Supreme Court Judgments

R. v. Lee, [1989] 2 S.C.R. 1384

 

Allen Harry Lee             Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

and

 

The Attorney General for Ontario and

the Attorney General of Quebec                                                                                     Interveners

 

indexed as:  r. v. lee

 

File No.:  20235.

 

1989:  March 22; 1989:  December 21.

 

Present:  Dickson C.J. and Lamer, Wilson, La Forest, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for british columbia

 

    Constitutional law -- Charter of Rights  -- Right to trial by judge and jury (s. 11(f)) -- Charter  right limited by stipulation that the maximum sentence for crime be at least five years' imprisonment -- Criminal Code  (s. 526.1) removing right to jury on subsequent trial if accused failing to appear without legitimate reason ‑‑ Accused charged with offence carrying maximum penalty of life imprisonment -- Trial by judge and jury elected but accused failing to appear -- Jury trial denied -- Whether or not s. 526.1 of the Criminal Code  infringing on s. 11(f)  of the Charter  -- If so, whether or not infringement justified -- Canadian Charter of Rights and Freedoms, ss. 1 , 11(f)  --Criminal Code, R.S.C. 1970, c. C-34, s. 526.1.

 

    Appellant was charged and subsequently convicted of an offence carrying a maximum punishment of life imprisonment.  He elected trial by judge and jury.  Appellant's counsel withdrew before the date set for jury selection explaining that he had had no contact with the appellant for some time, that he did not have the appellant's current address or telephone number, and that he would advise the appellant of his withdrawal.  Neither appellant nor anyone on his behalf appeared on the dates set for the selection of a jury and for the commencement of the trial.  Appellant was arrested, appeared before the court, and after an adjournment, appeared with new counsel.

 

    Argument was later heard as to whether or not appellant was still entitled to a jury trial.  The appellant's excuse for not appearing was that he had been advised by his former lawyer's office that he need not appear for the jury selection and that he had received no notification concerning his lawyer's withdrawal from the case.  The trial judge refused to accept this as a legitimate excuse without corroboration.  He held that s. 526.1 did not violate s. 11( f )  of the Canadian Charter of Rights and Freedoms  and ruled that the appellant was no longer entitled to a jury trial.

 

    The appellant appealed to the British Columbia Court of Appeal on the issue of the constitutionality of s. 526.1.  Evidence regarding the degree of disruption and financial cost of accused persons failing to appear for jury selection was introduced in a companion case (Re McNabb and The Queen), for the purpose of establishing s. 526.1 as a reasonable limit on s. 11(f) under s. 1  of the Charter .  The British Columbia Court of Appeal dismissed the appeal for the reasons it gave in Re McNabb and The Queen in which it held that s. 526.1 did not violate s. 11( f )  of the Charter .  The appellant and McNabb concurrently sought and were granted leave to appeal to this Court.  The Attorney General of British Columbia subsequently directed a stay of proceedings in Re McNabb and The Queen and McNabb discontinued his appeal to this Court.

 

    The constitutional questions before this Court queried (1) whether s. 526.1 of the Criminal Code  violates the right to a jury trial under s. 11( f )  of the Charter , and (2) if so, whether it is justified under s. 1.

 

    Held (Wilson and Sopinka JJ. dissenting):  The appeal should be dismissed.

 

    Per Dickson C.J. and Lamer, La Forest and Cory JJ.:  For the reasons given by Wilson J., s. 526.1 of the Criminal Code  restricts s. 11( f )  of the Charter .

 

    Non-attendance may properly lead to an inference that one has waived the right to be present, but not necessarily that one has waived the right to be tried by a jury.  The only way to truly waive the right to be tried by jury is to re-elect or to elect differently or enter a guilty plea.

 

    The rationale for the section lies in the "cost" to potential jurors and to the criminal justice system in terms of economic loss and of the disaffection created in the community for the system of criminal justice.  This purpose is much broader than being merely a punishment because failure to appear at trial is already a criminal offence.  Its importance therefore cannot be measured solely by reference to the amount of money involved.  The cost, and by implication the importance of the objective, must be measured in terms of the overall "cost", both in the sense of economic loss and disruption to lives, and in the sense of confidence and respect for the system, to the individuals selected for jury duty and to society as a whole.

 

    The objective of the section is rationally connected to the concern over diminishing public respect and confidence in the system of criminal justice because of the failure of accused persons to attend for their trials.  It is also rationally connected to the objective of deterring accused persons from not attending for their trials.  The section impairs the right as little as possible in order to achieve the legislative objective.  Therefore, it is proportionate to the objective of maintaining respect for the system.

 

    Per Gonthier J.:  Section 526.1 of the Criminal Code  denies a trial by jury only where the accused has failed to appear without legitimate excuse or where the Attorney General does not require that the trial be a jury trial.  The section was designed to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process -- clearly a valid legislative purpose.

 

    The effect of s. 526.1(1)(a) did not offend s. 11( f )  of the Charter .  The exercise of a right under s. 11( f )  of the Charter  is completed when the accused appears in court at the requisite time and not when the accused elects trial by jury.  An accused who fails to appear for no legitimate reason and who is denied a jury trial under s. 526.1(1)(a) may not assert that he has been deprived of his right under s. 11( f )  of the Charter .  Charter  rights must not be taken lightly either by the state or by the citizens whom they are meant to protect.  The accused has, by his own conduct, failed to exercise his right under s. 11(f).  It was illusory to speak in such circumstances of state denial of a Charter  right.

 

    Per Wilson and Sopinka JJ. (dissenting):  Section 11( f )  of the Charter  clearly and unambiguously states that the only qualifications on the right to a jury trial are that the maximum punishment for the offence be at least five years' imprisonment or that the offence be under military law tried before a military tribunal.  Appellant was charged with an offence punishable by life imprisonment and therefore protected by s. 11(f).

 

    Section 11( f )  of the Charter  and s. 429 (now s. 471) of the Code grant parallel rights to a jury trial.  Section 526.1 was only intended to deal with the right under the Code and was not designed to deal with the Charter  right to a jury trial.

 

    Section 526.1 had a clearly valid legislative purpose, namely, to improve the operation of the Bail Reform Act by ensuring that accused persons released on bail showed up for their trials.  It was designed to protect the administration of justice against delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process.  An ancillary objective may have been deterrence and punishment in that an accused who elects a jury trial and fails to attend without a legitimate excuse loses his right to a jury trial in addition to being liable for the separate offence of failing to appear (s. 133(2), now s. 145(2)).

 

    The effect of s. 526.1 was that, if an accused fails to appear for trial without a legitimate excuse, the accused shall not be tried by a court composed of a judge and jury.  It accordingly infringed s. 11( f )  of the Charter .

 

    The failure to appear did not meet the requirements for an effective waiver.  Appellant was not shown to have clearly and unequivocally waived his Charter  right or to have been aware that the consequences of his conduct in failing to appear for jury selection and the commencement of his trial would be or could be the loss of his Charter  right to a jury trial.

 

    The want of a legitimate excuse for failing to appear disclosed a lack of respect for the administration of justice but did not constitute an abandonment of his Charter  right to one form of trial as opposed to another.  There was no direct connection between the accused's failure to appear without a legitimate excuse and the form of his trial.  Appellant's failure to appear for the selection of a jury which forms part of his trial for purposes of s. 526.1, may have been more directly tied to the form of trial guaranteed him by the Charter  but it too did not manifest a clear and unequivocal intention to forego the right to trial by jury which he had already elected and assiduously maintained despite his failure to appear.

 

    It was not the conduct of the accused, either by voluntarily waiving his right or failing to exercise it, that caused the loss of the appellant's s. 11(f) right.  It was s. 526.1 of the Criminal Code  which purported to deprive him of it.  The section could not stand because it could not be justified under s. 1.

 

    The evidence disclosed that failing to attend for trial was not a major problem.  Respondent failed to discharge the onus of establishing that s. 526.1 meets a pressing and substantial concern.  Moreover, its objectives of reducing administrative inconvenience and expense were insufficient to override a vital constitutional right.  Nor did the provision impair the right as little as possible.

 

Cases Cited

 

By Gonthier J.

 

    Referred to:  R. v. Allan (1982), 2 C.R.R. 46; R. v. Gladue (1982), 2 C.C.C. (3d) 175; R. v. Ramirez (1982), 9 W.C.B. 107; R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27.

 

By Wilson J. (dissenting)

 

    R. v. Gladue (1982), 2 C.C.C. (3d) 175; R. v. Allan (1982), 2 C.R.R. 46; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Bryant (1984), 16 C.C.C. (3d) 408; Re Voisard and the Queen (1978), 43 C.C.C. (2d) 570; R. v. Ramirez (1982), 9 W.C.B. 107; R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27, 190 A.P.R. 27; R. v. Crate (1983), 7 C.C.C. (3d) 127; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Mills, [1986] 1 S.C.R. 863; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Tarrant (1984), 13 C.C.C. (3d) 219; R. v. Rogers, [1984] 6 W.W.R. 89; R. v. Czuczman (1986), 26 C.C.C. (3d) 43; R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304, leave to appeal refused [1987] 1 S.C.R. xv; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.

 

Statutes and Regulations Cited

 

Bail Reform Act, S.C. 1970-71-72, c. 37.

 

Canadian Bill of Rights, R.S.C. 1970, App. III.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 10( b ) , 11( f ) .

 

Criminal Code, R.S.C. 1970, c. C-34, as am., ss. 133, 429, 431.1, 526.1, 738(3)(a).

 

Narcotic Control Act, R.S.C. 1970, c. N-1, s. 4(1), (3).

 

Authors Cited

 

Baril, Alain.  Évaluation des coûts encourus par la Direction générale des services judiciaires suite à un procès par jury.  Février 1988.

 

Blackstone, Sir William.  Commentaries on the Laws of England, Book 4.  W. D. Lewis, ed.  Philadelphia:  Rees Welsh & Co., 1897.

 

    APPEAL from a judgment of the British Columbia Court of Appeal (for reasons given in Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266, 55 C.R. (3d) 369, 9 B.C.L.R. (2d) 244, 30 C.R.R. 172, [1987] 2 W.W.R. 308, dismissing an appeal from a judgment of Fisher J. dismissing an appeal from a judgment of Hogarth Co. Ct. J.  Appeal dismissed, Wilson and Sopinka JJ. dissenting.

 

    A. G. Henderson, A. C. Ward and E. Warren, for the appellant.

 

    S. R. Fainstein, Q.C., and Cory Stolte, for the respondent.

 

    Paul S. Lindsay, for the intervener the Attorney General for Ontario.

 

    Jacques Gauvin, for the intervener the Attorney General of Quebec.

 

//Lamer J.//

 

    The judgment of Dickson C.J. and Lamer, La Forest and Cory JJ. was delivered by

 

    LAMER J. -- I have had the benefit of reading the reasons for judgment prepared by my colleagues Justice Wilson and Justice Gonthier.  I agree with Wilson J., for the reasons she gives, that s. 526.1 of the Criminal Code, R.S.C. 1970, c. C-34 as amended, restricts s. 11( f )  of the Canadian Charter of Rights and Freedoms  which guarantees the right to the benefit of a jury trial where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.  With respect, however, I reach a different conclusion as regards the analysis pursuant to s. 1  of the Charter .

 

    It seems to me that the focus of the discussion under s. 1 must be on the purpose or rationale for denying a person a jury trial the second time around, that is to say after he has failed to appear or to remain in attendance for his trial.  Under the section that is being attacked, a person who does not appear at his trial does not waive his right to be present at the trial.  This is to be contrasted with s. 738(3) (a) of the Criminal Code  (now s. 803(2)(a)) which states that the court may, where a person charged with a summary conviction offence does not appear for trial, proceed ex parte to hear and determine the case in the absence of the defendant.  As well, it should be noted that s. 431.1  of the Criminal Code  (now s. 475) provides that if a person absconds once his trial has started he shall be deemed to have waived the right to be present and the court may continue the trial in the accused's absence.  This section applies to indictable offences.  The provision at issue does not provide for the trial to proceed in the accused's absence, but rather denies him the right to a particular mode of trial, that is trial by jury, if and when he appears.

 

    Non-attendance may properly lead to an inference that one has waived the right to be present, but not necessarily that one has waived the right to be tried by a jury.  The only way to truly waive the right to be tried by jury is to re-elect or to elect differently or enter a guilty plea.

 

    As for the purpose behind the section at issue then, it seems to me

that it extends beyond the punishment of those accused who fail to appear.  Regardless of the mode of trial, failure to appear at trial is already an offence under s. 133(2) (now s. 145(2)) of the Criminal Code .  The rationale for the section lies in the "cost" to potential jurors and to the criminal justice system in terms of economic loss and of the disaffection created in the community for the system of criminal justice, especially through the first jury panel.  The section was enacted, as Wilson J. notes at p. 000 in her reasons, "to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process".  [Emphasis added.]  The expense, it should be noted, is not only to the system.  Persons summoned to serve on a jury panel have little choice but to obey the summons, and as such individuals who are selected as potential jurors often forgo for a substantial time their daily livelihood.   In smaller and more remote communities this may have a severe disruptive effect on the jurors.  Similarly, in these areas the cost of empanelling a jury the first time let alone a second time is very high.  All of this leads to an erosion in public confidence and a frustration with the system when the accused fails to appear for his trial and the assembled jury panel has to be sent away. This is the mischief the section attempts to minimize.  The issue then at the section 1 analysis is to balance the restriction on the right to a trial by jury against the "cost" to individuals and society of the non-appearance of accused persons for their trials.

 

    I agree with Wilson J. that the purpose underlying the section is "a valid legislative purpose", but I am further of the view that it is a purpose or objective that is sufficiently important to warrant overriding a constitutionally protected right.  I do not believe that the importance of the objective can be measured solely by reference to the amount of money lost as a result of the  non-appearance of accused persons, and the cost of empanelling a second jury.  Rather the cost, and by implication the importance of the objective, must be measured in terms of the overall "cost", both in the sense of economic loss and disruption to lives, and in the sense of confidence and respect for the system, to the individuals selected for jury duty and to society as a whole.  When viewed in this light, I conclude that the legislative objective is of sufficient importance to override a constitutionally protected right, especially where the restriction is limited to those who have abused the system  without a legitimate excuse.  It now remains to be seen if the legislative provision is proportionate to its objective.

 

    In terms of whether the legislative measure is rationally connected to the objective, I am of the view that the section is connected to the concern over diminishing public respect and confidence in the system of criminal justice because of the failure of accused persons to attend for their trials.  It is also rationally connected to the objective of deterring accused persons from not attending for their trials.  Further, the section impairs the right as little as possible in order to achieve the legislative objective.  I reiterate that the section is not simply designed to punish the accused for his non‑attendance.  That objective is already dealt with by other sections of the Criminal Code , specifically s. 133 (now s. 145).  Therefore, suggestions in relation to alternative punitive schemes or measures are largely irrelevant to the objective of maintaining the respect and confidence of the public in our criminal justice system.  The section is designed to deal with individuals who have abused the system by not attending for their trials without a legitimate excuse.  In short, the accused has abused his right to a jury trial once.  The question then, is whether it is proportionate to the objective for Parliament to deny him the right the second time.  I conclude that it is.  There is only a limited amount of good will, confidence and respect in the public for our system of criminal justice.  Therefore there is a corresponding limit to the amount of that public good will that all participants in the system, including accused persons, can spend before respect and confidence in the system significantly diminishes.  In my view, the accused in the case at bar and others like him, have spent their share of good will in the public as regards the civic duty of serving on juries.  Only those accused who both fail to appear and can offer no legitimate excuse are deprived of a second chance to be tried by a jury.  In these circumstances I am of the view that the section is proportionate to the objective of maintaining respect for the system.  The section does not remove the right to a trial, and nor does it remove the right of the accused to be present at his trial.  I conclude therefore that the negative effects of the restriction do not outweigh the importance of the legislative objective.

 

    For these reasons, I would answer the constitutional questions as

follows:

 

1.Does s. 526.1(1)(a) of the Criminal Code  infringe or deny the right to trial by jury guaranteed by s. 11( f )  of the Canadian Charter of Rights and Freedoms ?

 

Yes.

 

2.If so, then is s. 526.1(1)(a) of the Criminal Code  justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

Yes.

 

    I would, accordingly, dismiss the appeal.

 

    The reasons of Wilson and Sopinka JJ. were delivered by

 

    WILSON J. (dissenting) -- The appellant claims in this appeal that s. 526.1 of the Criminal Code, R.S.C. 1970, c. C-34, as amended (now R.S.C., 1985, c. C-46, s. 598 ) violates his right to a jury trial under s. 11( f )  of the Canadian Charter of Rights and Freedoms  and cannot be justified under s. 1.

 

    Section 526.1 reads as follows:

 

    526.1  (1)  Notwithstanding anything in this Act, where a person to whom subsection 526(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or magistrate without a jury, he shall not be tried by a court composed of a judge and jury unless

 

(a)  he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or

 

(b)  the Attorney General requires pursuant to section 498 that the accused be tried by a court composed of a judge and jury.

 

    (2)  An accused who, pursuant to subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 464 to be tried by a judge of the court in which he is indicted without a jury and section 491 does not apply in respect of the accused.

 

    Section 11( f )  and s. 1  of the Charter  provide:

 

11.  Any person charged with an offence has the right

 

                                                                          . . .

 

(f)  except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

 

    1.   The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

1.  The Facts

 

    On June 15, 1983 the appellant was charged with unlawfully trafficking in narcotics contrary to s. 4(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1.  Under s. 4(3) of the Act the maximum punishment for that offence is life imprisonment.

 

    On October 31, 1984 in the Provincial Court of British Columbia the appellant elected to be tried by a judge and jury.  The appellant was directed to appear in the County Court of Westminster on November 15, 1984 to set a date for trial.  The appellant did not appear at that time and a bench warrant was issued for his arrest but held in abeyance.  On November 22, 1984 the appellant appeared, the warrant was vacated, and jury selection was set to begin on March 4, 1985 with the trial to commence on March 20, 1985.

 

    On February 26, 1985, Mr. Norris, the appellant's then lawyer, withdrew as counsel from the case explaining that he had had no contact with the appellant for some time, that he did not have the appellant's current address or telephone number, and that he would advise the appellant of his withdrawal.

 

    On March 4, 1985 the appellant failed to appear for the selection of a jury.  A bench warrant was issued for his arrest.  He also failed to appear on March 20, 1985, the date set for the commencement of the trial.  No one appeared on his behalf at either time.  The appellant was arrested and appeared without counsel in the County Court of Westminster on June 28, 1985.  The case was adjourned until later that afternoon, at which time the appellant appeared with his new counsel, Mr. Warren, and was released on his own recognizance.

 

    Legal argument was heard on August 8, 1985 as to whether or not the appellant was still entitled to a jury trial.  He was represented at the hearing by Mr. Warren who submitted on his behalf (1) that he had a legitimate excuse for his failure to appear for jury selection on March 4, 1985 and (2) that s. 526.1 of the Criminal Code  violated s. 11( f )  of the Charter  and was, accordingly, of no force and effect.  The appellant's excuse was that he had called Mr. Norris's office prior to March 4, 1985 and had been advised by a secretary that he need not appear and that his lawyer, Mr. Norris, would appear on his behalf for the jury selection.  The appellant also told the court that he had received no notification from Mr. Norris that he had withdrawn from the case.  Hogarth Co. Ct. J. refused to accept this as a legitimate excuse in the absence of corroboration by Mr. Norris.  The judge also ruled that s. 526.1 did not violate s. 11( f )  of the Charter .  He applied s. 526.1 and ruled that the appellant was no longer entitled to a jury trial and that he would be tried by a judge alone on February 7, 1986.

 

    The appellant was convicted of trafficking in narcotics on February 7, 1986.  Fisher J. of the Supreme Court of British Columbia accepted the evidence of the Crown and rejected the evidence of the appellant as "totally unbelievable".  The appellant appealed to the British Columbia Court of Appeal on the issue of the constitutionality of s. 526.1 and his case was heard along with Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266 (B.C.C.A.), which raised the same constitutional issue.  Evidence regarding the financial cost of accused persons failing to appear for jury selection was introduced in Re McNabb and The Queen for the purpose of establishing s. 526.1 as a reasonable limit on s. 11(f) under s. 1  of the Charter .  The appellant concedes that this evidence can be considered on this appeal.

 

    On December 18, 1986 the British Columbia Court of Appeal dismissed the appeal for the reasons it gave in Re McNabb and The Queen in which it held that s. 526.1 did not violate s. 11( f )  of the Charter .  The appellant and McNabb concurrently sought leave to appeal to this Court and leave was granted in both cases on June 25, 1987 ([1987] 1 S.C.R. x).  Subsequently the Attorney General of British Columbia directed a stay of proceedings in Re McNabb and The Queen and McNabb discontinued his appeal to this Court.

 

2.  The Courts Below

 

British Columbia County Court (Hogarth Co. Ct. J., unreported, October 8, 1985)

 

    Hogarth Co. Ct. J. found that the appellant did not have a legitimate excuse under s. 526.1 of the Criminal Code  for failing to attend for his trial. With regard to the constitutionality of the section he stated that he was bound by the decision of McKenzie J. of the British Columbia Supreme Court in R. v. Gladue (1982), 2 C.C.C. (3d) 175.  In R. v. Gladue McKenzie J. adopted the reasons of Prowse J. in R. v. Allan (1982), 2 C.R.R. 46 (Alta. Q.B.), to the effect that, if an accused cannot establish a legitimate excuse for failing to appear for his trial, then he is not deprived of his right to a jury trial by the section but has himself waived his right under the section.  Prowse J. stated in R. v. Allan, at p. 49, that for s. 526.1 to come into operation "it is not the conduct of the Crown but rather the accused which deprives him of his jury trial right."  Prowse J. also concluded that if the operation of s. 526.1 did violate the accused's rights under s. 11( f )  of the Charter , the violation could be justified under s. 1.

 

    Although Hogarth Co. Ct. J. applied the decisions in R. v. Gladue and R. v. Allan, he did have some reservations about their application to the facts of this case.  He stated:

 

All these jurors came and they were discharged because he didn't show up, but there is not an ounce of evidence before me that when the case was called there wasn't a back-up case ready to go or ten back-up cases ready to [go] for which jurors were going to be selected and the jurors had to be there. Under our system where we select ten or fifteen juries on one day the fact [that] one Accused doesn't appear doesn't inconvenience anyone, it simply means one panel has escaped. Unless it is shown that he has done something to warrant it, why should he be deprived on [sic] the jury trial?  Unless the jurors are indisposed or the Crown has lost some witnesses, and presumably the Crown has lost some witnesses, but they can be summonsed again, but I think that's what the Court of Appeal said, they have to show they have been prejudiced by this and just to deprive him of his right to a jury trial because he slept in or he misunderstood, which I have grave doubts about, but to deprive him of his jury trial which is his fundamental right under the Constitution -- but I am bound by my brother McKenzie....

 

British Columbia Court of Appeal (Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266)

 

    The Court of Appeal (Seaton, Hinkson and Aikens JJ.A.) decided this case on the basis of its reasons in Re McNabb and The Queen.  It found that s. 526.1 of the Criminal Code  did not violate s. 11( f )  of the Charter  but simply provided for the mode of trial in the event an accused chose not to exercise or failed to exercise his or her right to a jury trial.  Hinkson J.A. stated at p. 271:

 

In my opinion, the accused must not only exercise his right to trial by jury when he elects the mode of his trial but he must continue to exercise that right in order to enjoy the benefit of trial by jury. Thus, if the accused does not elect trial by jury it is not open to him to complain thereafter that he has been denied his Charter  right. It is not enough, however, for the accused to elect trial by judge and jury in order to exercise his Charter  right. He must continue to exercise it by attending for his trial before a judge and jury when required to do so. And once the trial commences before a judge and jury, he must remain in attendance during the course of the trial until a verdict is rendered. If by his own conduct he chooses not to attend at his trial, he is not exercising his right to a trial by judge and jury.  [Emphasis added.]

 

    In coming to this conclusion the Court applied the reasoning in a line of cases dealing with whether or not the provisions of s. 738(3) (a) and s. 431.1  of the Criminal Code  [now ss. 803(2)(a) and 475(1)], which allow for an accused's trial to proceed in his absence, infringed or denied the right of an accused to be present at his trial.  That line of cases held that if an accused by his own conduct chooses not to attend and avail himself of his Charter  right, then he cannot later be heard to complain that he has been deprived of it.

 

    The Court of Appeal went on to hold that even if the operation of s. 526.1 of the Criminal Code  did infringe an accused's right to a jury trial under s. 11( f )  of the Charter , such infringement constituted a reasonable limit under s. 1.  The Court noted that once an accused has elected to be tried by a judge and jury then the lives of citizens and witnesses are disrupted by being summoned to attend at court.  Hinkson J.A. stated at pp. 272-73:

 

The failure of the accused to appear for trial by jury thus seriously impedes the administration of justice including the respect that the public has for the criminal trial process.  That respect is diminished when the public observes the criminal trial process, ready to proceed, but unable to function and apparently paralyzed because of the failure of the accused to appear.  I conclude that those were the considerations which caused Parliament to enact s. 526.1 of the Criminal Code , namely, so that the criminal trial process can function, and be seen to function, without unnecessarily disrupting the lives of citizens required to serve on jury panels.

 

    The Court of Appeal concluded that the objectives of providing for the proper administration of justice and securing the respect of the public for the criminal trial process were of sufficient importance to warrant overriding the constitutional right to a jury trial contained in s. 11( f )  of the Charter .  The Court of Appeal also held that the means Parliament had chosen were reasonable, proportionate and demonstrably justifiable.  Hinkson J. A. noted at p. 274:

 

Parliament could have enacted a rule that those who elect to be tried by a judge sitting with a jury will be detained in custody pending trial. Parliament could have provided that when an individual who elected to be tried by a judge sitting with a jury fails to appear the trial will proceed in his absence.  Parliament could have provided that when an accused fails to appear for his trial by jury thereupon his right to trial by jury is forfeited.  All of these alternatives are extreme measures.  None of them was adopted. Parliament chose a middle course.  The decision of an accused to be tried by a jury does not affect his bail status.  The accused who fails to appear does not thereby become subject to a trial conducted in his absence.  The accused who fails to appear does not lose his right to trial by jury.  Only those accused who both fail to appear for their trial by a judge sitting with a jury and can offer no legitimate excuse for doing so suffer that consequence. Provision is therefore made for the accused who is ill, or hurt, or lost, or mistaken.  Only those who have failed to act responsibly are penalized.  In legislating in that way, in my opinion, Parliament has met the second requirement set forth in Oakes.

 

3.  The Issues

 

    On December 22, 1987 McIntyre J. set the following constitutional questions:

 

    1.Does s. 526.1(1)(a) of the Criminal Code  [now s. 598(1)(a)] infringe or deny the right to trial by jury guaranteed by s. 11( f )  of the Canadian Charter of Rights and Freedoms ?

 

2.If so, then is s. 526.1(1)(a) of the Criminal Code  [now s. 598(1)(a)] justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

4.  Analysis

 

(a)  Section 11(f)  of the Charter 

 

    It is now well accepted that when construing Charter  rights the underlying purpose of those rights must be considered: see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.  What then is the purpose of s. 11(f)?

    Section 11(f) guarantees the benefit of a trial by jury to accused persons charged with an offence for which the maximum punishment is imprisonment for five years or a more severe punishment.  In R. v. Turpin, [1989] 1 S.C.R. 1296, this Court considered the nature and purpose of this guarantee in order to determine whether an accused could waive the right and, if he could, what the effect of such a waiver would be.  The Court discussed the importance of the right to the individual accused but also stressed the fact that a jury trial serves not only the interests of the accused but also those of society because it acts as a vehicle of public education and lends the weight of community standards to trial verdicts.  However, as the Court stated at pp. 1310-11, while the jury trial undoubtedly serves both individual and societal interests, s. 11( f )  of the Charter  is aimed at the protection of individual interests:

 

    I start with the proposition that, whatever other interests s. 11( f )  of the Charter  may be designed to protect, it is certainly designed to protect the interests of those charged with criminal offences and to place corresponding duties on the state to respect such interests.  In Mills v. The Queen, [1986] 1 S.C.R. 863, Lamer J., in his analysis of the right to be tried within a reasonable time under s. 11( b )  of the Charter , referred to the separate individual and collective interests served by timely trials but concluded at p. 917 that the real purpose of the s. 11(b) right was to protect the interests of the individual and not of society:

 

    Section 11(b) enunciates an individual right to be tried within a reasonable time for all persons charged with an offence.  I wish to emphasize at the outset that this right is, in its nature, an individual right and has no collective rights dimension.  While society may well have an interest in the prompt and effective prosecution of criminal cases, that interest finds no expression in s. 11(b), though evidently, incidental satisfaction.  The section is primarily concerned with ensuring respect for the interests of the individual.

 

This conclusion seems a sound one. The state can legitimately advance its interests in jury trials through legislation, e.g. the impugned provisions of the Criminal Code , but those interests are not embraced in a section of the Charter designed to protect the individual.  Moreover, to the extent such legislation might infringe interests of the individual protected by s. 11(f), it would have to be justified under s. 1  of the Charter .

 

    The history and importance of jury trials was also discussed by Blair J.A. in R. v. Bryant (1984), 16 C.C.C. (3d) 408.  After a comprehensive overview of the history of the jury trial in England, the United States and Canada, he stated at p. 423:

 

    This history demonstrates that the right of trial by jury is not only an essential part of our criminal justice system but also is an important constitutional guarantee of the rights of the individual in our democratic society.  In all common law countries it has, for this reason, been treated as almost sacrosanct and has been interfered with only to a minimal extent.

 

    The respondent submitted, however, that the right to a jury trial is no longer as important as it once was and that there is nothing inherently unfair about a trial before a judge alone.  The historical significance of the right, he pointed out, was that it protected accused persons in times past when the monarch could exert undue influence on proceedings being conducted in his own courts.  The independence of the judiciary today makes this no longer a factor, and their training and experience, counsel submitted, fully equips judges in modern times to render verdicts without the assistance of a jury.

 

    These are, no doubt, sound submissions but the reality is that the right to a jury trial was guaranteed in the Charter  as recently as 1982 despite the fact that it had not been included in the Canadian Bill of Rights, R.S.C. 1970, App. III.  The inescapable inference would seem to be that the right to a jury trial is viewed as just as important a protection for the accused today.

 

    In my opinion, the language of s. 11(f) is clear and unambiguous. The only qualifications on the right to the benefit of a jury trial under the section are that the maximum punishment for the offence be five years imprisonment or a more severe punishment and that it not be available in the case of an offence under military law tried before a military tribunal.  The maximum punishment for the offence charged against the appellant is life imprisonment.  He is accordingly one of the individuals intended to be protected by the s. 11(f) guarantee.

 

(b)  Section 526.1(1)(a) of the Criminal Code 

 

    Does s. 526.1(1)(a) of the Criminal Code  violate the appellant's s. 11( f )  Charter  right and, if so, does it constitute a reasonable limit on such right which can be demonstrably justified under s. 1?

 

    In R. v. Big M Drug Mart Ltd., supra, Dickson J. (as he then was) set out the test to be applied in determining the constitutionality of impugned legislation.  He said at pp. 331-32:

 

    In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation.  All legislation is animated by an object the legislature intends to achieve.  This object is realized through the impact produced by the operation and application of the legislation.  Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible.  Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity.

 

    Moreover, consideration of the object of legislation is vital if rights are to be fully protected.  The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter .  The declaration that certain objects lie outside the legislature's power checks governmental action at the first stage of unconstitutional conduct.  Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant's need to prove effects violative of Charter  rights.  It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation's actual impact.

 

Dickson J. then went on to specify at p. 334 how this inquiry into purpose and effect should be carried out:

 

    In short, I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test.  If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid.  Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity.  In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

 

    Accordingly, if either the purpose or the effect of s. 526.1(1)(a) is to restrict or deny an accused's constitutional right to a jury trial then the impugned section will be unconstitutional unless it is saved by s. 1 as imposing a reasonable limit on the right.

 

    (i)  Purpose

 

    Bernier J.A., in the pre-Charter case Re Voisard and The Queen (1978), 43 C.C.C. (2d) 570, discussed the purpose of the section at pp. 573-74:

 

    Section 526.1 is a provision which, in all likelihood, has been enacted with a view to guarding against the greatly prejudicial consequences to the good administration of justice resulting from the abuse of accused persons, from their judicial interim release when they do not appear on the date fixed for their trial, or, appearing, elude justice as a consequence, which necessitates the dismissal of jurors or of the jury. By this new provision, the Legislature intended that, save where there is a legitimate excuse, the absence of the accused leads as of right to the loss of his right to a trial with jury, his trial thereupon having to take place before one of the Judges which would have presided over the trial with jury, but acting as a Judge alone.

 

    The loss or the forfeiture of the right to a trial with jury is not left to the discretion either of a Court or of a Judge; it is statutory; it is as of right as soon as the specific conditions are met.  This rule and these conditions are found in the first part of s-s. (1) of the provision.  The section raises the three following conditions:

 

(a)that what is involved is an accused who has been granted interim release (reference to s. 526(1));

 

(b)that this accused was before the Superior Court of criminal jurisdiction following his real or presumed choice for a trial by jury, and that he had not up to that point changed his option;

 

(c)that this accused has failed to appear before this Court on the date fixed, or having appeared, does not remain present for his trial.

 

    When these three conditions are met, the accused has, without prejudice to the exceptions hereinafter treated, lost the right to a trial by jury.

 

    The text is clear.  The brief analysis of it which I have made, in my opinion, does not need explanation; the penalty is rendered in imperative terms: this accused person "ne sera pas jugée selon son premier choix", "he shall not be tried by a court composed of a judge and a jury".

 

    Blair J.A., in R. v. Bryant, supra, discussed the purpose of the section in terms of its legislative history.  He stated at p. 417:

 

The reason for the enactment of s. 526.1 and other amendments to the Criminal Code  by the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, is described by Martin J.A. in R. v. Bray (1983), 40 O.R. (2d) 766 at p. 769, 2 C.C.C. (3d) 325 at p. 328, 144 D.L.R. (3d) 305 at p. 308, as follows:

 

    The Bail Reform Act, 1970-71-72 (Can.), c. 37, introduced a liberal and enlightened system of pre-trial release.  The object of the legislation clearly was to reduce pre-trial detention consistent with securing the attendance of the accused at his trial and the protection of the public interest.

 

                                                                           ...

 

However, after some four years of experience with the new legislation, Parliament, in response to concern by some segments of the public, by the Criminal Law Amendment Act, 1974-75-76 (Can.), c. 93, modified the original legislation...

 

    The over-all purpose of s. 526.1 and the other amendments made to the Criminal Code  in 1975 was to improve the operation of the Bail Reform Act, R.S.C. 1970, c. 2 (2nd Supp.).  More specifically, it was intended to prevent abuse of the judicial process and avoid the expense and inconvenience of abortive jury trials.  Although not expressly stated, the method of accomplishing these purposes was obviously the deterrent effect of the threat of punishment of absconding accused by denial of their right to trial by jury.  [Emphasis in original.]

 

    Counsel for the appellant submits that the purpose of the section is to deter accused persons from absconding in order to protect the state from any administrative inconvenience and expense which might result from their failure to attend at their trials.  The provision is designed to punish accused persons who fail to attend in court when required.  Counsel further submits that denying constitutional rights for the purpose of punishment is not a valid legislative purpose.  He relies on the statement of Blair J.A. in R. v. Bryant, at p. 424, that "To deny Charter  rights simply as punishment is to treat them as mere privileges which a government can take away for improper conduct rather than as entrenched rights beyond the reach of government."

 

    Blair J.A., however, did not find that s. 526.1 had an invalid legislative purpose.  He was of the view that if the only object of s. 526.1 was to punish accused persons for absconding, this would not be a valid legislative purpose.  But he found that the deterrent effect of the punishment was intended to accomplish the broader purpose of overcoming the abuse of the judicial system and other administrative problems arising from the Bail Reform Act, S.C. 1970-71-72, c. 37.

 

    Crown counsel submits that this broader purpose is the purpose of the section.  The purpose of the section, he says, is not to punish the accused but to provide for the efficient administration of justice and in particular to secure the respect of the public for the criminal trial process.

 

    It is, I believe, important in any analysis of the purpose of s. 526.1 to distinguish between the right to a jury trial guaranteed by s. 11( f )  of the Charter  and the right to a jury trial granted by the Criminal Code .  The Criminal Code  itself confers on a person charged with an indictable offence the right to be tried by a judge and jury.  Section 429 (now s. 471) reads as follows:

 

    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.

 

Thus, there are two parallel rights to a jury trial, one provided for by the Code and the other entrenched in the Charter .  If section 526.1 was intended only to take away the election or deemed election of an accused under the Criminal Code , then it is irrelevant whether the purpose of the section is punitive or not.  Rights accorded by the Criminal Code  can presumably be taken away by the Criminal Code  either by way of punishment or for some other purpose.  Parliament can attach any conditions or limitations it wishes to the right it has itself conferred in ordinary legislation.

 

    I have no doubt that there is a punitive aspect to s. 526.1.  Indeed, non-attendance for trial is a separate criminal offence which can be prosecuted and punished as such under s. 133(2) (now s. 145(2)) of the Criminal Code . Accordingly, regardless of the mode of trial an accused has chosen, failure to attend for his trial is a criminal offence.  When an accused has elected a jury trial, however, not only has he committed an offence by failing to attend without a legitimate excuse, he has also lost the right to his chosen mode of trial.  This clearly is an additional penalty.

 

    Since section 526.1 was enacted prior to the Charter , it seems clear to me that the section was not designed to deal with the Charter  right to a jury trial.  It was only intended to deal with the right under the Criminal Code .  The jurisprudence under the Charter  makes it clear, however, that constitutional validity depends not only on purpose but also on effect.  It is necessary therefore to consider not only the purpose of s. 526.1 as it relates (if at all) to s. 11(f) but also its effect (if any) on the s. 11(f) right.

 

    I agree with Blair J.A. that the over-all purpose of s. 526.1 and the other amendments made to the Criminal Code  in 1975 was to improve the operation of the Bail Reform Act, by ensuring that accused persons released on bail showed up for their trials.  The section was enacted in order to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process.  This is clearly a valid legislative purpose.  In furtherance of this objective the legislator may also have had the ancillary object of deterrence and punishment but I am not persuaded that either deterrence or punishment through the denial of the right to a jury trial under the Code was the primary reason for the enactment of the section.

 

    (ii)  Effect

 

    Given that the impugned provision has a valid legislative purpose, namely to promote the efficient administration of justice and ensure public respect for the criminal trial process by depriving an accused who fails to attend for his trial of his right to a jury trial under s. 429 (now s. 471)  of the Criminal Code , what is its effect, if any, on his parallel right to a jury trial under the Charter ?  It seems clear from a reading of the section that if an accused fails to appear for his or her trial and does not thereafter provide the court with a legitimate excuse, then that accused shall not be tried by a court composed of a judge and jury.  Such is the legislative directive under the section.  Can it have the effect of depriving an accused of his or her guaranteed right to a jury trial under the Charter ?  This will depend, it seems to me, on whether the section constitutes a reasonable limit on the s. 11(f) right which can be demonstrably justified in a free and democratic society under s. 1  of the Charter .

 

    The Crown and the interveners submit, however, that it is not necessary to address that question because s. 526.1 does not purport to have that effect.  They submit that it is not the legislation which has the effect of depriving the accused of his Charter  right to a jury trial; it is the conduct of the accused.  That being so, no legislative deprivation or infringement of Charter  rights is involved.  This view has been adopted by some of the lower courts which have considered the constitutionality of the section.  Some have interpreted the accused's conduct as a voluntary waiver of the right.  Others have held it to be a failure to exercise the right.  In either case, they have concluded, all the legislation does is spell out the consequences of the accused's conduct.  I propose to consider both approaches in turn although I appreciate that they are not entirely distinct from one another.

 

    (iii)  Waiver of the Right

 

    The Attorney General of Quebec (intervener) submits that the accused's behaviour in failing to appear for his trial absent a legitimate excuse constitutes a voluntary waiver of his right to a jury trial.  The accused loses his right only if his conduct amounts to a voluntary waiver and it is the absence of a legitimate excuse which permits it to be so viewed.  The Attorney General for Ontario (intervener) adds that if the accused's conduct is found to be tantamount to a waiver, then such waiver complies with the requirements for the valid waiver of a constitutional right.

 

    This approach has been taken by a number of courts.  In R. v. Allan, supra, one of the first cases to deal with the issue, Prowse J. held that when an accused cannot establish a legitimate excuse under s. 526.1(1)(a) then the accused can be said to have waived the right to a jury trial.  McKenzie J. adopted this reasoning in R. v. Gladue, supra, as did Yanosik J. in R. v. Ramirez (1982), 9 W.C.B. 107.  In the latter case the court had this to say at pp. 5-6:

 

Section 526.1(1) provides that he may not now be tried by a Court composed of a judge and jury, and section 526.1(2) says that he is deemed to have elected to be tried by judge alone.  Of his own accord the accused has effectively waived his right to a jury.

 

    The same type of reasoning is found again in R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27, 190 A.P.R. 27 (Nfld. S.C.)  In that case the court applied R. v. Crate (1983), 7 C.C.C. (3d) 127, in which the Alberta Court of Appeal held that no violation of the Charter  occurs where the accused's conduct is tantamount to a deemed re-election.  In R. v. Ryan the court held that although the accused had a right to trial by jury, he may waive that right by re-electing or simply by not turning up for his trial.  In all these cases the same reasoning was applied, namely that it was the accused's conduct, either through waiver or deemed re-election, which denied him his Charter  right and not s. 526.1 of the Criminal Code .

 

    It should be noted that in none of these cases was there any discussion of the requirements of a valid waiver.  In Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, this Court had an opportunity to consider such requirements.  In that case the accused originally elected to be tried by a judge and jury.  At a later date the accused, through his lawyers, clearly expressed his desire to be tried by a judge alone but not in a manner that complied with the procedure set out in the Criminal Code  for re-election.  At issue in the case was whether the accused had waived the procedural requirements for re-election.  After referring to the general proposition that an accused may waive a provision intended for his or her own benefit, Lamer J., speaking for the majority, stated at pp. 49-50:

 

    When one looks at the various cases dealing with waiver, the problem which presents itself relates to what formalities should surround a waiver before the court should accept it and give it effect, in order that it will be a bar to the party seeking to assert a non-compliance with the procedural requirement.

 

                                                                           ...

 

[The validity of any waiver] is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.  [Emphasis in original.]  This has long been recognized, as is illustrated by many cases, and particularly so by those dealing with a judge's duties as regards a plea of guilty, which is the waiver by an accused of his right to put the Crown's case to the test of a trial...The judge's duties concerning any waiver are no different than those on a plea of guilty. The factors he will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement being waived and the importance of the right it was enacted to protect.  However, always relevant will be the fact that the accused is or is not represented by counsel, counsel's experience, and, in my view of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.  [Emphasis added.]

 

    Lamer J. concluded that the accused had clearly and unequivocally expressed the desire to waive his right and had in fact waived his right to the procedural protections for re-election which were designed for his benefit.  This decision suggests that, although the courts may not insist upon strict compliance with formalities before a waiver is given effect, they will insist that there be a clear and unequivocal expression of a desire to waive and that the alleged waiver be made with an understanding of the legal consequences of such an act.  It was also crucial to the finding of an effective waiver in this case that the accused was represented by counsel at the time.  Counsel's presence is obviously significant in ensuring that the accused does understand the legal consequences of his conduct.

 

    This high standard has since been adopted as appropriate for the waiver of Charter  rights, in particular, the right to counsel in s. 10(b).  In Clarkson v. The Queen, [1986] 1 S.C.R. 383, the majority of the Court held that any alleged waiver of the right to counsel must be considered in light of this standard and that the accused's awareness of the consequences of his or her conduct is crucial.  The Court citing Korponay v. Attorney General of Canada with approval went on to state at p. 396 that:

 

... the purpose of the right, as indicated by each of the members of this Court writing in Therens, supra, is to ensure that the accused is treated fairly in the criminal process.  While this constitutional guarantee cannot be forced upon an unwilling accused, any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right.

 

    Indeed, this strict approach to waiver has been incorporated into the standard necessary to waive the constitutionally guaranteed right to a jury trial. In R. v. Turpin, supra, this Court held that the right to a jury trial is a right capable of being waived but that the standard necessary to achieve such a waiver is high.  The Court applied both the requirement that a waiver be clear and unequivocal and that the accused be fully aware of the consequences of such waiver.  The Court stated at p. 1316:

 

    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.

 

    The same cannot be said with respect to the accused in this case.  In my view, simply failing to show up for one's trial does not amount to an intentional repudiation of the right to a jury trial.  Indeed, it has nothing to do with the manner of the trial.  There is no clear and unequivocal renunciation of the right to a trial by jury by failing to show up on the appointed date nor is there any evidence that the appellant was aware that such would be the consequence of his failure to attend.  It should be borne in mind that he was not represented by counsel at the time.

 

    Nor does an accused's inability to provide a legitimate excuse for his failure to appear for his trial provide any support for the proposition that his failure to appear constituted a waiver of his right to a jury trial.  It unquestionably discloses a lack of respect for the administration of justice but does it constitute an abandonment of his Charter  right to one form of trial as opposed to another?  I cannot think so.  There is no direct connection between the accused's failure to appear without a legitimate excuse and the form of his trial.

 

    It may, of course, be argued that in this case the appellant also failed to appear for the selection of a jury (part of his trial for purposes of s. 526.1) and that this failure addresses more directly the form of trial guaranteed him by the Charter .  Clearly in these circumstances the connection between the appellant's conduct and the form of trial is closer but does it manifest a clear and unequivocal intention to forego his right to trial by jury which he had already elected and assiduously maintained despite his failure to appear?  I do not think so.  Although Lamer J. in R. v. Mills, [1986] 1 S.C.R. 863, was prepared to recognize the possibility of "implied" waivers or "deemed" waivers of Charter  rights he seems to have strictly confined them to cases where the accused was represented by counsel.  Where the accused was not represented by counsel (as in this case) the high standard required for an effective waiver continued to apply.

 

    It would be my view, therefore, that the appellant did not expressly or impliedly waive his right to a jury trial in this case.  He initially elected to be tried by a judge and jury and assiduously asserted that right despite his failure to appear for his trial on the appointed date.  He was not represented by counsel at the time and there is no evidence to suggest that he was aware that if he failed to appear without a legitimate excuse he would forfeit his guaranteed right to a jury trial under the Charter .

 

    (iv)  Failure to Exercise

 

    Similar in kind to the argument based on waiver is the submission that the accused by failing to appear without a legitimate excuse has simply failed to exercise his right to a jury trial.  The British Columbia Court of Appeal in Re McNabb and The Queen expressed the view that s. 526.1 did not deprive an accused of his Charter  right; rather, what the section did was to specify the consequences if an accused chose not to exercise his right by failing to appear at his trial.  The Court held that if the accused could satisfy the court that he had a legitimate excuse for failing to appear, then he would not have failed to exercise his right.  But if he had no such excuse, then he would have failed to exercise his Charter  right and could not thereafter be heard to complain that he had been deprived of it.

 

    The nub of this argument is the same as in the argument based on waiver, namely that it is the accused's own conduct and not the statute which deprives him of his Charter  right.  The only difference is that in this case the conduct is characterized as a failure to exercise the right as opposed to a waiver of the right.  Presumably, it is thought through this distinction to avoid the strict standard of proof required in the case of waiver.

 

    It is submitted by the respondent that a right can be lost not only by a failure to exercise it but by a failure to use due diligence in exercising it and reliance is placed on the decision of this Court in R. v. Tremblay, [1987] 2 S.C.R. 435.  Writing for a unanimous Court Lamer J. said at p. 439 of that case which dealt with the s. 10(b) right to counsel:

 

    Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.

 

The "reasonable diligence" test was employed again by this Court in R. v. Ross, [1989] 1 S.C.R. 3, also in the context of an accused's right to counsel.  The argument in the present case would be that if the accused wishes a jury trial then it behooves him to be reasonably diligent in exercising the right by being present for the selection of jurors and by attending for his jury trial on the date fixed, failing which the correlative duty on the state to find jurors and pay for their services is suspended.  I think this argument is premised on a misunderstanding as to how the right to a jury trial is exercised as I hope to show in a moment.

 

    The main argument advanced by the respondent and the interveners is that an accused who chooses not to attend at his trial is not exercising his right to a jury trial.  In support of this assertion, the respondent has cited a number of cases dealing with an accused's deemed waiver of his right to be present at his trial.  This is the same line of cases and the same reasoning as the British Columbia Court of Appeal applied in Re McNabb and The Queen.  The cases arose under ss. 738(3) (a) and 431.1(1)  of the Criminal Code  and the courts consistently held that these sections did not violate ss. 7  and 11( d )  of the Charter  because any deprivation or infringement of the accused's right was the result of his own conduct.

 

    In the first case, R. v. Tarrant (1984), 13 C.C.C. (3d) 219, the British Columbia Court of Appeal had to pronounce on the constitutionality of s. 738(3) (a) of the Criminal Code .  It provides that a summary conviction offence may proceed ex parte to trial where an accused fails to appear.  Seaton J.A. stated at p. 222:

 

. . . I think the argument fails in that it has not been shown that s. 738(3)(a) infringes or denies the right to be present at the trial.

 

    The county court judge said on this issue:

 

    In my view, s. 738(3) does not deprive an accused of his right to be present at his trial.  To exercise this right, all an accused need do is to appear at the time and place appointed for his trial.  If, however, by his own conduct he chooses not to attend and avail himself of this right, he can not be heard later that he had been deprived of his right.

 

 And further he said:    

 

It is implicit in the arguments advanced by the appellant under the Charter  that he has been "deprived" of his right "to life, liberty and security" and of his right to a fair hearing by the provisions of s. 738(3)  of the Criminal Code .  It is my conclusion, however, that if any rights were lost by the appellant, this was not the result of the provisions of the Criminal Code  but rather the result of his own conduct.  [Emphasis added.]

 

    The argument that s. 738 violated the Charter  was also dismissed by the Saskatchewan Court of Appeal in R. v. Rogers, [1984] 6 W.W.R. 89.  The Court was of the view that in order to exercise the right to be present at his trial the accused must appear at the time and place fixed for his trial.  Since no one had tried to interfere with his right to appear at trial or his right to counsel or his right of appeal, no deprivation of the right had occurred.

 

    Similarly, s. 431 of the Code, which permits a trial for an indictable offence to continue even although the accused has absconded, was found to be constitutionally valid in R. v. Czuczman (1986), 26 C.C.C. (3d) 43, and R. v. Tzimopoulos (1986), 29 C.C.C. (3d) 304, (leave to appeal refused, [1987] 1 S.C.R. xv) for substantially the same reasons.  In both cases the courts upheld the deemed waiver provision which provides that an accused who absconds during his trial is deemed to have waived his right to be present at his trial.

 

    Assuming these cases to be correctly decided, it is my view that they have no application to the issue presently before us and do not support the respondent's argument that the appellant failed to exercise his right or that he failed to exercise due diligence in exercising it.  Where an accused does not continue to attend at his trial for an indictable offence, the court must first find that the accused has absconded.  Once the accused is found to have absconded while the trial is in progress, it would seem to be an inescapable inference that he does not wish to be present at his trial.  There is a direct relationship between the accused's decision to abscond and the abandonment of his right to be present at his trial.  The one is a necessary inference from the other.  The same inference can be made with respect to an accused who does not show up for the commencement of his summary conviction trial.  There is a direct relationship between failing to attend for the commencement of the trial and abandoning the right to be present.

 

    By way of contrast, however, it does not follow from the appellant's non-appearance for his trial on the appointed date that he has abandoned his right to a particular form of trial, i.e., the form of trial he has already chosen or has failed to exercise due diligence in exercising it.  In cases such as R. v. Tarrant and R. v. Rogers the mode of exercise of the right in question is to attend at the trial.  Accordingly, if the accused does not attend at the trial he clearly fails to exercise his right.  Seaton J.A. in R. v. Tarrant pointed out this direct connection between mode of exercise of the right to be present and failure to attend and why in these circumstances failure to attend constitutes a failure to exercise.  The right to a jury trial is, however, exercised by the act of election or deemed election (in this case election) and the failure to appear cannot be equated with a failure to elect or a deemed re-election.  Neither can it be equated with a failure to exercise due diligence in making his election in favour of a jury trial.  The distinguishing feature in the two types of cases is, in my view, that failure to appear is quite properly viewed as a failure to exercise where the mode of exercise of the right in question is to appear.  But where the mode of exercise is to elect and an election is made, failure to appear cannot constitute a failure to exercise or a failure to use due diligence.  If the failure to appear is to have legal significance at all it must be as a waiver of the right already properly exercised.  However, as earlier stated, it does not meet the requirements for an effective waiver.  Thus it has not been shown that the appellant clearly and unequivocally intended to abandon his Charter  right or that he was aware that the consequences of his conduct in failing to appear for jury selection and the commencement of his trial would be or could be the loss of his Charter  right to a jury trial.

 

    I would accordingly conclude that it is not the conduct of the accused, either by voluntarily waiving his right or failing to exercise it, that causes the loss of the appellant's s. 11(f) right.  It is s. 526.1 of the Criminal Code  which purports to deprive him of it.  The section cannot stand therefore unless justified under s. 1.

 

(c)  Section 1 of the Charter

 

    Having concluded that s. 526.1 of the Criminal Code  violates s. 11( f )  of the Charter , I must now consider whether it constitutes a reasonable limit on the s. 11(f) right which can be demonstrably justified in a free and democratic society under s. 1.  It is well established that the onus at this stage of the inquiry rests on the party seeking to uphold the limitation, in this case the respondent: see R. v. Oakes, [1986] 1 S.C.R. 103.  The two stage test setting out the criteria for determining whether a limitation is reasonable or not under s. 1 was clearly articulated by Dickson C.J. in R. v. Oakes and later summarized by him as follows in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at pp. 768-69:

 

    Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society.  First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right.  It must bear on a "pressing and substantial concern".  Second, the means chosen to attain those objectives must be proportional or appropriate to the ends.  The proportionality requirement, in turn, normally has three aspects:  the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.  The Court stated that the nature of the proportionality test would vary depending on the circumstances.  Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

 

    As discussed earlier, the purpose of s. 526.1 seems to be to further the orderly and efficient administration of justice and thereby public respect for the criminal justice system and the jury trial process in particular.  This purpose is sought to be achieved under the section by depriving the accused of his right to a jury trial if he fails to appear and has no legitimate excuse for so doing.

 

    The respondent and interveners have strongly urged that the objectives of providing for the proper administration of justice and securing public respect for the criminal trial process are of sufficient importance to warrant overriding the Charter  right of an accused to have a jury trial.  In support of this contention the respondent has entered affidavits, sworn by court administrators, originally for use in the McNabb appeal, concerning the magnitude of the mischief the impugned provision is designed to address.

 

    The evidence was to the effect that in the Vancouver County Court the number of accused for whom a jury is to be selected generally varies from one to five.  Usually several different juries are picked at the same sitting and for each accused person for whom a jury is to be selected sixty potential jurors are on average summoned to court.  Thirty potential jurors are actually required to attend to form the panel from which the jurors are selected and they are paid $15 for their time.  Therefore, where an accused fails to appear the amount paid out to potential jurors is on average $450.  The administrative costs of summoning and assembling the panel is estimated to be approximately $632 for each accused.  Therefore, it is estimated that the average cost when an accused fails to appear for a jury selection is $1,082.  For each day subsequent to the jury selection jurors are paid $25 with administrative costs of approximately $151 for a total cost of approximately $451 per day.

 

    The records of the Vancouver County Court indicate that 311 jury trials were scheduled for that court in 1985.  In 108 of these cases the trial proceeded as scheduled, in 177 cases the trial did not proceed for various reasons including changes of plea and re-elections by the accused, granting of adjournments, and stays of proceedings.  In 26 of these cases the trial did not proceed because of the accused's failure to attend.

 

    Evidence was presented to the effect that in the Vancouver Supreme Court 150 - 200 potential jurors are on average summoned with 75 - 100 actually required to attend to form the panel for every accused who must select a jury.  Each person on the panel is paid $15.  Therefore, when an accused fails to appear for jury selection the amount paid to potential jurors is approximately $1,125.  The administrative costs of summoning and assembling a panel is approximately $794 for each accused.  Therefore, it is estimated that the average cost when an accused fails to appear for jury selection in Supreme Court for the district of Vancouver is $1,919.  For each day subsequent to the jury selection jurors are paid $25 with administrative costs of approximately $151 for a total cost of approximately $451 per day.

 

    The records of the British Columbia Supreme Court indicate that 52 jury trials were scheduled for that court in 1985.  In 33 of these cases the trial proceeded as scheduled, in 19 cases the trial did not proceed for various reasons including changes of plea and re-elections by the accused, adjournments, and stays of proceedings.  In none of the 52 cases did the trial not proceed because of the accused's failure to attend.

 

    In my view, what the evidence suggests is that failing to attend is not a major problem.  For example, of the 311 jury trials scheduled for the Vancouver County Courts only 26 did not proceed to trial because of the accused's failure to attend in court.  While only 108 of those 311 proceeded on schedule, 177 of them were delayed for other reasons including change of plea, re-elections and adjournments.  Each time a jury trial was delayed it was estimated to cost $1,082.  While this is not a trivial figure, it is important to note that the magnitude of the mischief that s. 526.1 was aimed at pales in comparison to the costs of adjournments and re-elections.  The record in the Supreme Court of British Columbia was even less compelling as in none of the 52 cases involving a jury trial was the trial delayed because the accused failed to attend.  On the other hand, 19 of those cases were delayed for these other reasons.

 

    The respondent has submitted no other evidence to support the legislative objective of s. 526.1 as pressing and substantial nor is there any evidence to suggest that the section has had any effect whatsoever on the number of jury trials delayed due to an accused's failure to appear.  Counsel for the respondent states that it may be thanks to the impugned provision that the number of absconders is not higher but he presents no evidence to substantiate this claim.

 

    The Attorney General of Quebec submitted a report by Alain Baril, an "analyste au Service d'étude en rendement organisationnel", in which the cost of a jury trial in Quebec is discussed.  It estimates the cost of summoning potential jurors for a criminal trial at $5,950.  This evidence, however, is of little assistance as no statistics are included as to how frequently, if ever, a jury trial is postponed because of an accused's failure to attend.

 

    In my view, it cannot be said that the respondent has met the onus of establishing that s. 526.1 meets a pressing and substantial concern.  It has not been shown that non-appearing accused is a major problem.  There is accordingly nothing to support the purpose of the legislation as sufficiently compelling to justify the violation of a guaranteed right under the Charter .  The objective is mainly concerned with efficiency in the operation of the criminal justice system and the expense incurred for jury trials.  Many of the rights in the Charter  and other legal rights run counter to this concern about efficiency and cost.  But reducing administrative inconvenience and reducing expense are not, in my view, sufficient objectives to override such a vital constitutional right.  I find the words of Blackstone (Blackstone's Commentaries on the Laws of England, Book 4 (1897, W. D. Lewis, ed.), at p. 1735), on the subject of trial by jury very apt:

 

So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience.  And however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.  Emphasis added].

 

    However, if I am wrong in this and s. 526.1 does address a pressing and substantial concern over diminishing public respect for the criminal justice system because of the failure of accused persons to attend for their trials, I am of the view that the denial of the right to a jury trial is not a proportionate response to that concern.  While it is undoubtedly rationally connected to the concern and would act as an effective deterrent against the evil at which it is directed, it seems to me that it fails to meet another requirement of the proportionality test, namely that it impairs the right as little as possible.  There are other means of addressing the pressing and substantial concern without depriving an accused of his Charter  right to a jury trial and, indeed, the legislature has adopted one of them by making the failure to appear for trial a separate and distinct criminal offence.  In other words, s. 526.1 seems to represent a case of overkill in that the severity of the measure, i.e., the complete deprivation of the right, is not justified by the purpose it is intended to serve.

 

5.  Disposition

 

    I would allow the appeal, set aside the conviction, and order a new trial before a judge and jury.  I would answer the constitutional questions as follows:

 

    1.Does s. 526.1(1)(a) of the Criminal Code  infringe or deny the right to trial by jury guaranteed by s. 11( f )  of the Canadian Charter of Rights and Freedoms ?

 

Yes.

 

2.If so, then is s. 526.1(1)(a) of the Criminal Code  justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

No.

 

//Gonthier J.//

 

    The following are the reasons delivered by

 

    GONTHIER J. -- I have had the advantage of reading the reasons for judgment by my colleagues Justice Lamer and Justice Wilson.  I agree with Wilson J.'s recital of the facts, the decisions in the courts below and the issues.  However, I reach an opposite conclusion as to the first constitutional question raised and would dismiss the appeal.

 

    The issues raised by this appeal are expressed in the following constitutional questions:

 

1.Does s. 526.1(1)(a) of the Criminal Code  infringe or deny the right to trial by jury guaranteed by s. 11( f )  of the Canadian Charter of Rights and Freedoms ?

 

2.If so, then is s. 526.1(1)(a) of the Criminal Code  justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

Issue 1

 

    Section 526.1 of the Criminal Code, R.S.C. 1970, c. C-34, (now s. 598) reads:

 

    526.1 (1)  Notwithstanding anything in this Act, where a person to whom subsection 526(1) applies has elected or is deemed to have elected to be tried by a court composed of a judge and jury and, at the time he failed to appear or to remain in attendance for his trial, he had not re-elected to be tried by a court composed of a judge without a jury or a magistrate without a jury, he shall not be tried by a court composed of a judge and jury unless

 

(a)  he establishes to the satisfaction of a judge of the court in which he is indicted that there was a legitimate excuse for his failure to appear or remain in attendance for his trial; or

 

(b)  the Attorney General requires pursuant to section 498 that the accused be tried by a court composed of a judge and jury.

 

    (2)  An accused who, pursuant to subsection (1), may not be tried by a court composed of a judge and jury is deemed to have elected under section 464 to be tried by a judge of the court in which he is indicted without a jury and section 491 does not apply in respect of the accused.

 

    I observe at the outset that s. 526.1 of the Criminal Code  does not deny a trial by jury in every situation where the accused has failed to appear for his trial at the requisite time.  This occurs only where the accused can provide no legitimate excuse for his failure to appear or to remain in attendance for his trial, or where the Attorney General does not require that the trial be conducted in the presence of a jury.

 

    I also note that s. 526.1 is merely one of several Criminal Code  provisions dealing with the election by an accused of his mode of trial.  The provisions of the Criminal Code  dealing with this subject together govern the means by which an accused may exercise his right under s. 11( f )  of the Canadian Charter of Rights and Freedoms .

 

    Section 11( f )  of the Charter  provides:

 

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;

 

    The appellant contends that s. 526.1(1)(a) of the Criminal Code  operates as a denial of his right under s. 11( f )  of the Charter .  He argues that the purpose and effect of that section are inconsistent with the constitutionally guaranteed right to a trial by judge and jury.

 

(1)  Purpose of s. 526.1(1)(a)

 

    I agree entirely with my colleague Wilson J., at p. 000, that s. 526.1(1)(a) was designed "to protect the administration of justice from delay, inconvenience, expense and abuse, and to secure the respect of the public for the criminal trial process ... clearly a valid legislative purpose".

 

(2)  Effect of s. 526.1(1)(a)

 

    On the question of the impugned section's effect, however, I must respectfully disagree with my colleague.  It is my conclusion that s. 526.1(1)(a) does not, by its effect, offend s. 11( f )  of the Charter .

 

    The appellant argues that the effect of s. 526.1(1)(a) is to deprive an accused who has elected trial by judge and jury of his right to a jury trial where he fails to appear for or remain in attendance at his trial and can provide no legitimate excuse for his conduct.  He asserts that the effect of the section is to create a different rule for jury and non-jury trials, since failure to appear at a non-jury trial entails no procedural penalty of the type associated with the absence of the accused from a trial with jury.

 

    The appellant takes issue with the recent line of cases which have held that an accused who fails to appear at his jury trial without a reasonable excuse fails to exercise, waives, or is deemed to have waived his right under s. 11(f).  He submits that Charter  rights cannot be removed unless the accused clearly elects, in an express, voluntary, informed and unequivocal manner, to forego them.

 

(a)  Failure to Exercise

 

    I disagree with the view that the election (or deemed election) by the accused of a trial by jury constitutes the complete exercise of his right.  It is my opinion that, in order to exercise his right under s. 11( f )  of the Charter , an accused must appear in court at the requisite time.  I am in agreement with the statement of Hinkson J.A. in Re McNabb and The Queen (1986), 33 C.C.C. (3d) 266, at p. 271, quoted by my colleague:

 

In my opinion, the accused must not only exercise his right to trial by jury when he elects the mode of his trial but he must continue to exercise that right in order to enjoy the benefit of trial by jury.  Thus, if the accused does not elect trial by jury it is not open to him to complain thereafter that he has been denied his Charter  right.  It is not enough, however, for the accused to elect trial by judge and jury in order to exercise his Charter  right.  He must continue to exercise it by attending for his trial before a judge and jury when required to do so.  And once the trial commences before a judge and jury, he must remain in attendance during the course of the trial until a verdict is rendered.  If by his own conduct he chooses not to attend at his trial, he is not exercising his right to a trial by judge and jury.

 

    An accused who is denied a jury trial under s. 526.1(1)(a) of the Criminal Code  may not, in my view, assert that he has been deprived of his right under s. 11( f )  of the Charter .  An accused who, for no legitimate reason, fails to appear or to remain in attendance for his jury trial has no one to blame but himself for the consequences he must bear pursuant to s. 526.1(1)(a) of the Criminal Code .  Charter  rights must not be taken lightly either by the state or by the citizens whom they are meant to protect.  The accused person who does not avail himself of his Charter  right to a jury trial according to as reasonable a procedure as that set out in s. 526.1(1)(a) cannot later voice the objection that he has been dispossessed of that right.  No concept of deprivation of a right can arise in such circumstances.  It is the accused's own inertia and not an act of the state which brings about the application of s. 526.1(1)(a).  By his own conduct, the accused has failed to exercise his right under s. 11(f).  It is simply illusory, in my view, to speak in such circumstances of state denial of a Charter  right.

 

    Section 526.1(1)a) of the Criminal Code  merely prescribes the way in which an accused must exercise his right to a jury trial.  I respectfully disagree with my colleague Wilson J. that the exercise of the right to trial by jury is complete and is firmly crystallized by the election or deemed election by the accused.  Parliament has imposed an additional requirement, namely the appearance and continued attendance of the accused at his trial, barring a legitimate excuse for his failure to do so.  Section 526.1 of the Criminal Code  deals with the manner in which the right to trial by jury is to be exercised and provides for the mode of trial in the event the accused does not exercise his right.  This is both reasonable and legitimate, serves a valid legislative purpose and, by imposing a continuing commitment of the accused to his initial election, far from impeding the right to trial by jury, enhances respect for this right given by the Charter  and the fulfilment of its purpose.   I therefore conclude that s. 526.1 is not inconsistent with s. 11( f )  of the Charter .

 

(b)  Waiver

 

    It has been held in a number of cases that an accused who fails to appear or to remain in attendance for his jury trial without a reasonable excuse waives his right under s. 11(f).  The cases in which this approach has been taken, which have been summarized in some detail by my colleague Wilson J., stand for the proposition that an accused, by displaying the conduct provided for in s. 526.1(1)(a), rejects his right to be judged by a judge and jury and chooses or must be deemed to have chosen another mode of trial.  (See:  R. v. Allan (1982), 2 C.R.R. 46 (Alta. Q.B.); R. v. Gladue (1982), 2 C.C.C. (3d) 175 (B.C.S.C.); R. v. Ramirez (1982), 9 W.C.B. 107 (Alta. Q.B.); R. v. Ryan (1986), 62 Nfld. & P.E.I.R. 27 (Nfld. S.C.T.D.))

 

    In my view, however, it is unnecessary to decide this issue in order to dispose of this appeal.  The accused person who does not appear in court at the date set for his jury trial has simply not exercised his right under s. 11( f )  of the Charter .  It is inappropriate to speak of waiver of a right which has not crystallized.

 

Issue 2

 

    In view of my ruling on the first issue raised by this appeal, the question as to whether s. 526.1(1)(a) can be saved by s. 1  of the Charter  is not reached and need not be dealt with.  However, having had the benefit of reading my colleague Lamer J.'s reasons for finding that s. 526.1(1)(a) of the Criminal Code  is justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , I would agree with him had I found that s. 526.1(1)(a) infringed the right to trial by jury guaranteed by s. 11( f )  of the Charter .  I also add the following comment.  In my opinion, the central purpose for the requirement of appearance and continued attendance of the accused at his trial is to enhance the respect of the accused and the public for such a trial.  This requirement is the most directly related and proportionate means of achieving that purpose.  The value of a right is to a large extent measured by that which attaches to it both in terms of requirements for its exercise and benefits to be derived from it.  Appearance and continued attendance of an accused at his trial, barring a legitimate excuse for his failure to do so, is indeed a minimal requirement for his exercise of the right to a trial by jury.

 

Disposition

 

    For the above-mentioned reasons, I would answer the constitutional questions as follows:

 

1.Does s. 526.1(1)(a) of the Criminal Code  infringe or deny the right to trial by jury guaranteed by s. 11( f )  of the Canadian Charter of Rights and Freedoms ?

 

                            No.

 

2.If so, then is s. 526.1(1)(a) of the Criminal Code  justified on the basis of s. 1  of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?

 

                            Does not arise.

 

 and I would dismiss the appeal.

 

    Appeal dismissed, WILSON and SOPINKA JJ. dissenting.

 

    Solicitors and co-solicitors, respectively, for the appellant:  Davis & Company, Vancouver, Warren & Company, Vancouver.

 

    tSolicitor for the respondent:  John C. Tait, Ottawa.

 

    Solicitor for the intervener the Attorney General for Ontario:  The Attorney General for Ontario, Toronto.

 

    Solicitor for the intervener the Attorney General of Quebec:  The Attorney General of Quebec, Ste-Foy.