Cloutier v. The Queen

Cloutier v. The Queen
Collection
Supreme Court Judgments
Date
1979-06-28
Report
[1979] 2 SCR 709
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Cloutier v. The Queen, [1979] 2 S.C.R. 709
Date: 1979-06-28
Raymond Cloutier Appellant;
and
Her Majesty The Queen Respondent.
1978: December 13; 1979: June 28.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL OF QUEBEC
Criminal law — Jury trial — Challenges for cause — Peremptory challenges — Irregularities — Relative nullity — Judge's charge to jury — Criminal Code, R.S.C. 1970, c. C-34, ss. 21, 562, 563, 568, 569.
Criminal law — Evidence — Importing a narcotic — Air waybill — Original or copy — Copy without affidavit — Items tending to establish that accused was a user of marijuana — Relevance of evidence — Canada Evidence Act, R.S.C. 1970, c. E-10, s. 30 — Carriage by Air Act, c. C-14, Schedule 1, arts. 6, 8, 11.
Appellant was charged with importing a narcotic into Canada, namely 20 pounds of cannabis (marijuana). The evidence was that the merchandise was concealed in the false bottom of a dresser arriving from South Ameri­ca, which appellant asked his mother to store in her home, and it was there that the police made the seizure. The accused was acquitted by a jury, but the prosecu­tion appealed from the verdict, alleging that:
(1) the selection of the jury was tainted by irregulari­ties capable of vitiating the trial and leading to the nullity of the verdict: first, the judge denied the accused the right to peremptorily challenge a juror whom the triers had found to be impartial, after previously allowing this right with respect to another juror in the same situation; the judge also allowed counsel for the accused to ask a juror questions after the latter had been sworn;
(2) the trial judge refused to admit in evidence an "air waybill" relating to the dresser which con­tained the marijuana and certificates of analysis to establish that the items seized at the accused's home, a cigarette butt, a pipe and a green substance, indicated that the accused was a user of marijuana;
(3) the judge's charge to the jury was insufficient, because he failed to explain to the jury the provisions of the Criminal Code regarding "the parties" to an offence.
The Court of Appeal did not rule on the consequences of the first contention, but admitted the merits of the other two, quashed the verdict of acquittal and ordered a new trial. Hence the appeal to this Court.
Held (Martland, Pigeon and Beetz JJ. dissenting): The appeal should be allowed.
Per Laskin C.J. and Ritchie, Spence, Dickson, Estey and Pratte JJ.: The three questions raised must be considered separately:
(1) An examination of the case law and legislation indicates that the rule and practice which existed in England and in Canada at the time of the first codifica­tion of the criminal law have not been altered, and that in the case at bar the trial judge erred when he denied the accused the right to challenge peremptorily a juror whom the triers had found to be impartial. While the accused is entitled to ask for the trial and the verdict to be annulled for such an illegality, the nullity is relative and the prosecution may not complain about the fact that the accused exercised, or failed to exercise, one of his rights of challenge, as this right is purely personal to the accused. The judge undoubtedly erred in putting further questions to a juror after the latter had been sworn, but there is no indication that this error had any effect on the verdict of acquittal. The irregularities which occurred in empanelling the jury are therefore not a basis for setting aside the verdict of acquittal.
(2) The Court of Appeal held that the trial judge erred in refusing to admit an "air waybill". This docu­ment is governed by the Carriage by Air Act, which states that it consists of three original copies. The copy sought to be introduced in the case at bar was not one of these three originals, but a copy which could not be admitted unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act. The admissibili­ty of the items tending to establish that the accused was a user of marijuana is determined by the relevance of the evidence or the existence of a connection between the two facts which makes it possible to infer the existence of one from the existence of the other.
In the case at bar there is no connection between the fact that the accused is a user of marijuana and the fact that he knew or ought to have known that the dresser contained a narcotic at the time it was imported. Mens rea is an essential aspect of the crime attributed to the accused, and it must be established beyond all reasonable doubt. The type of evidence which merely raises suspicions against the accused is precisely the type of evidence which cannot be admitted; nor should this evidence be admitted because it may disclose the interest of the accused in the importation. Proof of the motive for a crime is generally admitted as circumstantial evidence, but only if it is relevant. In the case at bar, it cannot be said that the use of marijuana by appellant is in itself a fact seriously tending to establish motive for the crime of importation with which he is charged.
(3) Finally, contrary to the opinion of the Court of Appeal, the judge did not have to explain to the jury the scope of the provisions of the Criminal Code regarding the parties to an offence. All the evidence of the pros­ecution was designed to show that it was appellant who committed the offence, and the judge had to instruct the jury on the rules of law raised by the trial as it unfolded.
Per Martland and Pigeon JJ., dissenting: The absence of notice relied on by the trial judge in refusing to admit the air waybill was a mere procedural irregularity, since the document was filed at the preliminary inquiry. So far as the argument that the letter was only a copy is concerned, the case at bar is a criminal prosecution and the waybill in question is "a record made in the usual and ordinary course of business" of the air carrier, within the meaning of subs. (1) of s. 30 of the Canada Evidence Act. The fact that there was no signature on the document could not in criminal proceedings operate as a bar to the admission of such evidence. The Court of Appeal also correctly found to be admissible certificates of analysis and other items which the prosecution sought to introduce to prove (1) mens rea (2) the accused's interest in the importation. The two reasons cited are valid. In cases of this kind, the guilty intent ordinarily cannot be established by direct evidence, and it is therefore necessary to admit in evidence every bit of circum­stantial evidence, even if the connection between it and the guilty intent is not conclusive. Provided that there is some connection, such evidence must be admitted for what it is worth. The second reason, namely the accused's interest or motive as opposed to his intent, seems to be conclusive of the admissibility in evidence of anything tending to show that the accused did use marijuana.
Per Beetz J., dissenting: Of the two errors attributed to the trial judge by the Court of Appeal, the only one which he made was in refusing to admit in evidence the air waybill tending to establish importation. However, as the record contains other evidence of such importation it should be returned to the Court of Appeal for the weight of this other evidence to be assessed. [Rose v. The Queen, [1973] C.A. 579 applied; Re Martin and The Queen (1973), 11 C.C.C. (2d) 224; Levac v. The Queen (1975), 32 C.C.C. (2d) 357 distin­guished; R. v. Battista (1912), 21 C.C.C. 1; Horatio Bottomley (1922), 16 Cr. App. R. 184; Bussières v. Regem (1931), 53 Que. K.B. 16; R. v. Stewart, [1932] S.C.R. 612; Canada Sugar Refining Co. v. Reg., [1898] A.C. 735; Morin v. The Queen (1890), 18 S.C.R. 407; R. v. Ward (1972), 22 C.R.N.S. 153; R. v. Churton (1919), 31 C.C.C. 188; Henry Williams (1925), 19 Cr. App. R. 67; R. v. Page, [1965] Crim. L.R. 444; R. v. Edmonds (1821), 4 B. & Ald. 471; R. v. Lalonde (1898), 7 Que. Q.B. 201; R. v. Elliott (1973), 22 C.R.N.S. 142; Whelan v. The Queen (1868), 28 U.C.Q.B. 108; McLean v. The King, [1933] S.C.R. 688; R. v. Mah Hung (1912), 17 B.C.R. 56; Boyle and Merchant (1914), 10 Cr. App. R. 180; Noor Mohamed v. The King, [1949] A.C. 182; R. v. Barbour, [1938] S.C.R. 465; R. v. Bond, [1906] 2 K.B. 389; Boardman v. D.P.P., [1974] 3 All E.R. 887; Thompson v. The King, [1918] A.C. 221; Beaver v. The Queen, [1957] S.C.R. 531; R. v. Boyer (1968), 4 C.R.N.S. 127; R. v. Blondin (1970), 2 C.C.C. (2d) 118; Rance and Herron (1975), 62 Cr. App. R. 118; Scarrott (1977), 65 Cr. App. R. 125 referred to.]
APPEAL from a decision of the Court of Appeal of Quebec, quashing a verdict of acquittal. Appeal allowed, Martland, Pigeon and Beetz JJ. dissenting.
The judgment of Laskin C.J. and Ritchie, Spence, Dickson, Estey and Pratte JJ. was deliv­ered by
PRATTE J.—Appellant is appealing from a unanimous decision of the Court of Appeal of the Province of Quebec (Montgomery, Turgeon and Mayrand JJ.A.), which quashed the verdict of acquittal returned in his favour and ordered a new trial on the charge of unlawfully importing a narcotic into Canada.
The facts are well summarized by Mayrand J.A. in his reasons (there were two errors of dates which I have corrected):
[TRANSLATION] ... In November 1972, Mrs. Claire Cloutier met her son, the respondent, who asked her if she could store certain furniture at her home for his friends, who were then travelling in South America. She agreed, provided that the furniture was not too large and was not to be stored for too long. At this time, Mrs. Cloutier was living in quite a large house at 2495 Galt Street West, in Sherbrooke, while her son was living in a rather cramped apartment on MacManamy Street, also in Sherbrooke.
On January 10, 1973, Mrs. Cloutier received a tele­phone call from Air Canada, announcing the arrival of a package and asking how she would like it delivered. She asked Air Canada to contact Maislin Transport Ltd., whom she instructed to deliver this package to her, and she told her son, the respondent, about it. In the meantime, the RCMP had examined the suspect package at Dorval airport and found a bag of marijuana, concealed in a cupboard with a false bottom. The following day Maislin Transport, which had possession of the package, told Mrs. Cloutier she had to clear it through customs; she told her son of this, and he asked her to look after it herself, and advanced her $50 to cover expenses. The package was then delivered to Mrs. Cloutier's home, and the police placed the house under constant surveillance. On the day in question, January 12, 1973, the accused went to his mother's home and broke open the crate in which the furniture was packed. The next day, which was a Saturday, he called Bérubé, a student who rented a room in Mrs. Cloutier's house, by telephone and asked him to leave the basement door unlocked overnight and mention it to no one; the day after, a Sunday, he again asked him to leave the door unlocked and to close all the adjacent doors, draw the curtains and say nothing to anyone. Once again, however, no one came to collect the furniture. Finally giving up, the police entered Mrs. Cloutier's house and seized the furniture containing the marijuana; they also conducted a search in the accused's lodging and seized a metric scale, a cigarette butt, pipes, literature on marijuana and a pot containing a green substance.
Appellant was subsequently charged with having:
[TRANSLATION] . .. in Montreal, district of Montreal, and in Sherbrooke, district of St-François, between December 20, 1972 and January 12, 1973, imported into Canada a narcotic, to wit:
20 lbs. of cannabis (marijuana), the whole contrary to s. 5(1) of the Narcotic Control Act, Revised Sta­tutes of Canada 1970, c. N-1, committing thereby an indictable offence as specified in s. 5(2) of the said Act.
Appellant was tried before a jury, presided over by a judge of the Court of Queen's Bench for the district of St-François. The jury returned a verdict of acquittal. The Court of Appeal quashed this verdict; it held that the judge had erroneously denied respondent the right to adduce evidence of certain facts, and that his charge to the jury was incomplete; Mayrand J.A. was further of the view that irregularities had occurred in the selection of the jury, but he made no finding as to the attend­ing consequences.
The questions raised by this appeal concern the correctness of the procedure followed in selecting the jury, the admissibility of certain items of evi­dence and the legality of the charge to the jury.
I
First, consideration must be given to whether the selection of the jury was tainted by irregulari­ties capable of vitiating the trial and leading to the nullity of the verdict. This is what was submitted by respondent; as appellant was acquitted, he makes no complaint in this regard.
The first alleged illegality is in respect to the right of an accused to peremptorily challenge a juror whom the triers have found to be impartial.
In the case at bar, the judge first acknowledged that the accused had such a right:
[TRANSLATION] BY THE COURT
Mr. Fournier, I will allow you to peremptorily challenge this witness. Now, after the question is put to the triers you no longer have a right to do this, it must be done before the question is put to the triers.
Subsequently, the judge adopted the other point of view and denied the accused the right to peremptorily challenge another juror who had been found impartial:
[TRANSLATION] BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED
(Observations of Mr. Fournier after the prospective juror Gilles Jean, No. forty-two (42), was found to be impartial by the triers.)
Your Lordship, before the juror takes the oath .. .
BY THE COURT
The question was put and the jurors have decided it.
BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED
I would have asked nevertheless, I wanted your Lordship to make a decision. I would like him to be peremptorily challenged. BY THE COURT
No, it's too late. I had told you .. .
BY MR. ROCH FOURNIER COUNSEL FOR THE ACCUSED
No, I would like your Lordship to decide it.
Respondent argued that either one or the other of these two decisions of the trial judge was neces­sarily in error, with the result that the jury was improperly impanelled and the verdict should be regarded as null. This submission of respondent is too general. A trial is not necessarily vitiated by any erroneous decision of a judge; the conse­quences that follow from an illegality depend on the nature of the rule that is violated and the importance of the right which such rule is designed to safeguard. Even in the selection of a jury, not all rules have the same weight (R. v. Battista[1]; Horatio Bottomley[2]; Bussières v. Regem[3]; R. v. Stewart[4]); some are purely procedural, others are designed to protect the personal interests of one or other of the parties, and others have an even more fundamental importance in that they seek to ensure the integrity of the sytem [sic] that establishes, as between the parties, a predetermined state of balance.
The first question to be examined therefore is as to which decision of the trial judge was in error; that which allowed, or that which denied, the peremptory challenge? Once the error is identified, its consequences may be determined.
There is no doubt that under English criminal law, which became ours pursuant to the Quebec Act of 1774, the accused could challenge peremp­torily a prospective juror against whom a challenge for cause had been rejected (Chitty on Criminal Law, 1826, vol. 1, at p. 545; Taschereau, The Criminal Law Consolidation and Amendment
Acts of 1869, 32-33 Vict., for the Dominion of Canada, vol. 2, at p. 204).
It is also generally admitted that this was the situation when the first Criminal Code came into effect in 1893 (Taschereau, The Criminal Code, ed. 1893, under s. 668, at p. 782; Rose v. The Queen[5], by Rinfret J.A., at p. 592).
The dispute therefore turns essentially on the scope of subss. 8 and 10 of s. 668 of this Code, and the corresponding provisions of the present Code.
Section 668 of the 1892 Code read as follows:
668. Every one indicted for treason or any offence punishable with death is entitled to challenge twenty jurors peremptorily.
2. Every one indicted for any offence other than treason, or an offence punishable with death, for which he may be sentenced to imprisonment for more than five years, is entitled to challenge twelve jurors peremptorily.
3. Every one indicted for any other offence is entitled to challenge four jurors peremptorily.
4. Every prosecutor and every accused person is entitled to any number of challenges on any of the follow­ing grounds; that is to say:
(a.) that any juror's name does not appear in the panel: Provided that no misnomer or misdescription shall be a ground of challenge if it appears to the court that the description given in the panel sufficiently desig­nates the persons referred to; or
(b.) that any juror is not indifferent between the Queen and the accused; or
(c.) that any juror has been convicted of any offence for which he was sentenced to death or to any term of imprisonment with hard labour or exceeding twelve months; or
(d.) that any juror is an alien.
5. No other ground of challenge than those above-mentioned shall be allowed.
6. If any such challenge is made the court may in its discretion require the party challenging to put his chal­lenge in writing. The challenge may be in the form LL in schedule one hereto, or to the like effect. The other party may deny that the ground of challenge is true.
7. If the ground of challenge is that the juror's names do not appear in the panel, the issue shall be tried by the court on the voir dire by the inspection of the panel, and such other evidence as the court thinks fit to receive. 8. If the ground of challenge be other than as last aforesaid the two jurors last sworn, or if no jurors have then been sworn then two persons present whom the court may appoint for that purpose shall be sworn to try whether the juror objected to stands indifferent between the Queen and the accused, or has been convicted, or is an alien, as aforesaid, as the case may be. If the court or the triers find against the challenge the juror shall be sworn. If they find for the challenge he shall not be sworn. If after what the court considers a reasonable time the triers are unable to agree the court may discharge them from giving a verdict, and may direct other persons to be sworn in their place.
9. The Crown shall have power to challenge four jurors peremptorily, and may direct any number of jurors not peremptorily challenged by the accused to stand by until all the jurors have been called who are available for the purpose of trying that indictment.
10. The accused may be called upon to declare whether he challenges any jurors peremptorily or otherwise, before the prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily.
The corresponding provisions of the present
Code are ss. 562, 563, 567, 568 and 569, which read as follows when the trial began on October
30, 1973:
562. (1) An accused who is charged with an offence punishable with death is entitled to challenge twenty jurors peremptorily.
(2) An accused who is charged with an offence other than an offence punishable with death, 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, or
(e) a juror is physically unable to perform' properly the duties of a juror.
(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
568. (1) Where a challenge is made on a ground mentioned in section 567, the court may, in its discre­tion, require the party that challenges to put the chal­lenge in writing.
(2) A challenge may be in Form 37.
(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.
569. (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence that the judge thinks fit to receive.
(2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true.
(3) Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.
(4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true.
The proponents of the theory that the accused may not peremptorily challenge a juror found to be impartial rely, firstly, on the following provision in subs. 8 of s. 668:
If the court or the triers find against the challenge the juror shall be sworn.
Subsection 3 of s. 569 of the present Code is to the same effect:
Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, .. .
In either case, the English text is the same: " .. . the juror shall be sworn". In short, it is argued that the text "le juré sera assermenté", "le juré est assermenté" creates an absolute obligation, and that such obligation to swear the juror denies the right to a peremptory challenge.
I do not find this reasoning to be well grounded; it does not take into account the context of the provision to be interpreted; it disregards the true nature of the right to peremptory challenges; and it leads to the denial of the right to make such challenges in the very circumstances where it is most important that this right be available.
A legislative provision should not be interpreted in isolation; its true meaning cannot be determined without giving consideration to the object of the statute in which it is contained and to the related provisions taken as a whole. Otherwise, there is a danger of arriving at an absurd conclusion.
In Canada Sugar Refining Co. v. Reg.[6], Lord Davey expressed, at p. 741, the fundamental rule that one provision is to be interpreted in conjunc­tion with others: "Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter." The phrases "le juré sera assermenté", "le juré est assermenté" therefore do not necessarily have an absolute meaning; in attempting to determine the extent of the obligation which they impose, reference must be had to the nature and purpose of the right which is the subject-matter of legislative regulation.
According to Blackstone (Commentaries on the Laws of England, Lewis ed., vol. 4, No. 353, at p. 1738), there were two reasons which justified the existence of the right to peremptory challenges:
353. Challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. L As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
The very basis of the right to peremptory chal­lenges, therefore, is not objective but purely sub­jective. The existence of the right does not rest on facts that have to be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the juror. The fact that a juror is objectively impartial does not mean that he is believed to be impartial by the accused or the prosecution; Parliament, when allowing each party a number of peremptory challenges, clearly intended that each party have the right to remove from the jury a number of individuals whom he does not believe to be impartial, though he could not provide evidence in support of such belief. The very nature of the right to peremptory challenges and the objectives underlying it require that its exercise be entirely discretionary and not subject to any condition. There is no logical connection between the challenge for cause and the peremptory chal­lenge, and I do not see any reason why the unsuc­cessful exercise of the right to challenge for cause would have an effect on the right to a peremptory challenge. Only a clear legislative provision could negate the right to a peremptory challenge in circumstances where, because of its very purpose, such a right should be available.
Section 569 (subs. 8 of s. 668 of the first Criminal Code) is clearly a procedural provision which indicates the manner in which the merits of a challenge for cause are to be determined. The purpose of this section is not to regulate the right to peremptory challenges in itself, but rather to regulate the manner in which a challenge for cause is made: the distinction is not one to be ignored.
Moreover, the effect of an excessively literal interpretation of the phrases "the juror shall be sworn" ("le juré sera assermenté" and "le juré est assermenté") would necessarily be to deny the prosecution any right to challenge or require to stand by a juror who had been unsuccessfully challenged for cause by the accused. If a juror must be sworn because a challenge for cause has been held to be groundless, no other challenge would then be possible, whether by the prosecution or by the accused.
The right of the prosecution to challenge a juror and that of requiring a juror to stand by are independent of the rights conferred on the accused, and I do not see why the prosecution should be deprived of its rights because the accused has unsuccessfully challenged a juror for cause. The rights of challenge enjoyed by the accused are not intended to enable him to select a jury favourable to his case, but rather to reject jurors who, in his view, do not have the qualifications necessary for performing this function. I cannot accept an inter­pretation of the provisions of the Criminal Code quoted above that would disrupt the balance clearly established by the legislator between the rights of the accused and those of the prosecution.
In Morin v. The Queen[7], at pp. 424 et seq., Ritchie C.J. stated:
... If the crown can order a juror to stand aside on a second perusal of the panel, why may they not do it a third or a fourth time, in fact indefinitely until a jury was selected to suit the prosecuting officer,
I think, therefore, in this case there was an assump­tion on the part of the officer of an unlimited right of challenging jurors without assigning cause. The object of the law certainly is to secure the prisoners a fair trial. How can this be accomplished if he is deprived of the privilege the law gives him in the selection of the jury by whom he is to be tried?
In the present instance the objection taken is not raised on a mere technicality but is that the jury to whom the prisoner shall be given in charge shall be legally selected, chosen and sworn, and that neither the crown nor the prisoner shall have any advantage or privilege other than those conferred by law; but when privileges are conferred by law they shall be rigidly respected.
And Fournier J. added, at pp. 438 and 439:
[TRANSLATION] ... It would therefore be unfair and unlawful to grant it a privilege such as that of a repeated "stand aside", which would have the effect of extinguishing the prisoner's right of challenge, and in practice leave the Crown the power to form a jury to suit itself or, to use the English expression, to pack the jury.
Our law does not confer on the accused a right to empanel a favourable jury, any more than it does on the prosecution.
I therefore concur in the opinion of Schroeder J.A., in the unanimous decision of the Court of Appeal of Ontario, R. v. Ward[8], at p. 156:
... It is well settled that one section of a statute should be read in the light of other sections thereof relating to the same or to a cognate subject-matter, and applying that principle to the interpretation of s. 569(3), the words "the juror shall be sworn" surely mean no more than that the juror shall be sworn provided that in exercising their rights under these other specific provi­sions of the Code, Crown counsel has not directed the juror to stand aside, or has not challenged him peremp­torily, or counsel for the accused has not made a peremptory challenge of the particular juror.
Those who argue that a peremptory challenge may not be allowed when a challenge for cause has been dismissed rely also on subs. 10 of s. 668, which is now subs. 3 of s. 563.
There is no significant difference between these two provisions; subs. 10 reads as follows:
10. The accused may be called upon to declare whether he challenges any jurors peremptorily or otherwise, before the prosecutor is called upon to declare whether he requires such juror to stand by, or challenges him either for cause or peremptorily.
Subsection 3 of s. 563 reads as follows:
(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.
It was submitted that, in providing that the accused may be called upon to declare whether he challenges a juror peremptorily or for cause, Par­liament, through the use of this disjunctive adverb, has indicated that with respect to any one juror the accused would be entitled to only one of the two types of challenge, not to both. Such an interpreta­tion totally ignores the purpose of the subject provision. Subsection 3 of s. 563 of the present Code, like subs. 10 of s. 668 before it, is designed only to determine the order in which challenges will be made as between the accused and the prosecution; the provision does not state that the right of the accused is an alternative one; it merely says that the prosecution may only be called upon to make its declaration once the accused has made his own. If the adverb "or" in this provision were really disjunctive, it would follow that the prosecu­tion could be asked to exercise one or other of its rights of challenge or to require a juror to stand aside before the accused has exercised all of them, which would be contrary to the rule of ancient law (Blackstone, Commentaries on the Laws of England, 4th ed., 1769, vol. 4, at p. 347; Hawkins' Pleas of the Crown, vol, 2, at p. 569, c. 43; Stephen, History of the Criminal Law of England, vol. 1, at p. 303). There is no basis for this interpretation.
I therefore conclude, like Turgeon J.A. in Rose[9], at pp. 615 and 616, that neither the 1892 Code nor the present Code has had the effect of altering [TRANSLATION] "the rule and the practice which existed in England and in Canada at the time of the first codification". It follows from this that the trial judge erred when he denied the accused the right to challenge peremptorily a juror whom the triers had found to be impartial.
The consequences of this illegality must now be considered.
The accused, who is erroneously denied a peremptory challenge, is entitled to ask that the trial and the guilty verdict returned by an irregu­larly empanelled jury be annulled; it is not neces­sary for him to prove a prejudice; there is a "préjudice de droit"; as to this no doubt exists: R. v. Churton[10], Henry Williams[11], R. v. Page[12].
In King v. Edmonds[13], at p. 473, Abbott C.J. said:
It must further be observed, that the disallowing of a challenge is a ground not for a new trial, but for what is strictly and technically a venire de novo. The party complaining thereof applies to the Court, not for the exercise of the sound and legal discretion of the judges, but for the benefit of an imperative rule of law, and the improper granting, or the improper refusing of a chal­lenge, is alike the foundation for a writ of error.
What is the nature of the nullity which may be pleaded by an accused who has been erroneously denied a peremptory challenge? Is it a relative nullity which may only be pleaded by the accused, or an absolute nullity that is not capable of ratifi­cation and may also be relied on by the prosecution? The rights of peremptory challenge accorded the accused and the prosecution are personal to each. The rights of the prosecution are independent of those of the accused: the latter's exercise of his rights of peremptory challenge are solely a matter for his discretion, subject to no control by the prosecution and having no effect on the exercise of the latter's rights. The right to challenge is not a right of selection. In Morin, cited above, Tas­chereau J. said, at p. 451:
... The right of challenging is given to reject, not to select, .. .
(See also R. v. Lalonde[14], at p. 203; R. v. Elliott[15], at p. 152.)
The prosecution may not complain about the fact that the accused exercised, or failed to exer­cise, one of his rights of challenge: the interests of the prosecution are not affected in either case. The reason why the accused does not exercise a right of challenge matters little; whether it is the decision of the accused or that of the judge, the situation of the prosecution is in no way altered: it still retains its rights of challenge and standby. If a juror is not acceptable to the prosecution, it should not rely on the accused to challenge him: it must challenge him itself by exercising the rights conferred on it by law.
In the case at bar, the prosecution did not object to either one of the two decisions of the trial judge. When the judge denied the accused the right to peremptorily challenge a juror who had been found impartial, counsel for the prosecution remained silent; the juror was sworn without his asking him to stand by or to challenge him, for cause or peremptorily. In total, sixteen jurors were asked to stand by and none was challenged by the Crown, whether peremptorily or for cause.
By thus abstaining from making this juror stand by, as it was entitled to do, the prosecution in fact accepted him. The rights of the Crown as to the empanelling of the jury were respected in every particular. The prosecution may not complain that appellant's rights were violated for the simple reason that the rights were purely personal, and moreover the judge's error with respect to appel­lant was corrected by the verdict of acquittal. If the accused wished to challenge this juror peremp­torily, this was because he doubted the latter's impartiality; the verdict of acquittal proved beyond any doubt that his fears were groundless (see, by analogy, Whelan v. The Queen[16], approved in McLean v. The King[17]).
In my opinion, therefore, the prosecution may not plead the illegality of the decision of the trial judge who denied the accused the right to peremp­torily challenge a juror after the latter had been found impartial by the triers.
The prosecution also submitted that the trial was null and the verdict of acquittal void because the judge allowed counsel for the accused to ask a juror certain questions after the latter had been sworn.
The second prospective juror was challenged for cause by the accused; the triers found him impar­tial; he was sworn. After the swearing, counsel for the accused said the following:
[TRANSLATION] Your Lordship, as I just mentioned in my colleague's presence in your chambers, I omitted to ask Mr. Fortier a question, and if the Court gave me permission and my colleague agreed, I would like to be able to ask Mr. Fortier certain further questions, in the presence of the two (2) triers who were here earlier.
Counsel for the prosecution left the matter entirely up to the judge, who observed as follows:
[TRANSLATION] It is a little unusual, but I do not want to cause anyone prejudice, and I will, if the two (2) triers are here, I will allow it. [To the juror Fortier]: there are a couple of questions which Mr. Fournier wants to ask you, two (2) or three (3) questions. [To the triers]: there are two (2) or three (3) questions which Mr. Fournier wants to ask Mr. Fortier. You recall his answers thus far, and you decided he was impartial. Now, he wants to ask two (2) or three (3) questions.
The record does not indicate what were the questions the prospective juror was asked. It indicates only that once the questions were asked, the triers again found this juror to be impartial.
The trial judge undoubtedly erred in allowing these further questions to the juror (R. v. Mah Hung[18]); however, there is no basis for assuming that this error caused the prosecution any preju­dice, or might have had some effect on the verdict of acquittal. This is not a valid ground of complaint.
I therefore conclude that