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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" if in fact he or she viewed it as prejudicial and more in the nature of a burden.  The latter interpretation, in my view, 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.  It will be for the accused and his or her counsel and not for the courts to decide which course will be in the best interests of the accused in any given case.

 

(b)  The Doctrine of Waiver

 

    In Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, Lamer J. enunciated at p. 48 the general rule as to the circumstances in which waiver can take place:

 

    Some procedural requirements are enacted for the protection of the rights of one of the parties, Crown and accused, and others for both.  A party may waive a procedural requirement enacted for his benefit, the concurrence of both being required when enacted for both.

 

Likewise, Gibbs C.J. of the Australian High Court noted in R. v. Brown (1986), 19 A. Crim. R. 136 (in dissent, but not on this point) at p. 138:

 

However, it has been a principle of statutory interpretation ever since the time of Sir Edward Coke -- expressed in the maxim quilibet potest renunciare juri pro se introducto -- that any person can waive a statutory provision introduced entirely for his or her own benefit: see for example, Wilson v McIntosh [1894] AC 129 at 133 and Corporation of the City of Toronto v Russell, [1908] AC 493 at 500, and more recently, Korponey v Attorney-General of Canada (1982) 132 DLR (3d) 354 at 362.  If, on the other hand, the provision is enacted for the benefit of the public, a private individual cannot waive it:  Davies v Davies (1919) 26 CLR 348 at 355.  The same principle applies to the interpretation of constitutional enactments, and perhaps with even greater force.  A constitutional guarantee restricts the power of the legislature, and may last indefinitely, and a guarantee given for the benefit of a class of individuals, such as accused persons, might, in an unforeseen set of circumstances, cause the members of that class hardship rather than benefit if it prevented an accused person, whom it was intended to protect, from exercising some other right;  in those circumstances, what was contrived for the protection of the accused would be turned into fetters, to adapt the words of Frankfurter J. in Adams v United States:  Ex rel McCann (1942) 317 US 269 at 279; 87 Law Ed 268 at 275.

 

    The principles outlined above suggest that an individual right such as the right to the benefit of a jury trial guaranteed by s. 11 (f) should be capable of waiver by the individual whom the right is designed to protect.  In Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 396, it was recognized that once a voluntary and informed waiver has taken place, an individual's right to counsel "cannot be forced upon an unwilling accused".

 

    Waiver may not be permitted of statutory provisions in which there is a substantial public interest.  For example, in Korponay, supra, Lamer J. noted at p. 48 that paramount to the accused's right to waive procedural provisions for re-election was the right of the trial judge to further the requirements of the judicial process:

 

Paramount to such a right is that of the trial judge to require compliance notwithstanding a desire to waive, he being the ultimate judge of what procedural safeguards need nevertheless be respected in order to protect the certainty and the integrity of the judicial process.

 

I believe, however, that in the case of individual constitutional rights the priorities are different and that an accused cannot be compelled to take advantage of rights intended for his or her benefit even if such rights may have a public interest aspect.  I conclude, therefore, that an accused is entitled to waive the benefit of the s. 11 (f) right if it is his or her interests to do so.

 

    Have the appellants succeeded in waiving their right to the benefit of a jury trial?  I believe they have.  During these lengthy proceedings they have at each turn clearly and unequivocally expressed their desire to waive their right to a jury trial.  They are fully aware of the consequences of their waiver and are anxious to obtain a trial by judge alone.

 

    (c)  The Relevance of American and Australian Authorities

 

    The respondent in his argument placed considerable reliance on the fact that the jury trial provisions of the American and Australian constitutions have not been construed as giving an accused an unconditional right to waive his or her right and to a jury trial:  see Singer v. United States, supra; R. v. Brown, supra.  However, care must be taken in placing reliance on the interpretation of constitutions different in structure and purpose from our own:  see Re B.C. Motor Vehicle** Act, [1985] 2 S.C.R. 486, at p. 498.  This is especially so in this context because the structure of our Charter  differs significantly from the structure of those two constitutions.  Section 11 (f) is contained in a section of the Charter designed to protect the legal rights of individuals accused of crimes.  Section 1  then permits limits to be placed on those rights if such limits can be justified when the right of the individual is balanced against the collective interests of society:  see Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.  By way of contrast, the interests of the individual and society are found within the jury provisions of the United States and Australian constitutions.  The American jury provisions read as follows:

 

    Article III, section 2, of the United States' Constitution provides:

 

    The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

 

    The Sixth Amendment provides:

 

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

 

Section 80 of the Australian Constitution was modelled on Article III, section 2 of the United States' Constitution and provides:

 

    The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

 

Article III, section 2 of the United States' Constitution and s. 80 of the Australian Constitution do not address the jury trial in the context of the rights of accused individuals but as a procedural requirement for certain trials.  The Sixth Amendment of the American Bill of Right could be construed as an individual right but, as will be seen below, it has not been interpreted in that way.  The emphasis has been on the public interest in trial by jury.

 

    In Patton v. United States, 281 U.S., 276 (1930), the United States Supreme Court rejected the notion that individuals had a right to waive their jury trial.  Quoting from the judgment of Sutherland J. at pp. 312-13:

 

    In affirming the power of the defendant in any criminal case to waive a trial by a constitutional jury and submit to trial by a jury of less than twelve persons, or by the court, we do not mean to hold that the waiver must be put into effect at all events.  That perhaps sufficiently appears already.  Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses.  In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied.  Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can be effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.  And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.  [Emphasis added.]

 

Similarly in Singer v. United States, supra, the same Court concluded 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.  [Emphasis added.]

 

In denying the individual's ability to waive his or her right to a jury trial these cases advance a collective interest in the utilization of a jury in serious criminal charges.

 

    The collective interest has been articulated more clearly by the Australian courts.  Deanne J. pointed out in R. v. Brown, supra, at p. 156, that the  "constitutional guarantee is, however, for the benefit of the community as a whole as well as for the benefit of the particular accused".  In the same case Dawson J. commented at p. 164 on the American emphasis on the public interest in jury trials which can only be waived if the court and the prosecutor consent:

 

I must confess that these remarks and the additional requirements which they impose for the effective exercise of the waiver, seem to me to deny the personal nature of the guarantee of trial by jury and to admit to public circumstances which, upon ordinary principles, would preclude the right of the individual to waive a benefit.

 

Dawson J. referred to the implications of the United States Supreme Court's decision in Adams v. United States ex rel. McCann, supra, at p. 165:

 

The Court held that whilst the Constitution guaranteed trial by jury  -- a privilege which might be waived -- it conferred no correlative right to trial by a judge alone.  Accordingly, the conviction was upheld.  The comment may, however, be made that the effect of the decision was to deny to the accused his right to waive his privilege upon a ground involving the public interest, namely, the lack of governmental consent, suggesting once again that the right to trial by jury under the Constitution is not merely a private right, which might for the reason be waived, but that it also exists for the public benefit so as to preclude waiver upon ordinary principles.

 

Dawson J. contrasted the American provisions with our s. 11 (f):

 

    The position in the United States may be contrasted with that in Canada.  There the Canadian Charter of Rights and Freedoms  in the Constitution Act, 1982  provides in s. 11 (f) that any person charged with an offence has the right to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.  Quite clearly this provision is couched in terms of a personal guarantee and the courts have so regarded it, allowing an accused to waive trial by jury in accordance with those sections of the Criminal Code  which provided for waiver both before and after adoption of the Charter of Rights  and Freedoms . . .  [Emphasis added.]

 

To prevent an individual from waiving his or her right to the benefit of a jury trial is clearly to elevate the interests of society over the interests of the individual.  This is normally achieved under the Charter  through the application of s. 1  and not through reading a limit into the right itself.

 

    I would conclude therefore that the American and Australian authorities do not provide a sound basis for denying an accused the right to waive his s. 11 (f) right having regard to the significantly different structure of the Canadian Charter .

 

    (d)  The Effect of a Valid Waiver

 

    Having concluded that an accused is entitled to waive the benefit of the s. 11 (f) right if it is in his or her interests to do so, what is the effect of the appellants' waiver in the circumstances of this case?  The respondent submits that even if the appellants can waive their s. 11 (f) rights, such waiver cannot defeat the operation of s. 429  of the Criminal Code  which requires the appellants to be tried by a judge and jury.  As the Court of Appeal noted, the appellants were faced with mandatory trial by jury under the Criminal Code .  The Court of Appeal stated at p. 294:

 

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.

 

The respondent argues that once the appellants waive their s. 11 (f) rights their reliance on the Constitution is exhausted and the Criminal Code  operates in accordance with its terms.  It seems to me that this is correct.  The appellants' counter argument is that an ordinary piece of legislation, in this case the Criminal Code , cannot render nugatory a right guaranteed by the Constitution.  While this proposition is sound, its application in this case is not.  There is no constitutional right to a non-jury trial.  There is a constitutional right to a jury trial and there may be a "right", using that term loosely, in an accused to waive the right to a jury trial.  An accused may repudiate his or her s. 11 (f) right but such repudiation does not, in my view, transform the constitutional right to a jury trial into a constitutional right to a non-jury trial so as to overcome the mandatory jury trial provisions of the Criminal Code .  I believe that the appellants, if they are to succeed in having the impugned sections of the Criminal Code  struck down as being in violation of their s. 11 (f) constitutional right, must succeed in elevating their "right", or perhaps more accurately their power, to waive their s. 11 (f) right into a constitutional right to a non-jury trial.  Only then would it be possible to say that the mandatory jury provisions of the Criminal Code  violated their s. 11 (f) right and were therefore inconsistent with the provisions of the Constitution within the meaning of s. 52  of the Constitution Act, 1982 .

 

    I note that the Alberta Court of Appeal in R. v. Crate (1983), 7 C.C.C. (3d) 127, at pp. 129-30, construed s. 11 (f) as including a right in the accused to choose between a jury and non-jury trial:

 

Section 11 (f) confers the right to trial by jury.  It does not make trial by jury obligatory and can only be read as requiring that an accused have a choice.  There is nothing in s. 11 (f) of the Charter  to prevent an accused who has elected trial by judge and jury to re-elect for trial by judge alone.

 

    Professor Peter Hogg also construes the word "benefit" in this way and concludes that the s. 11 (f) right to the benefit of a jury trial encompasses the right to elect trial by a judge alone.  He writes in Constitutional Law of Canada (2nd ed. 1985), at pp. 773-74:

 

    Section 11 (f) confers the right to "the benefit" of trial by jury.  This is to make clear that an accused may elect against trial by jury.  So long as any other mode of trial depends upon the choice of the accused (and not the Crown or the court), the accused may be said to have the benefit of trial by jury.  Indeed, it may safely be assumed that any of the Charter  rights which exist solely for the benefit of a person may be waived by that person.

 

I agree with the Alberta Court of Appeal that s. 11 (f) does not make trial by jury obligatory.  It merely confers a right to a jury trial on the accused.  The accused may repudiate that right.  He may say that he does not wish to exercise his constitutional right to a jury trial.  However, s. 429 of the Criminal Code  does make trial by jury mandatory for those offences listed in s. 427 Section 429  then can only be overridden if there is a constitutional right to have a trial by judge alone.  With all due respect I cannot agree with the Alberta Court of Appeal and Professor Hogg that s. 11 (f) can be read as conferring on the accused a choice or an election between trial by judge and jury and trial by judge alone.  The purpose of s. 11 (f) is to give an accused the right to a jury trial and to ensure that, if a jury trial is not a benefit to the accused, the accused may waive the right to a jury trial.  Once the right is waived, however, reliance on the Constitution ceases and the provisions of the Criminal Code  govern.  There is, in my view, nothing in s. 11 (f) to give the appellants a constitutional right to elect their mode of trial or a constitutional right to be tried by judge alone so as to make s. 11 (f) inconsistent with the mandatory jury trial provisions of the Criminal Code .

 

    The appellants, however, seek an alternative remedy.  They say that if the Court should be unwilling or unable to strike down the impugned provisions of the Criminal Code  simply because some accused persons may waive their right to a jury trial under s. 11 (f), then it should fashion an appropriate remedy for such accused persons under s. 24(1)  of the Charter .  At first blush this submission is appealing.  If an accused can waive his s. 11 (f) right to a jury trial and if that waiver is to be meaningful, should the accused not be sheltered from the impact of s. 429  by declaring that it does not apply to him?  The problem, I believe, lies in the language of s. 24(1)  itself.  Section 24(1)  reads:

 

    24. (1)  Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

It is a prerequisite for the fashioning of a s. 24(1)  remedy that a person's Charter  right has been infringed or denied.  Again, it seems to me that the appellants have to cross the same hurdle.  They have to elevate their power to waive their constitutional right to a jury trial into a constitutional right to a non-jury trial.  Only if they can do so are they in a position to say that s. 429  of the Criminal Code  violates their constitutional right to a non-jury trial.

 

    The essential problem for the appellants, it seems to me, lies in the nature of waiver.  "Waiver" is described in Jowitt's Dictionary of English Law (2nd ed. 1977), vol. 2, at p. 1876, as follows:

 

A person is said to waive a benefit when he renounces or disclaims it . . . .

 

In Black's Law Dictionary (5th ed. 1979), the following appears at p. 1417:

 

Waiver.  The intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, or when one dispenses with the performance of something he is entitled to exact . . . . The renunciation, repudiation, abandonment, or surrender of some claim, right, privilege . . . .

 

    Waiver is essentially unilateral, resulting as legal consequence from some act or conduct of party against whom it operates, and no act of party in whose favor it is made is necessary to complete it.

 

Simply put, waiver does not confer rights, it repudiates them.  If you waive your right to A, it does not mean that you are entitled to B.  It means only that you are no longer entitled to A.  What you are entitled to may then have to be found elsewhere, as in this case, in the Criminal Code .  The fact that the Criminal Code  undoes the effect of the accused's waiver because it reflects collective or social interests in a trial by jury should not surprise us.  However, the amendments to the Criminal Code  passed in 1985 (as reproduced earlier in these reasons) do give effect to the accused's waiver, albeit in a qualified manner.  The accused's waiver is a necessary preliminary under the new s. 430  currently in force to a trial by judge alone in a case where the Attorney General consents.  Indeed, if s. 11 (f) were construed so as to deny the accused the power to waive, I believe that the new s. 430  would be virtually unworkable.  I make no comment as to the validity of subs. (2) of that section which appears to make any waiver by an accused of the s. 11 (f) right irrevocable in the absence of the consent of the Attorney General.

 

    I conclude that even if an accused can waive his s. 11 (f) right and does so, he is still faced with the mandatory jury trial provisions of the Criminal Code  which do not violate his s. 11 (f) right.  Neither remedy claimed by the appellants is therefore available to them.

 

Section 15  of the Charter 

 

    The appellants submit that their equality rights under s. 15  of the Charter  were infringed by the fact that accused persons in their position in Alberta had by law under s. 430  of the Criminal Code  an opportunity to be tried by a judge alone but that they, as persons accused of one of the offences listed in s. 427  of the Criminal Code  and tried outside Alberta, had no such opportunity.  For convenience I reproduce the text of s. 15 :

 

    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.

 

The first question to be addressed is whether the combined effect of ss. 427 , 429  and 430  is to deny the appellants any of their four basic equality rights under s. 15  of the Charter .

 

    (a)  The Equality Rights

 

    In defining the scope of the four basic equality rights it is important to ensure that each right be given its full independent content divorced from any justificatory factors applicable under s. 1  of the Charter .  This is particularly important in the context of the right to equality before the law which was protected in a very different form in s. 1(b) of the Canadian Bill of Rights, R.S.C. 1970, App. III (now R.S.C., 1985, App. III).  Justificatory factors are, of course, relevant to the determination of whether a valid federal objective justifies a departure from the principle of equality before the law under the Canadian Bill of Rights.  However, as in the case of the jurisprudence of other countries, great care must be taken not to import concepts and analytical processes derived from documents different in structure and content from the Charter :  see Re B.C. Motor Vehicles Act, supra, at p. 498; Ford v. Quebec (Attorney General), supra, at pp. 765-66.  I would emphasize in this connection the following passage from the judgment of McIntyre J. in Andrews, supra, at p. 178:

 

Any justification of an infringement which is found to have occurred must be made, if at all, under the broad provisions of s. 1 .

 

The existence of s. 1  of the Charter  and the demands it places on the state to justify limitations on rights is a distinctive feature of the Charter  not found in the Canadian Bill of Rights.

 

    Do the impugned statutory provisions operate so as to deprive the appellants of their rights to equality before the law and equality under the law and their rights to the equal protection and equal benefit of the law?  I note at the outset that in these early days of interpreting s. 15  it would be unwise, if not foolhardy, to attempt to provide exhaustive definitions of phrases which by their nature are not susceptible of easy definition and which are intended to provide a framework for the "unremitting protection" of equality rights in the years to come.

 

    The guarantee of equality before the law must be interpreted in its Charter  context which may involve entirely different considerations from the comparable provision in the Canadian Bill of Rights.  I would for this reason respectfully decline to import into the Charter  the reasoning of the majority of this Court in R. v. Burnshine, [1975] 1 S.C.R. 693.  The majority found that s. 2 of the Canadian Bill of Rights was not violated by a provision in the Prisons and Reformatories Act, R.S.C. 1970, c. P-21, s. 150, which was made applicable only to British Columbia.  In reaching this conclusion Martland J. stated at p. 705:

 

    It is quite clear that, in 1960, when the Bill of Rights was enacted, the concept of "equality before the law" did not and could not include the right of each individual to insist that no statute could be enacted which did not have application to everyone and in all areas of Canada.  Such a right would have involved a substantial impairment of the sovereignty of Parliament in the exercise of its legislative powers under s. 91 of the British North America Act and could only have been created by constitutional amendment, or by statute.  In my opinion the wording of the Bill of Rights did not do this, because, as has already been noted, by its express wording it declared and continued existing rights and freedoms.  It was those existing rights and freedoms which were not to be infringed by any federal statute.  Its purpose was to prevent infringement of existing rights.  It did particularize, in paras. (a) to (g), certain rights which were a part of the rights declared in s. 1 , but the right claimed by the respondent does not fall within any of those seven paragraphs.

 

Such considerations are, in my view, inappropriate in interpreting the provisions of the Charter  which by its terms and status entrenches rights available to all individuals and permits the invalidation by the courts of legislation inconsistent with the provisions of the Constitution.

 

    The Ontario Court of Appeal, it seems to me, took a very similar route in this case to the one taken by the majority of this Court in Burnshine.  In finding that there was no violation of s. 15 , the Court stated 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.

 

The Court of Appeal then listed several examples of such variations in criminal procedure among the provinces and 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 .

 

The argument that s. 15  is not violated because departures from its principles have been widely condoned in the past and that the consequences of finding a violation would be novel and disturbing is not, in my respectful view, an acceptable approach to the interpretation of Charter  provisions.  Moreover, the Court of Appeal's test of whether a distinction is "unreasonable", "invidious", "unfair" or "irrational" imports limitations into s. 15  which are not there.  It is inconsistent with the proper approach to s. 15  described by McIntyre J. in Andrews.  The equality rights must be given their full content divorced from justificatory factors properly considered under s. 1 .  Balancing legislative purposes against the effects of legislation within the rights sections themselves is fundamentally at odds with this Court's approach to the interpretation of Charter  rights.  I would respectfully agree with the observations of M. David Lepofsky and Hart Schwartz in a case comment on R. v. Ertel, supra, to the effect that the Ontario Court of Appeal's approach  places an unfair burden on the Charter  claimant to prove that a law is unreasonable and that it invites a less onerous balancing of the interests of the state against those who suffer violations of s. 15  than would be allowed under s. 1  of the Charter :  see (1988), 67 Can. Bar Rev. 115, at pp. 125-28.

 

    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.  This value has historically been associated with the requirements of the rule of law that all persons be subject to the law impartially applied and administered.  It was held by a majority of this Court in R. v. Drybones, [1970] S.C.R. 282, to require a law which made it an offence for an Indian to be intoxicated off a reserve to be struck down.  As Ritchie J. stated at p. 297:

 

    I think that the word "law" as used in s. 1(b) of the Bill of Rights is to be construed as meaning "the law of Canada" as defined in s. 5(2) (i.e. Acts of the Parliament of Canada and any orders, rules or regulations thereunder) and without attempting any exhaustive definition of "equality before the law" I think that s. 1 (b) means at least that no individual or group of individuals is to be treated more harshly than another under that law, and I am therefore of opinion that an individual is denied equality before the law if it is made an offence punishable at law, on account of his race, for him to do something which his fellow Canadians are free to do without having committed an offence or having been made subject to any penalty.

 

Taking the above definition as the minimal content of the right to equality before the law found in s. 15  of the Charter , I would conclude that the impugned provisions deny the appellants equality before the law.  The appellants wish to be tried by a judge alone but they are precluded from receiving such a trial by the combined force of ss. 427  and 429  of the Criminal Code Section 430  of the Criminal Code , on the other hand, permits those charged with the same offence in Alberta to be tried by a judge alone.  The appellants are accordingly denied an opportunity which is available to others, a denial which, as the Court of Appeal noted at pp. 299-300, could work to the disadvantage of the appellants:

 

    What we are faced with in this case is not so much whether one form of trial is more advantageous than another, i.e., whether a person charged with murder is better protected by a judge and jury trial or by a trial by judge alone.  Rather, the question is whether having that choice is an advantage in the sense of a benefit of the law.  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.

 

In short, the impugned provisions of the Criminal Code  treat 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.  I would conclude, therefore, that the appellants' right to equality before the law has been violated.

 

    Given that one of the appellants' four basic equality rights has been violated, it is not necessary to address the question whether the appellants' rights to equality under the law and to the equal benefit and protection of the law have also been violated.

 

    (b)  Discrimination

 

    Having concluded that the appellants have been denied at least one of the equality rights listed in s. 15  of the Charter , I must move to the next step and determine whether the denial can be said to result in discrimination.  Differential treatment is permitted under s. 15  provided it is "without discrimination".  As McIntyre J. stated in Andrews (at p. 182):

 

A complainant under s. 15(1)  must show not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory.

 

The internal qualification in s. 15  that the differential treatment be "without discrimination" is determinative of whether or not there has been a violation of the section.  It is only when one of the four equality rights has been denied with discrimination that the values protected by s. 15  are threatened and the court's legitimate role as the protector of such values comes into play.

 

    Can it be said then that the appellants' right to equality before the law has been denied with discrimination?  In Andrews, McIntyre J., after noting with approval the deeper understanding of discrimination developed under the Human Rights Codes, offered the following definition of discrimination (at p. 174):

 

I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

 

    In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context.  McIntyre J. emphasized in Andrews (at p. 167):

 

For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application.  Nor will a law necessarily be bad because it makes distinctions.

 

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage.  A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

 

    McIntyre J. recognized in Andrews that the "`enumerated and analogous grounds' approach most closely accords with the purposes of s. 15  and the definition of discrimination outlined above" (p. 182) and suggested that the alleged victims of discrimination in Andrews, i.e., non-citizens permanently resident in Canada were "a good example of a `discrete and insular minority' who came within the protection of s. 15 " (p. 183).  Similarly, I suggested in my reasons in Andrews that the determination of whether a group falls into an analogous category to those specifically enumerated in s. 15  is "not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society" (p. 152).  If the larger context is not examined, the s. 15  analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation.  A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge is likely, in my view, to result in the same kind of circularity which characterized the similarly situated similarly treated test clearly rejected by this Court in Andrews.

 

    The appellants claim that because they are accused of one of the indictable offences listed in s. 427  of the Criminal Code  but do not have an opportunity, as do persons charged with the same offence in Alberta, to be tried by a judge alone, they are victims of discrimination.  I disagree.  In my respectful view, it would be stretching the imagination to characterize persons accused of one of the crimes listed in s. 427  of the Criminal Code  in all the provinces except Alberta as members of a "discrete and insular minority".  I hasten to add that this categorization is not an end in itself but merely one of the analytical tools which are of assistance in determining whether the interest advanced by a particular claimant is the kind of interest s. 15  of the Charter  is designed to protect.  It is a means of ensuring that equality rights are given the same kind of broad, purposive interpretation accorded to other Charter  rights:  see Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., supra.  Differentiating for mode of trial purposes between those accused of s. 427  offences in Alberta and those accused of the same offences elsewhere in Canada would not, in my view, advance the purposes of s. 15  in remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society.  A search for indicia of discrimination such as stereotyping, historical disadvantage or vulnerability to political and social prejudice would be fruitless in this case because what we are comparing is the position of those accused of the offences listed in s. 427  in the rest of Canada to the position of those accused of the offences listed in s. 427  in Alberta.  To recognize the claims of the appellants under s. 15  of the Charter  would, in my respectful view, "overshoot the actual purpose of the right or freedom in question":  see R. v. Big M Drug Mart Ltd., at p. 344.

 

    I would not wish to suggest that a person's province of residence or place of trial could not in some circumstances be a personal characteristic of the individual or group capable of constituting a ground of discrimination.  I simply say that it is not so here.  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 .

 

    In concluding that s. 15  is not violated in this case, I realize that I am rejecting the proposition accepted by several Courts of Appeal in Canada that it is a fundamental principle under s. 15  of the Charter  that the criminal law apply equally throughout the country:  see R. v. Hamilton (1986) 30 C.C.C. (3d) 257 (Ont. C.A.), at p. 281, leave to appeal refused April 9, 1987, [1987] 1 S.C.R. ix; R. v. Frohman (1987), 35 C.C.C. (3d) 163 (Ont. C.A.); R. v. Hardiman (1987), 35 C.C.C. (3d) 226 (N.S.C.A.), at pp. 230-31; Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577 (Sask. C.A.), at pp. 613-14; R. v. S. (1988), 42 C.C.C. (3d) 41 (Ont. C.A.), leave to appeal granted September 30, 1988, [1988] 2 S.C.R. ix; R. v. Emile (1988), 42 C.C.C. (3d) 408 (N.W.T.C.A.), at pp. 419-20.  See also R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.); R. v. Bailey (1985), 17 C.R.R. 1 (Y.T.S.C.); R. v. Punch (1985), 22 C.C.C. (3d) 289 (N.W.T.S.C.)

 

    I do not think, with all due respect to those who think otherwise, that this can be stated in terms of "fundamental principle" and in bald and absolute form for the purposes of s. 15 .  In my view, s. 15  mandates a case by case analysis as was undertaken by this Court in Andrews to determine 1) whether the distinction created by the impugned legislation results in a violation of one of the equality rights and, if so, 2) whether that distinction is discriminatory in its purpose or effect.

 

    In this particular case the appellants claim to be part of a disadvantaged group comprising all those charged with s. 427  offences being tried outside the province of Alberta and it is this claim which I have rejected.  This does not, in my view, preclude the possibility that some variations in criminal law and procedure among the different provinces could give rise to discrimination in the sense defined by a majority of this Court in Andrews.

 

    As section 7 of the Charter  was not pleaded in this case I make no comment on whether equal application of the criminal law to all persons in Canada constitutes a principle of fundamental justice within the meaning of that section.

 

Section 1  of the Charter 

 

    Having found no violation of s. 11 (f) or s. 15  of the Charter  it is not necessary to turn to s. 1 .

 

4.  Disposition

 

    I would dismiss the appeals and answer the constitutional questions as follows:

 

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.

 

A.No.

 

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 ?

 

A.In view of the answer to Question 1 it is not necessary to answer this question.

 

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 ?

 

A.No.

 

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 ?

 

A.In view of the answer to Question 3 it is not necessary to answer this question.

 

    Appeals dismissed.

 

    Solicitors for the appellant Turpin:  Bayne, Sellar, Boxall, Ottawa.

 

    Solicitors for the appellant Siddiqui:  Addelman & Edelson, Ottawa.

 

    Solicitor for the respondent:  The Ministry of the Attorney General, Toronto.

 

    Solicitor for the intervener the Attorney General of Canada:  Frank Iacobucci, Ottawa.

 

    Solicitors for the intervener the Attorney General of Manitoba:  Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa.

 

    Solicitor for the intervener the Attorney General of British Columbia:  The Attorney General of British Columbia, Victoria.



     *  Le Dain J. took no part in the judgment.

     ** See Erratum, [1989] 1 S.C.R. iv

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