived his right under the section. Prowse J. stated in R. v. Allan, at p. 49, that for s. 526.1 to come into operation "it is not the conduct of the Crown but rather the accused which deprives him of his jury trial right." Prowse J. also concluded that if the operation of s. 526.1 did violate the accused's rights under s. 11 (f) of the Charter , the violation could be justified under s. 1 .
Although Hogarth Co. Ct. J. applied the decisions in R. v. Gladue and R. v. Allan, he did have some reservations about their application to the facts of this case. He stated:
All these jurors came and they were discharged because he didn't show up, but there is not an ounce of evidence before me that when the case was called there wasn't a back-up case ready to go or ten back-up cases ready to [go] for which jurors were going to be selected and the jurors had to be there. Under our system where we select ten or fifteen juries on one day the fact [that] one Accused doesn't appear doesn't inconvenience anyone, it simply means one panel has escaped. Unless it is shown that he has done something to warrant it, why should he be deprived on [sic] the jury trial? Unless the jurors are indisposed or the Crown has lost some witnesses, and presumably the Crown has lost some witnesses, but they can be summonsed again, but I think that's what the Court of Appeal said, they have to show they have been prejudiced by this and just to deprive him of his right to a jury trial because he slept in or he misunderstood, which I have grave doubts about, but to deprive him of his jury trial which is his fundamental right under the Constitution -- but I am bound by my brother McKenzie....
British Columbia Court of Appeal (Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266)
The Court of Appeal (Seaton, Hinkson and Aikens JJ.A.) decided this case on the basis of its reasons in Re McNabb and The Queen. It found that s. 526.1 of the Criminal Code did not violate s. 11 (f) of the Charter but simply provided for the mode of trial in the event an accused chose not to exercise or failed to exercise his or her right to a jury trial. Hinkson J.A. stated at p. 271:
In my opinion, the accused must not only exercise his right to trial by jury when he elects the mode of his trial but he must continue to exercise that right in order to enjoy the benefit of trial by jury. Thus, if the accused does not elect trial by jury it is not open to him to complain thereafter that he has been denied his Charter right. It is not enough, however, for the accused to elect trial by judge and jury in order to exercise his Charter right. He must continue to exercise it by attending for his trial before a judge and jury when required to do so. And once the trial commences before a judge and jury, he must remain in attendance during the course of the trial until a verdict is rendered. If by his own conduct he chooses not to attend at his trial, he is not exercising his right to a trial by judge and jury. [Emphasis added.]
In coming to this conclusion the Court applied the reasoning in a line of cases dealing with whether or not the provisions of s. 738(3) (a) and s. 431.1 of the Criminal Code [now ss. 803(2) (a) and 475(1) ], which allow for an accused's trial to proceed in his absence, infringed or denied the right of an accused to be present at his trial. That line of cases held that if an accused by his own conduct chooses not to attend and avail himself of his Charter right, then he cannot later be heard to complain that he has been deprived of it.
The Court of Appeal went on to hold that even if the operation of s. 526.1 of the Criminal Code did infringe an accused's right to a jury trial under s. 11 (f) of the Charter , such infringement constituted a reasonable limit under s. 1 . The Court noted that once an accused has elected to be tried by a judge and jury then the lives of citizens and witnesses are disrupted by being summoned to attend at court. Hinkson J.A. stated at pp. 272-73:
The failure of the accused to appear for trial by jury thus seriously impedes the administration of justice including the respect that the public has for the criminal trial process. That respect is diminished when the public observes the criminal trial process, ready to proceed, but unable to function and apparently paralyzed because of the failure of the accused to appear. I conclude that those were the considerations which caused Parliament to enact s. 526.1 of the Criminal Code , namely, so that the criminal trial process can function, and be seen to function, without unnecessarily disrupting the lives of citizens required to serve on jury panels.
The Court of Appeal concluded that the objectives of providing for the proper administration of justice and securing the respect of the public for the criminal trial process were of sufficient importance to warrant overriding the constitutional right to a jury trial contained in s. 11 (f) of the Charter . The Court of Appeal also held that the means Parliament had chosen were reasonable, proportionate and demonstrably justifiable. Hinkson J. A. noted at p. 274:
Parliament could have enacted a rule that those who elect to be tried by a judge sitting with a jury will be detained in custody pending trial. Parliament could have provided that when an individual who elected to be tried by a judge sitting with a jury fails to appear the trial will proceed in his absence. Parliament could have provided that when an accused fails to appear for his trial by jury thereupon his right to trial by jury is forfeited. All of these alternatives are extreme measures. None of them was adopted. Parliament chose a middle course. The decision of an accused to be tried by a jury does not affect his bail status. The accused who fails to appear does not thereby become subject to a trial conducted in his absence. The accused who fails to appear does not lose his right to trial by jury. Only those accused who both fail to appear for their trial by a judge sitting with a jury and can offer no legitimate excuse for doing so suffer that consequence. Provision is therefore made for the accused who is ill, or hurt, or lost, or mistaken. Only those who have failed to act responsibly are penalized. In legislating in that way, in my opinion, Parliament has met the second requirement set forth in Oakes.
3. The Issues
On December 22, 1987 McIntyre J. set the following constitutional questions:
1.Does s. 526.1(1)(a) of the Criminal Code [now s. 598(1) (a)] infringe or deny the right to trial by jury guaranteed by s. 11 (f) of the Canadian Charter of Rights and Freedoms ?
2.If so, then is s. 526.1(1) (a) of the Criminal Code [now s. 598(1) (a)] justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
4. Analysis
(a) Section 11 (f) of the Charter
It is now well accepted that when construing Charter rights the underlying purpose of those rights must be considered: see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. What then is the purpose of s. 11 (f)?
Section 11 (f) guarantees the benefit of a trial by jury to accused persons charged with an offence for which the maximum punishment is imprisonment for five years or a more severe punishment. In R. v. Turpin, [1989] 1 S.C.R. 1296, this Court considered the nature and purpose of this guarantee in order to determine whether an accused could waive the right and, if he could, what the effect of such a waiver would be. The Court discussed the importance of the right to the individual accused but also stressed the fact that a jury trial serves not only the interests of the accused but also those of society because it acts as a vehicle of public education and lends the weight of community standards to trial verdicts. However, as the Court stated at pp. 1310-11, while the jury trial undoubtedly serves both individual and societal interests, s. 11 (f) of the Charter is aimed at the protection of individual interests:
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 .
The history and importance of jury trials was also discussed by Blair J.A. in R. v. Bryant (1984), 16 C.C.C. (3d) 408. After a comprehensive overview of the history of the jury trial in England, the United States and Canada, he stated 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. In all common law countries it has, for this reason, been treated as almost sacrosanct and has been interfered with only to a minimal extent.
The respondent submitted, however, that the right to a jury trial is no longer as important as it once was and that there is nothing inherently unfair about a trial before a judge alone. The historical significance of the right, he pointed out, was that it protected accused persons in times past when the monarch could exert undue influence on proceedings being conducted in his own courts. The independence of the judiciary today makes this no longer a factor, and their training and experience, counsel submitted, fully equips judges in modern times to render verdicts without the assistance of a jury.
These are, no doubt, sound submissions but the reality is that the right to a jury trial was guaranteed in the Charter as recently as 1982 despite the fact that it had not been included in the Canadian Bill of Rights, R.S.C. 1970, App. III. The inescapable inference would seem to be that the right to a jury trial is viewed as just as important a protection for the accused today.
In my opinion, the language of s. 11 (f) is clear and unambiguous. The only qualifications on the right to the benefit of a jury trial under the section are that the maximum punishment for the offence be five years imprisonment or a more severe punishment and that it not be available in the case of an offence under military law tried before a military tribunal. The maximum punishment for the offence charged against the appellant is life imprisonment. He is accordingly one of the individuals intended to be protected by the s. 11 (f) guarantee.
(b) Section 526.1(1) (a) of the Criminal Code
Does s. 526.1(1)(a) of the Criminal Code violate the appellant's s. 11 (f) Charter right and, if so, does it constitute a reasonable limit on such right which can be demonstrably justified under s. 1 ?
In R. v. Big M Drug Mart Ltd., supra, Dickson J. (as he then was) set out the test to be applied in determining the constitutionality of impugned legislation. He said at pp. 331-32:
In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity.
Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims an