R. v. Bain, [1992] 1 SCR 91

R. v. Bain, [1992] 1 S.C.R. 91

 

Craig Alexander Bain  Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada                                                     Intervener

 

Indexed as:  R. v. Bain

 

File No.:  21401.

 

1991:  June 26; 1992:  January 23.

 

Present:  Lamer C.J. and La Forest, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to impartial tribunal ‑‑ Jury selection ‑‑ Crown's right to stand jurors aside ‑‑ Peremptory challenges ‑‑ Whether s. 563 of the Criminal Code  inconsistent with s. 11(d) ‑‑ If so, whether saved by s. 1 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11(d)  ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 562(1), (2), (3), 563(1), (2), (3), 567(1)(a), (b), (c), (e), (f), (2), 570(1), (2).

 

                   Criminal law ‑‑ Jury selection ‑‑ Crown's right to stand jurors aside ‑‑ Peremptory challenges ‑‑ Whether s. 563 of the Criminal Code  inconsistent with s. 11(d) ‑‑ If so, whether saved by s. 1.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to counsel ‑‑ Accused wishing to know if lawyer hired ‑‑ Accused asked if father had telephoned ‑‑ Question answered literally by police and accused not told that lawyer hired by his father ‑‑ Accused interviewed and statements made ‑‑ Whether or not statements admissible ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b) .

 

                   Evidence ‑‑ Admissibility ‑‑ Infringement of right to counsel ‑‑ Accused interviewed and statements made ‑‑ Whether or not statements admissible.

 

                   The police arrested appellant for sexual assault and informed him of his rights to counsel and to silence.  The appellant's father had been unable to retain a lawyer when appellant was taken into custody and was to call when he had retained one.  The lawyer, who was retained shortly afterwards,  telephoned the police.  The police told him of the circumstances of the investigation and that the appellant would probably be released later that day; he in turn told the police officer not to take any statement from the appellant until he was present.  Appellant testified that he asked the officer whether his father had called, that he was told that he had not and that he could contact his father later.  The officer did not inform the appellant that his father had retained a lawyer or that the lawyer had telephoned.  The police officers initiated an interrogation of the appellant.  The admissibility of evidence--first, that allegedly given in the police car and, second, that given later during the interrogation conducted after a lawyer had been retained--was disputed.  Only the former was admitted at trial.

 

                   Appellant was tried before a judge and jury.  Following arraignment, but before the first prospective juror was asked to step forward, the court ruled, on a motion by appellant's counsel, that both the Crown and the defence each be limited to four peremptory challenges and that the Crown be denied the power to stand jurors by.  The court noted the Crown's objection.  The jurors were then selected with both the defence and the Crown exercising their four peremptory challenges.

 

                   The jury acquitted the appellant.  The Court of Appeal, however, allowed the Crown's appeal and ordered a new trial.  The appellant appealed as of right and two constitutional questions were stated:  whether ss. 562  and 563  of the Criminal Code  were inconsistent with s. 11( d )  or s. 15  of the Canadian Charter of Rights and Freedoms  and, if so, whether ss. 562 and/or 563 were justified by s. 1.  Also at issue was whether the trial judge erred in excluding the statements made after the lawyer had been retained.

 

                   Held (Gonthier, McLachlin and Iacobucci JJ. dissenting):  The appeal should be allowed.  Sections 563(1)  and (2)  of the Criminal Code  were inconsistent with s. 11( d )  of the Charter ; this violation was not justified under s. 1.

 

                   Per Lamer C.J., La Forest and Cory JJ.:  The implementation of the impugned provisions would lead a reasonable person, fully apprised* of the Crown's extensive rights in selecting a jury, to conclude that there was an apprehension of bias contrary to s. 11( d )  of the Charter .  This infringement was not justified under s. 1.  The ideal of absolute equality is not required by the Charter .  However a discrepancy of 4.25 to 1 in favour of the Crown, when the Crown's ability to stand by is compared to the accused's right to peremptorily challenge, is so unbalanced that it gives an appearance of unfairness or bias against the accused.  These provisions permit the Crown to obtain a jury that would at the very least appear to be favourable to its position rather than an unbiased jury.  A criminal trial must be fairly conducted.  It cannot be forgotten that it is the jury that must make the ultimate decision as to the guilt or innocence of the accused.

 

                   Per Stevenson J.:  Section 11( d )  of the Charter  requires that an accused person receive a fair trial by an independent and impartial tribunal.  The test for both judicial independence and impartiality is whether the tribunal may be reasonably perceived as such.  A jury need not be found to be actually partial before an infringement of the Charter  is found.  The informed observer's perception that the system of selecting jurors impairs impartiality is sufficient.  If one party enjoys a greater influence, the observer need only have a reasonable apprehension of partiality.

 

                   The disparity between the accused's and the Crown's right to challenge jurors cannot meet the test.  The stand by cannot be upheld because it allows the Crown to have a greater role in fashioning the jury.  The Crown may take partisan interests into consideration in carrying out that role.  The accused's role is thereby significantly diminished, impairing the appearance that the jury is indifferent as between the Crown and the accused.  The substantial disparity contained in this legislation exists not in a mere procedure or rule but in the role each party has in choosing the jury.

 

                   The peremptory challenge is "purely subjective"  and a stand by, which can be exercised until the whole panel has been called, is its equivalent.  The Crown, in exercising its stand by power, can achieve a peremptory challenge, effectively deferring a challenge for cause or peremptory challenge.  The stand by is not a "deferred challenge for cause" because, with large jury panels, a juror who is stood by will not be recalled in many cases.

 

                   The observer of the process is bound to conclude that, absent some control, the Crown possesses a substantial advantage and can effectively influence the make‑up of that jury under partisan considerations.  Professed good intentions cannot be relied on such a disparity.  The Crown is not uninterested in securing convictions of accused persons.  Section 563 provides for the apparent transformation of this interest into reality and so offends s. 11( d )  of the Charter .

 

                   The relative roles of the accused and the Crown in selecting the jury are not comparable to other procedures within the trial process.  The jury must be, and must be seen to be, impartial.  When the Crown enjoys a tactical advantage, as occurs because of the stand bys, the accused's role in selecting his or her jury is diminished.

 

                   The peremptory challenge is not, itself, under attack.  It may be used under partisan considerations, and, so long as the right of exercise is proportionate, neither the Crown nor the accused can be said to have an unconstitutional advantage.

 

                   The Crown did not establish that this Charter  breach was demonstrably justified in a free and democratic society.  No pressing concern justifying a limitation was demonstrated.

 

                   The trial judge correctly excluded the statements.  The police, given compliance with the s. 10(b) requirement of advising the accused without delay of his right to counsel, have no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.  An accused, once informed of the right to counsel, has the onus of showing the opportunity to contact counsel was denied.  Here, the police had a responsibility of doing more than literally answering the appellant's question whether his father had called.  A literal response was misleading because the obvious intent of the inquiry was to further the objective of communicating with counsel.

 

                   Per Gonthier, McLachlin and Iacobucci JJ. (dissenting):  As regards independence and impartiality of the tribunal in criminal cases, ss. 7  and 11( d )  of the Charter  are congruent.  Section 11( d )  of the Charter  merely enunciates a particular aspect of the general protection against deprivations of the right to life, liberty and security of the person found in s. 7  of the Charter .  Arguments made under s. 11( d )  of the Charter  apply with equal force to s. 7 .

 

                   These reasons do not depend on whether Crown peremptory challenges and stand bys are distinguishable or not in practice, and hence it was assumed that they were not.

 

                   The apprehension of bias must be a reasonable one, held by reasonable and right‑minded persons applying themselves to the question and obtaining thereon the required information; the grounds for that apprehension must be substantial.  An allegation of institutional partiality is serious and generally implies that the legal framework surrounding the institution in question is itself flawed, irrespective of the particular circumstances of the various cases.

 

                   In the case at bar, it was not sufficient, for a determination under s. 11( d )  of the Charter , simply to take notice of the disparity between the Crown and the accused in the jury selection process and then to conclude that a reasonable apprehension of bias arose.  The right‑minded observer must consider the question and seek information in order to make an informed opinion.

 

 

                   A jury must be representative, impartial and competent.  Random selection, which favours representativeness, provides a certain guarantee that the jury will also be impartial, but this is by no means true in all cases.  The Criminal Code  offers to the parties various means of challenging prospective jurors, whether collectively or individually, in order to bolster the impartiality of the jury.  A proper jury, by implication, must also be competent.  Jurors should also be able to understand the trial, their role in the trial, the evidence that is presented, the principles they have to apply, among other things.  Most trials require the same competence as is involved in the daily pursuit of one's affairs, and the ability to speak and understand one of the official languages will suffice.  Some trials are more complex and complicated, however, and a tampering with randomness may be appropriate to achieve a minimal ability to understand the evidence and issues.

 

                   The accused has a fairly clear and circumscribed role in the trial and in the jury selection process.  He or she is expected to do nothing more than try to avoid conviction and punishment by asserting his or her rights according to law.  The accused, however, has no right to a jury of his or her choice.

 

                   The role of the Crown in the jury selection process, as in the trial as a whole, is not only different, but also asymmetrical.  The Crown Attorney has a quasi‑judicial role and must ensure that the jury is representative, impartial and competent.  These qualities, especially impartiality, must not be sought to secure a conviction but rather to select the best jury to try the case.  Indeed the Crown Attorney should use the means at his or her disposal to exclude prospective jurors that could be biased in favour of the prosecution, even if the defence is not aware of this fact.  Through this role, in conformity with its general duties, the Crown addresses the need to be able to exclude prospective jurors who would not fall under any of the statutory grounds of exclusion but whose presence on the jury would nevertheless impair its impartiality, its representativeness or its competence.  It provides the element of flexibility.

 

                   The relatively large number of challenges and stand bys given to the Crown is consistent with the need for flexibility in the process.  It is not incumbent upon the Court to inquire into the adequacy of the actual numbers contained in the Code.  They are the result of historical compromises and whether they are still adequate today are questions better left for Parliament to decide.

 

                   The possibility of a large number of Crown interventions in jury selection enables the Crown fully to play its role when the situation so requires.  The Crown will not exercise all of its four challenges and 48 stand bys merely because it holds them.  In fact, a proper exercise of its role would call for restraint.  Since the Crown plays this important quasi‑judicial role and infuses some flexibility into the jury selection process, it is only normal that the means of exclusion at its disposal also allow some room for manoeuvre.  Moreover, the limit of 48 itself is flexible, since upon judicial authorization it can be increased.  The well-informed observer would see this disparity as a reflection of the asymmetry between the roles of the accused and of the Crown attorney.

 

                   The observer would not see any clear link between the jury selection process and the impartiality of the empanelled jury.  Given the dearth of information made available, it is not apparent that parties can influence the verdict by challenging or standing by prospective jurors.  Indeed, any attempt to influence the verdict of the jury by hand‑picking its members, unless it can be done on such a grand scale as to affect the whole jury, is bound to run against the unanimity requirement, and its efficacy may therefore be highly doubted by the observer.  To argue that a mere disparity in the jury selection process suffices to predetermine the verdict and to render the whole trial unfair denies the very essence of the trial.  The criminal trial as a whole is an adversarial process, designed to lay before the jury all the evidence and all the arguments that are relevant to its decision.  If the verdict could be determined at the jury selection stage, the trial would serve little purpose.

 

                   The well‑informed observer, knowing the qualities expected in a good jury (impartiality, representativeness and competence), understands the difference between the roles of the accused and the Crown in the jury selection process as well as the tenuous relationship of peremptory challenges and stand‑asides with the impartiality of the jury and the fairness of the trial as a whole.  Considering these factors, a disparity in the means afforded to the parties does not create in this observer an apprehension that the jury is systematically partial because of the operation of the provisions of the Criminal Code .

 

                   No evidence was given as to abusive Crown practice.  Should Crown abuse occur, it can be adequately dealt with on an individual basis.  The court must be mindful that the Charter 's purpose is the unremitting protection of individual rights.  The trial judge must ensure that the prosecution is not abusing its power of stand bys and allay any apprehension as to partiality.

 

                   Section 686(1)(b)(iv) (formerly s. 613(1)(b)(iii)) only applies to irregularities in procedure which are so serious in nature that they are deemed to be matters of substance which result in a loss of jurisdiction:  annulments for jurisdictional grounds are limited to cases where prejudice to the accused has occurred, provided the court had jurisdiction over the class of offences in question.  Here, the problem was not one of application of the jury selection rules which could have been saved by s. 686(1)(b)(iv).  The jury, together with the trial judge, is the court and if the jury is not properly constituted according to the rules, the court exists no more than if the judge had been unlawfully appointed.  The rules were changed and the jury selected pursuant to other rules than those set out in the Code.  There was therefore no trial court properly constituted, and the appropriate sanction was annulment.

 

                   The trial judge was in a better position to rule on the admissibility of the statements than the Court of Appeal.  That court should not have interfered with his determination.  The issue of the admissibility of the statement which had been admitted was moot.

 

Cases Cited

 

By Cory J.

 

                   Referred to:  R. v. Grover, [1991] 3 S.C.R. 387, adopting the dissenting reasons in (1990), 56 C.C.C. (3d) 532; R. v. Logiacco (1984), 11 C.C.C. (3d) 374; R. v. Pizzacalla (1991), 5 O.R. (3d) 783.

 

By Stevenson J.

 

                   Considered:  Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lippé, [1991] 2 S.C.R. 114; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; R. v. Johnstone (1986), 26 C.C.C (3d) 401; R. v. Cecchini (1985), 22 C.C.C. (3d) 323; R. v. Piraino (1982), 67 C.C.C. (2d) 28; R. v. Ross (1986), 53 C.R. (3d) 81; R. v. Barrow, [1987] 2 S.C.R. 694;  referred to:  R. v. Greig, [1987] 56 C.R. (3d) 229; R. v. Varga (1985), 18 C.C.C. (3d) 281; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Logan (1988), 46 C.C.C. (3d) 354; Morin v. The Queen (1890), 18 S.C.R. 407; Cloutier v. The Queen, [1979] 2 S.C.R. 709; R. v. Mason, [1981] Q.B. 881; R. v. Pizzacalla (1991), 5 O.R. (3d) 783; R. v. Favel (1987), 39 C.C.C. (3d) 378; R. v. Stoddart (1987), 37 C.C.C. (3d) 351;  R. v. Baig, [1987] 2 S.C.R. 537.

 

By Gonthier J. (dissenting)

 

                   Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; MacKay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; R. v. Lippé, [1991] 2 S.C.R. 114; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Texas & Pacific Railway Co. v. Hill, 237 U.S. 208 (1915); Mansell v. The Queen (1857), 8 El. & Bl. 54, 120 E.R. 20; R. v. Barrow, [1987] 2 S.C.R. 694; R. v. Stoddart (1987), 37 C.C.C. (3d) 351; R. v. Johnstone (1986), 26 C.C.C. (3d) 401; Mansbridge v. R., Que. C.A. 200-10-000149-851, October 1, 1991, JE 91-1653; R. v. Ross (1986), 53 C.R. (3d) 81; R. v. Piraino (1982), 67 C.C.C. (2d) 28; R. v. Bolduc (1986), 4 Q.A.C. 201; R. v. Curtis (1989), 74 Nfld. & P.E.I.R. 227; R. v. Foote (1985), 65 N.B.R. 444; Batson v. Kentucky, 476 U.S. 79 (1986); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Pizzacalla (1991), 5 O.R. (3d) 783; R. v. Cloutier (1988), 43 C.C.C. (3d) 35.

 

Statutes and Regulations Cited

 

Act to amend the Criminal Code (respecting jurors), S.C. 1917, c. 13, s. 1.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 10( b ) , 11( d ) , 15 .

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 246.1, 429, 558, 562(1), (2) [rep. & sub. S.C. 1974-75-76, c. 105, s. 10], (3), 563(1), (2), (3), 567(1) [am. S.C. 1977-78, c. 36, s. 5], (2), 570(1), (2), 577, 613(1)(b)(iv) (now R.S.C., 1985, c. C‑46 , ss. 271.1, 471 , 536(2) , 629 , 633(1) , (2) , (3) , 634(1) , (2) , (3) , 638(1) , (2) , 641(1) , (2) , 650 , 686(1) (b)(iv)).

 

Criminal Code , S.C. 1917, c. 13, s. 1.

 

Criminal Code , 1892, S.C. 1892, c. 29, s. 668(9).

 

Criminal Justice Act 1988, (U.K.) 1988, c. 33.

 

Juries Act, R.S.N.S. 1989, c. 242, s. 6.

 

Juries Act, R.S.O. 1980, c. 226, s. 12.

 

Juries Act, 1825 (Eng.), 6 Geo. 4, c. 50, s. 29.

 

Juries Act 1974 (Eng.), 1974, c. 23.

 

Jurors Act, R.S.Q., c. J‑2, s. 15.

 

Jury Act, R.S.B.C. 1979, c. 210, s. 9.

 

Jury Act, R.S.M. 1987, c. J30, s. 17.

 

Jury Act, R.S.P.E.I. 1988, c. J‑5, s. 11.

 

Jury Act, S.A. 1982, c. J‑2.1, s. 7.

 

Jury Act, S.N. 1980, c. 41, s. 17.

 

Jury Act, S.N.B. 1980, c. J‑3.1, s. 13.

 

Jury Act, 1981, S.S. 1980-81, c. J‑4.1, s. 6.

 

Ordinance for Inquests (Eng.), 33  Ed. 1, c. 4.

 

28 U.S.C. § 1866(c)(2).

 

Authors Cited

 

Babcock, Barbara Allen.  "Voir Dire:  Preserving 'Its Wonderful Power'" (1975), 27 Stan. L. Rev. 545.

 

Baldwin, John and Michael McConville.  Jury Trials.  Oxford:  Clarendon Press, 1979.

 

Blackstone, Sir William.  Commentaries on the Laws of England, Vol. 4.  Edited by William Draper Lewis.  Philadelphia:  Rees Welsh & Co., 1900.

 

Bull, Henry H.  "The Career Prosecutor in Canada" (1962), 53 J. Crim. L.C. & P.S. 89.

 

Canada.  House of Commons Debates.  Vol. V, 7th Sess., 12th Parl., Aug. 9, 1917, p. 4309.

 

Canada.  Law Reform Commission.  Report 16.  The Jury.  Ottawa:  Minister of Supply and Services Canada, 1982.

 

Canada.  Law Reform Commission.  Working Paper 27.  The Jury in Criminal Trials.  Ottawa:  Law Reform Commission, 1980.

 

Devlin, Sir Patrick.  Trial by Jury.  London:  Stevens & Sons: 1966.

 

East, Robert J.  "Jury Packing:  A Thing of the Past?" (1985), 48 Mod. L.R. 518.

 

Halsbury's Laws of England.  Annual Abridgment 1988.  London:  Butterworths,             1989.

 

Hébert, Jean-Claude. "Le contrôle judiciaire de certains pouvoirs de la couronne".  In Droit pénal -‑ orientations nouvelles.  Cowansville, Qué.:  Éditions Yvon Blais Inc., 1987.

 

Hilbery, Sir Malcolm.  Duty and Art in Advocacy.  London:  Stevens & Sons, 1946.

 

Jordan, Walter E.  Jury Selection.  Colorado Springs, Co.:  Shepard's/McGraw-Hill, 1980.

 

McEldowney, John F.  "`Stand By For The Crown':  an Historical Analysis," [1979] Crim. L.R. 272.

 

Mewett, Alan W.  "The Jury Stand‑By" (1988), 30 Crim. L.Q. 385.

 

Morgan, Donna C.  "Controlling Prosecutorial Powers ‑‑ Judicial Review, Abuse of Process and Section 7  of the Charter " (1986), 29 Crim. L.Q. 15.

 

Practice Note, [1988] 3 All E.R. 1086.

 

United Kingdom.  Morris Report, Cmnd 2627 (1965).

 

United Kingdom.  Parliament.  House of Commons.  Fraud Trials Committee.  Fraud Trials Committee Report (Roskill Committee). London, H.M.S.O., 1986.

 

Vennard, Julie and David Riley.  "The Use of Peremptory Challenge and Stand by of Jurors and their Relationship to Trial Outcome", [1988] Crim. L.R. 731.

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1989), 47 C.C.C. (3d) 250, 31 O.A.C. 357, 68 C.R. (3d) 50, 45 C.R.R. 193, allowing an appeal from acquittal by Kent Dist. Ct. J. sitting with jury (1987), 30 C.R.R. 75 (voir dire).  Appeal allowed (Gonthier, McLachlin and Iacobucci JJ. dissenting); s. 563(1) and (2) (now s. 634(1) and (2)) were inconsistent with s. 11( d )  of the Charter  and this violation was not justified under s. 1.

 

                   Timothy E. Breen and James C. Fleming, for the appellant.

 

                   Jeff Casey and Elizabeth Rennie, for the respondent.

 

                   Graham R. Garton, for the intervener.

 

//Cory J.//

 

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

 

                   Cory J. -- I have had the privilege of reading the reasons of my colleagues Justice Stevenson and Justice Gonthier.  Although I agree with the conclusion of Stevenson J., I reach the result in a somewhat different manner.  In my view the implementation of the impugned provisions would lead a reasonable person, fully apprised** of the extensive rights the Crown may exercise in the selection of a jury, to conclude that there was an apprehension of bias.

 

                   At the outset, I would agree that the Crown Attorney plays a very responsible and respected role in the criminal justice system and particularly in the conduct of criminal trials.  It is true that the Crown never wins or loses a case.  Yet Crown Attorneys are mortal.  They are subject to all the emotional and psychological pressures that are exerted by individuals and the community.  They may act for the best of motives.  For example they may be moved by sympathy for a helpless victim, or by contempt for the cruel and perverted acts of an accused; they may be influenced by the righteous sense of outrage of a community at the commission of a particularly cruel and vicious crime.  As a rule the conduct and competence of Crown Attorneys is exemplary.  They are models for the bar and the community.  Yet they, like all of us, are subject to human frailties and occasional lapses.

 

                   Crown attorneys have been known to make inflammatory addresses to juries.  See R. v. Grover, [1991] 3 S.C.R. 387, adopting the dissenting reasons in (1990), 56 C.C.C. (3d) 532 (Ont. C.A.).  They have been known to conduct unfair cross- examinations of parties and witnesses.  See R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.).  I do not make these observations in order to be critical of Crown Attorneys.  Rather they are made to emphasize the very human frailties that are common to all, no matter what the office held.

 

                   Apart from challenges for cause the provisions of the Criminal Code  provide the Crown with the ability to stand by 48 prospective jurors and to challenge four jurors peremptorily.  The accused in this case has but 12 peremptory challenges.  I do not suggest that the ideal of absolute equality is required by the Canadian Charter of Rights and Freedoms .  However a discrepancy of 4.25 to 1 in favour of the Crown seems to be so unbalanced that it gives an appearance of unfairness or bias against the accused.  The impugned provisions permit the Crown to obtain a jury that would at the very least appear to be favourable to its position rather than an unbiased jury.

 

                   It is suggested that the Crown Attorney, as an officer of the Court would never act unfairly in the selection of a jury.  Yet the most exemplary Crown might be so overwhelmed by community pressure that just such a step might be taken.  In R. v. Pizzacalla (1991), 5 O.R. (3d) 783, Morden A.C.J.O, Lacourcière and Catzman JJ.A., it was conceded that as a result of the use made by the Crown Attorney of the stand by provisions in the selection of a jury an apprehension of bias was created.  I have cited this case not to illustrate or emphasize a legal principle but rather for what it demonstrates.  Namely, that those acting for the Crown do, on occasion demonstrate human frailties and that the impugned section is, on occasion, utilized for the improper purpose of obtaining a jury that appears to be favourable to the Crown.

 

                   A petition is frequently made that we not be lead into temptation.  The impugned provision of the Criminal Code  provides the tempting means to obtain a jury that appears to be favourable to the Crown.  The section is so heavily weighed in favour of the Crown that viewed objectively it must give that legal fictional paragon, the reasonable person, fully apprised of the manner in which a jury may be selected, an apprehension of bias.  This must be so since the jury, as a result of the selection process, would appear to be favourable to the Crown.  It seems to me that so long as this provision exists it may be used and on occasion will be used to select a jury that appears to be favourable to the Crown.

 

                   It may well be correct that it would be impossible to prove that a jury selected after the Crown had exercised all its stand bys and peremptory challenges was in fact biased.  Nonetheless the overwhelming numerical superiority of choice granted to the Crown creates a pervasive air of unfairness in the jury selection procedure.  The jury in the ultimate decision maker.  The fate of the accused is in its hands.  The jury should not as a result of the manner of its selection appear to favour the Crown over the accused.  Fairness should be the guiding principle of justice and the hallmark of criminal trials.  Yet so long as the impugned provision of the Code remains, providing the Crown with the ability to select a jury that appears to be favourable to it, the whole trial process will be tainted with the appearance of obvious and overwhelming unfairness.  Members of the community will be left in doubt as to the merits of a process which permits the Crown to have more than four times as many choices as the accused in the selection of the jury.

 

                   Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively.  The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control.  Rather the offending statutory provision should be removed.

 

                   It follows that s. 563(2) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 634(2) ) offends s. 11( d )  of the Charter .  Since the not unlikely effect of the provision is to ensure a jury that at the very least appears to be favourable to the Crown the section could not conceivably be construed as a reasonable limit that can be justified in a free and democratic society.  The section is therefore invalid.

 

                   The declaration of invalidity resolves all future problems.  However in order to avoid a hiatus the declaration should be suspended for a period of six months.  This will provide an opportunity to Parliament to remedy the situation if it considers it appropriate to do so.

 

                   The suspended declaration does not leave the defence without a remedy during the interim.  The accused may always attempt to demonstrate that there has been an abuse of the stand by provisions by the prosecution.  This was the course successfully followed in R. v. Pizzacalla, supra.  I would add that neither the fact that relief may be obtained in this way, nor that many juries have in the past been selected without the exercise of any prosecutional abuse, can be accepted as a basis for defeating the constitutional challenge to the section.  The fact remains that the impugned section legislates a means of selecting a jury that could appear to be favourable to the Crown.  It can never be forgotten that it is the jury that will determine guilt or innocence.  To permit by legislation the selection of a jury apparently favourable to the Crown offends not only the Charter  but a sense of basic fairness.

 

Disposition

 

                   I would declare s. 563(2)  of the Criminal Code  (now s. 634(2)) invalid but suspend the declaration for a period of six months.  The appeal should be allowed, the order of the Court of Appeal set aside and the acquittal of the appellant restored.

 

                   The constitutional questions should be answered as follows:

 

1.Are ss. 633 and 634 of the Criminal Code , R.S.C., 1985, c. C-46  [formerly R.S.C. 1970, c. C-34, ss. 562 and 563], inconsistent with ss. 7 , 11( d )  or 15  of the Canadian Charter of Rights and Freedoms ?

 

A.Sections 634(1) and (2) (formerly R.S.C. 1970, c. C-34, s. 563(1) and (2)) are inconsistent with s. 11(d) in so far as they provide the Crown with a combination of peremptory challenges and stand bys that is more than four times in excess of the number of peremptory challenges permitted to an accused.  It is unnecessary to consider whether this provision violates s. 7.  The allegation of a violation of s. 15 was withdrawn.  Sections 633 and 634(3) (formerly ss. 562 and 563(3)) were not challenged.

 

2.If the answer to question 1 is affirmative, are ss. 633 and/or 634 [formerly R.S.C. 1970, c. C-34, ss. 562 and/or 563] justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

A. The violation is not justified under s. 1.

 

//Gonthier J.//

 

                   The reasons of Gonthier, McLachlin and Iacobucci JJ. were delivered by

 

                   Gonthier J. (dissenting) -- The appellant raises important questions about a central feature of our criminal law system, the jury, and in particular about the mode of selection of the jury contained in the Criminal Code, R.S.C. 1970, c. C-34.  He submits that the disparity between the means of challenge allowed to the accused and the Crown in the jury selection process violates the constitutional guarantee of an impartial tribunal contained in s. 11( d )  of the Canadian Charter of Rights and Freedoms .  I have had the benefit of reading the reasons of Justice Stevenson and, while I respectfully find myself in disagreement with them, I adopt his statement of the facts and judgments of the lower courts.

 

                   For ease of reference, I reproduce the relevant legislation:

 

Canadian Charter of Rights and Freedoms 

 

                   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.

 

                   10.  Everyone has the right on arrest or detention

 

                                                                    ...

 

(b)  to retain and instruct counsel without delay and to be informed of that right; ...

 

                   11.  Any person charged with an offence has the right

 

                                                                    ...

 

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

Criminal Code, R.S.C. 1970, c. C-34

 

                   562. (1)  An accused who is charged with high treason or first degree murder is entitled to challenge twenty jurors peremptorily.

 

                   (2)  An accused who is charged with an offence, not being high treason or first degree murder, for which he may be sentenced to imprisonment for more than five years is entitled to challenge twelve jurors peremptorily.

 

                   (3)  An accused who is charged with an offence that is not referred to in subsection (1) or (2) is entitled to challenge four jurors peremptorily.

 

                   563. (1)  The prosecutor is entitled to challenge four jurors peremptorily, and may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment.

 

                   (2)  Notwithstanding subsection (1), the prosecutor may not direct more than forty-eight jurors to stand by unless the presiding judge for special cause to be shown, so orders.

 

                   (3)  The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.

 

                   567. (1)  A prosecutor or an accused is entitled to any number of challenges on the ground that

 

(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,

 

(b) a juror is not indifferent between the Queen and the accused,

 

(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,

 

(d) a juror is an alien,

 

(e) a juror is physically unable to perform properly the duties of a  juror, or

 

(f) a juror does not speak the official language of Canada that is the language of the accused ....

 

                   (2)  No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

 

                   570. (1)  Where, as a result of challenges and directions to stand by, a full jury has not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and they shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them or shows cause why they should not be sworn.

 

                   (2)  Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor may require the names of those jurors to be put into and drawn from the box in accordance with section 560, and those jurors shall be challenged, ordered to stand by or sworn, as the case may be, before the names of the jurors who were originally ordered to stand by are called again.

 

                   The constitutional questions as they were framed by former Chief Justice Dickson on June 7, 1989, put in issue the constitutionality of ss. 562  and 563  of the Criminal Code  (now R.S.C., 1985, c. C-46, ss. 633  and 634 ) with respect to ss. 7 , 11( d )  and 15  of the Charter .  The appellant concentrated his argument on s. 563(1) and (2) of the Code, and did not address the validity of ss. 562 and 563(3).  He did not make any submissions as to s. 15  of the Charter  either.  The sole issue before us remains therefore the consistency of s. 563(1)  and (2)  of the Criminal Code  with ss. 7  and 11( d )  of the Charter .  In their factums and in argument, the parties did not make any specific arguments under s. 7  of the Charter , relying instead on the arguments they had made under s. 11(d).

 

                   I agree with the parties that, as regards independence and impartiality of the tribunal in criminal cases, ss. 7  and 11( d )  of the Charter  are congruent.  Section 11( d )  of the Charter  merely enunciates a particular aspect of the general protection against deprivations of the right to life, liberty and security of the person found in s. 7  of the Charter , as had already suggested Lamer J. (as he then was) in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.  Arguments made under s. 11( d )  of the Charter  apply with equal force to s. 7.  As this case was argued under s. 11( d )  of the Charter , I will concentrate on this section in my reasons, for the sake of convenience.

 

I --The Constitutionality of s. 563 of the Criminal Code With Respect to s. 11( d )  of the Charter 

 

The History of the Jury Selection Process of the Criminal Code 

 

                   Stevenson J. has thoroughly explained in his reasons the present system of jury selection and its historical origins.  I will only make two brief additional remarks.  First of all, the stand by as it evolved in English law was indeed a deferred challenge for cause.  The 1305 statute (An Ordinance for Inquests, 33 Ed. 1, c. 4) that abolished peremptory challenges for the Crown enacted that the Crown shall only challenge for cause.  Stand bys were created through what established itself as the current interpretation of the statute:  the Crown can only challenge for cause, but it need not show cause before the entire jury panel has been exhausted and a complete jury has not been sworn.  The Canadian stand by operates slightly otherwise, since the Crown still can exercise peremptory challenges under the Criminal Code .  The Code, in s. 570(1), acknowledges this by permitting peremptory challenges (even by the accused) to be exercised against a stood by juror.  The Canadian stand by could therefore be better qualified as a deferred consideration of the prospective juror.

 

                   Furthermore, I wish to stress that Parliament, in enacting An Act to amend the Criminal Code (respecting jurors), S.C. 1917, c. 13, did not eliminate stand bys.  A maximum of 48 was imposed on the number of stand bys that could be directed by the Crown without leave of the Court, but Parliament did not see fit to abolish stand bys altogether.  Some significance must be attached to this, since one of the main reasons why a maximum number was enacted was the fear of abuses by the Crown, even though no record of such abuse was put forward during the House debates.  To prevent possible abuses, Parliament limited the number of Crown stand bys and introduced control by the Court of any additional requests, but it certainly saw a beneficial use to them that surpassed the perceived risk for abuse, since they were kept in the Criminal Code .

 

The Relationship Between Peremptory Challenges and Stand Bys

 

                   As a preliminary matter, I have one comment on the central assumption underpinning the appellant's argument:  that Crown stand bys are often in effect equivalent to peremptory challenges, since the jury panels are in most jurisdictions so large that they are never exhausted and the need to recall stood by jurors is almost never felt.  Yet the various provincial acts either make the size of jury panels discretionary (see for instance Juries Act, R.S.O. 1980, c. 226, s. 12; Jury Act, S.A. 1982, c. J-2.1, s. 7; Jury Act, R.S.B.C. 1979, c. 210, s. 9; Jury Act, R.S.P.E.I. 1988, c. J-5, s. 11; The Jury Act, R.S.M. 1987, c. J30, s. 17; Jury Act, S.N.B. 1980, c. J‑3.1, s. 13 and The Jury Act 1981, S.S. 1980-81, c. J-4.1, s. 6) or leave some discretion to vary the prescribed number (see for instance Jurors Act, R.S.Q., c. J-2, s. 15; The Jury Act, S.N. 1980, c. 41, s. 17, or Juries Act, R.S.N.S. 1989, c. 242, s. 6).  The Court cannot assess the size of such panels from the statutes themselves, and it certainly may not be assumed to have judicial notice of the size of panels throughout the judicial districts in Canada.  The assertions of the appellant should be supported by at least some evidence.  In the case at bar, none of the parties has sought to adduce evidence as to the size of jury panels in Canada and the frequency of challenges and stand bys.  When the parties present arguments based on the Charter , particularly on issues such as impartiality and independence, a proper factual basis, supported by evidence, is essential.  As this Court wrote in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p. 361:

 

                   Charter decisions should not and must not be made in a factual vacuum.  To attempt to do so would trivialize the Charter  and inevitably result in ill-considered opinions.  The presentation of facts is not ... a mere technicality; rather, it is essential to a proper consideration of Charter  issues.

 

This Court insisted on the need for facts again in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086.  It is to the advantage of the parties to give this Court the means to reach a decision on the issues.  Fortunately, these reasons do not depend on whether Crown peremptory challenges and stand bys are distinguishable or not in practice, and hence it will be assumed for the sake of argument that they are not.

 

The Test for Impartiality Under the Charter 

 

                   In an inquiry under the Charter , the appropriate test for impartiality was set out by this Court in R. v. Lippé, [1991] 2 S.C.R. 114, where the Court adopted the test first enunciated by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, and reaffirmed in Valente v. The Queen, [1985] 2 S.C.R. 673.  This test states that "the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information" (by de Grandpré J., at p. 394).  De Grandpré J. added in the next paragraph, at p. 395, that "[t]he grounds for this apprehension must, however, be substantial ...."

 

                   Lippé, supra, also confirmed at p. 140 that "[j]ust as the requirement of judicial independence has both an individual and institutional aspect ... so too must the requirement of judicial impartiality".  The applicable test for institutional impartiality was outlined by the Chief Justice in the following terms, at p. 144:

 

                   Step One:  Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?

 

                   Step Two:  If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis.  [Emphasis in the original.]

 

The appellant claims that s. 563 of the Code violates the Charter  guarantees of institutional impartiality.  In effect, he asserts that a well-informed observer would find that Crown peremptory challenges and stand bys give rise to a reasonable apprehension of bias in a substantial number of cases.  This standard requires more than just a perception of risk:  there must be, in the normal operation of s. 563 of the Code, as it is applied in fact, a serious fear that partial juries will result too often to be explained solely by factors pertaining to each individual situation.

 

                   My aim in placing such emphasis on the meaning of institutional partiality is not to render it nugatory by imposing an insuperable burden on the applicant for Charter  review.  Indeed in Lippé, supra, the mere fact that municipal court judges were also practising lawyers would have been a sufficient basis for finding a violation of the guarantees of institutional impartiality but for safeguards provided by the legislation.  An allegation of institutional partiality remains however a serious one:  in its generality, it implies that the legal framework surrounding the institution in question is itself flawed, irrespective of the particular circumstances of the various cases.

 

                   In the case at bar, it is not sufficient, for a determination under s. 11( d )  of the Charter , simply to take notice of the disparity between the Crown and the accused in the jury selection process and then to conclude that a reasonable apprehension of bias arises.  The right minded observer described in the above paragraph must put his or her mind to the question and acquire some information to enlighten his or her opinion.  This observer knows better than the person on the street.  He or she reads more than just the headlines.  In making up his or her mind about the jury selection process, he or she must be expected to have sought knowledge and to have thought about the formation of jury panels, about the roles the parties play in the jury selection process and about the relationship between the formation of the jury and the trial as a whole.

 

The Formation of Jury Panels

 

                   Jury trials are a central element of Anglo-American criminal law.  Sometimes lauded, sometimes vilified, trial by jury has withstood the test of time and has acquired such an importance that it has been entrenched in our Constitution through s. 11( f )  of the Charter .  Juries give a human side to criminal trials.  The many purposes served by jury trials have been canvassed by the Law Reform Commission of Canada in its 1980 Working Paper, The Jury in Criminal Trials, and they have been touched upon by this Court in R. v. Sherratt, [1991] 1 S.C.R. 509.

 

                   In Sherratt, supra, this Court has also elaborated on some of the fundamental characteristics a jury must possess to exercise its duty properly, that is impartiality and representativeness.  On the relationship between them, Justice L'Heureux‑Dubé wrote at pp. 525-26 of her reasons for judgment:

 

Provincial legislation guarantees representativeness, at least in the initial array.  The random selection process, coupled with the sources from which this selection is made, ensures the representativeness of Canadian criminal juries....  Thus, little if any objection can be made regarding this crucial characteristic of juries.

 

                                                                    ...

 

                   However, the "in-court" selection procedure, set out in the Criminal Code , can impact on the representativeness of the jury in some situations.  The impartiality of the jury is controlled in the main through the Criminal Code  procedure.

 

                   It could be said that random selection, which favours representativeness, provides as well a certain guarantee that the jury will also be impartial, but this is by no means true in all cases.  Randomness is not a panacea.  Indeed, in order to bolster the impartiality of the jury, the Criminal Code  offers to the parties various means of challenging prospective jurors, whether collectively or individually, at ss. 558 (now s. 629), 562 (now s. 633), 563 (now s. 634) and 567 (now s. 638) of the Code.  In Sherratt, supra, the majority of this Court has recognized that these challenges contribute to the impartiality of the jury and sometimes even improve its representativeness.

 

                   A further quality of a proper jury that has not been discussed in Sherratt, supra, is competence.  Jurors should not only be representative and impartial, they should also be able to understand the trial, their role in the trial, the evidence that is presented, the principles they have to apply, among other things.  This requirement of competence is not mentioned in relevant legislation, aside from general requirements of mental health and linguistic capability, but it is implicit.  Most trials require the same competence as is involved in the daily pursuit of one's affairs, and the ability to speak and understand one of the official languages will suffice.  Some trials are more complex and complicated, however, especially in the area of economic crimes, to name only one, and then a tampering with randomness may be appropriate to achieve a minimal ability to understand the evidence and issues.

 

                   The well-informed observer certainly knows that a jury should be impartial, representative and competent.  He or she will also know that the random selection process that leads to the formation of a panel of prospective jurors naturally fosters these three qualities, but that it does not in and of itself guarantee them.  Procedures exist through which parties are granted a limited possibility of affecting jury selection to further any of these characteristics.  Of these procedures, challenges to the jury panel and challenges for cause are not at issue here.

 

                   The appellant raises doubts about peremptory challenges and Crown stand bys only.  The observer would accordingly inquire as to whether any apparent justification for the disparity between the accused and the Crown can be found in the rationales behind these recourses, and whether there is any link, or appearance of link, between the selection process and the impartiality of the jury.

 

The Rationales for Peremptory Challenges and Stand Bys

 

                   The well-informed observer will know about the role of the accused and the Crown in the jury selection process, and he or she can draw inferences about the rationales for their respective recourses therefrom.

 

                   The Role of the Accused

 

                   The accused has a fairly clear and circumscribed role in the trial and in the jury selection process.  Nothing more is expected of him or her than trying to avoid conviction and punishment by asserting his or her rights according to law.

 

                   The accused has no right to a jury of his or her choice, however, as was recognized by the majority of this Court in Sherratt, supra.  As long as the jury selection process produces an impartial jury, the accused has no claim to any greater influence on the jury than is given him or her by this process.  He or she cannot positively choose the jury, but the law allows him or her to exclude prospective jurors from it.

 

                   The Criminal Code  gives the accused a variable number of peremptory challenges, depending on the seriousness of the offence.  These peremptory challenges allow the accused to exclude prospective jurors from the jury.  The main rationale for these had already been outlined by Blackstone, in his Commentaries on the Laws of England, Lewis ed., vol. 4, at p. 353 and p. 1738 (of Lewis' Edition):

 

[The peremptory challenge] is grounded on two reasons.  i.  As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.  2.  Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

 

                   These are still today the main reasons offered to justify peremptory challenges by the accused.  Babcock, in "Voir Dire:  Preserving `Its Wonderful Power'" (1975), 27 Stan. L. Rev. 545, names them respectively the "didactic" and "shield" functions of the peremptory challenge at pp. 552-55.  Professor Babcock develops the didactic function of the challenge further than Blackstone:  not only does it allow the accused to summarily dismiss prospective jurors without specific motives, but it also "teaches the litigant, and through him the community, that the jury is a good and proper mode for deciding matters and that its decision should be followed because in a real sense the jury belongs to the litigant..." (at p. 552).  The "shield" function remains accessory.  The Law Reform Commission of Canada, in its 1982 report, The Jury, also explained peremptory challenges for the accused along the same lines at p. 46.

 

                   The Role of the Crown

 

                   The role of the Crown in the jury selection process, as in the trial as a whole, is not only different, but also asymmetrical.

 

In General

 

                   In the criminal process, the Crown Attorney is not expected to seek conviction above everything else, just like the accused attempts to avoid conviction.  He or she has special duties in his or her quality as a public officer.  Additional duties are superadded to his or her duties as representative of the prosecution side, duties that will often lead to conflicts with the course of action that another lawyer, acting for an individual party, would take, and that will therefore impose limits on prosecutorial conduct.

 

                   As Bull put it, in his address "The Career Prosecutor in Canada" (1962), 53 J. Crim. L.C. & P.S. 89, at p. 95:

 

                   He, then, is the attorney for the people or the State against the accused in a proceeding in which the State dissociates itself from the act of its own member, denunciating his conduct and exhibiting an antagonism in its will against the will of the wrong-doer.

 

                                                                    ...

 

                   The Crown Attorney however is something more.  The Crown embraces the whole of the state including the wrong-doer himself.  On the one hand, the monarch ... guarantees that the subject shall enjoy peace -- the Queen's Peace.  On the other hand the monarch has repeatedly guaranteed to every subject ... the right of fair trial and due process of law.

 

The inherent richness and complexity of the prosecutor's role was also brought to the fore in R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276, where the Ontario Court of Appeal held at p. 289:

 

By reason of the nature of our adversary [sic] system of trial, a Crown prosecutor is an advocate; he is entitled to discharge his duties with industry, skill and vigour.  Indeed, the public is entitled to expect excellence in a Crown prosecutor just as an accused person expects excellence in his counsel.  But a Crown prosecutor is more than an advocate, he is a public officer engaged in the administration of justice ....

 

                   With respect to the nature of the duties of Crown prosecutors, the Ontario Court of Appeal in the above case referred to Boucher v. The Queen, [1955] S.C.R. 16, the seminal pronouncement of this Court on the subject.  There Rand J. wrote this oft‑quoted passage at pp. 23-24:

 

                   It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.  Counsel have a duty to see that all available legal proof of the facts is presented:  it should be done firmly and pressed to its legitimate strength but it must also be done fairly.  The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.  It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

 

                   (See also R. v. Stinchcombe, [1991] 3 S.C.R. 326.)

 

Taschereau J. (as he then was) also dealt with the general issue of prosecutorial responsibilities in these terms at p. 21:

 

                   [translation]  The position of Crown counsel is not that of counsel in a civil matter.  His functions are quasi-judicial.  He must not so much try to obtain a conviction as assist the judge and jury so that justice will be fully done.  Moderation and impartiality must always characterize his conduct in court.  He will have honestly carried out his duty and will be beyond reproach if, putting aside any appeal to the passions, in a dignified manner appropriate to his role, he presents the evidence to the jury without going beyond what it has revealed.

 

These words remain every bit as pertinent today as they were then and as they had been before.  Since Crown prosecutors play a central role in the proper functioning of our judicial system, and since they are vested with much discretion and subject to few controls, their duties can never be too often reaffirmed.  The single‑minded pursuit of convictions cannot be compatible with the responsibilities of Crown prosecutors.  They must present the case for the prosecution to the best of their ability, always acting in furtherance of the duties entrusted to their office.  The examination of the role of Crown Attorneys in criminal trials cannot be better concluded than with this passage from Hilbery, Duty and Art in Advocacy, at p. 13:

 

[A prosecutor's duty is] to see to it that every material point is made which supports the prosecution case or destroys the case put forward for the defence.  But as prosecuting Counsel he should not regard his task as one of winning the case.  He is an officer of justice.  He must present the case against the prisoner relentlessly, but with scrupulous fairness.  He is not to make merely forensic points or debating scores.  There is, perhaps, no occasion when the Barrister is called upon to exhibit a nicer sense of his responsibilities than when prosecuting.

 

During the Jury Selection Process

 

                   In keeping with this quasi-judicial role, the Crown prosecutor in the jury selection process has a duty to ensure that the jury presents the three characteristics outlined above, that is impartiality, representativeness and competence.  Let it be made clear, however, that these qualities, especially impartiality, must not be sought in light of securing a conviction, but rather in light of selecting the best jury to try the case.  Indeed the Crown Attorney should use the means at his or her disposal to exclude prospective jurors that could be biased in favour of the prosecution, even if the defence is not aware of this fact.  The "didactic" function that was attached to the peremptory challenge for the accused is absent in the case of the Crown:  it does not have to develop any sense of adherence to or acceptance of the trial process through the selection of the jury, and accordingly neither does it have any interest in excluding candidates on the basis of unsupported perceptions.  The Crown Attorney's only justification for taking part in the jury selection process stems from his or her responsibilities as a public officer.

 

                   The Crown nevertheless has an important function to fulfil during jury selection.  This function can better be understood by comparison with other jurisdictions.

 

                   In the United States, the trial judge generally retains a wide discretion to excuse prospective jurors at the outset of the trial on grounds deemed by him or her sufficient (Texas & Pacific Railway Co. v. Hill, 237 U.S. 208 (1915); in federal procedure, this principle is embodied in 28 U.S.C. § 1866(c)(2)).  Afterwards, jury selection involves extensive questioning during a voir dire where jurors can be asked various questions, in order to enable the parties to gain sufficient information for their challenges for cause.  Furthermore, the range of causes for which a juror can be excluded is virtually limitless, since U.S. courts have repeatedly held that States cannot limit an accused's constitutional right to a fair trial by purporting to enact a closed list of causes for challenge (the evolution of American law on this issue is discussed in Jordan, Jury Selection, at pp. 49-55.  A large measure of flexibility can therefore be found both in the discretion given to the trial judge and in the unlimited number of grounds of challenge for cause.  This flexibility allows for special cases of juror inaptitude to be dealt with as they arise in particular cases, hence enabling the selection process to produce a jury that conforms to constitutional guarantees.

 

                   In the United Kingdom, the Juries Act 1974, 1974, c. 23, gives a designated officer of the court a general power to excuse (at s. 9) or to defer attendance (at s. 9(2)), when jurors put forward a good reason to do so.  At trial, the court itself has a power to excuse for good reason prospective jurors from their jury duties (s. 9(4) of the Juries Act 1974), and it also retains a common law power to refuse to allow to be sworn prospective jurors who are incapable of duly attending to the evidence (Mansell v. The Queen (1857), 8 El. & Bl. 54, 120 E.R. 20).  At common law, the grounds for challenge for cause are limited, not unlike in Canada.  In the United Kingdom, the flexibility to deal with individual jurors whose qualifications may be problematic comes from these broad powers given to the court officer in charge of constituting the panels and to the trial court.  A further element of flexibility comes from Crown stand bys, which in English law have been severely curtailed by guidelines from the Attorney General (published at "Practice Note", [1988] 3 All E.R. 1086).  These guidelines recognize at paragraph 4 that, given the discretionary powers outlined above, stand bys will be necessary only in rare cases.  Despite the differences in Canadian law that will be outlined below, it is of the utmost interest to note the underlying principles to Crown stand bys, as stated in paragraph I:

 

                   I.  Although the law has long recognised the right of the Crown to exclude a member of a jury panel from sitting as a juror by the exercise in open court of the right to request a stand by or, if necessary, by challenge for cause, it has been customary for those instructed to prosecute on behalf of the Crown to assert that right only sparingly and in exceptional circumstances.  It is generally accepted that the prosecution should not use its right in order to influence the overall composition of a jury or with a view to tactical advantage.

 

                   In Canada, constitutional considerations intervene.  As this Court has held in R. v. Barrow, [1987] 2 S.C.R. 694, at pp. 712-13, "the provincial power for the administration of justice stops and the federal power over criminal procedure begins when the judge's activity is not concerned with the assembly of an array of eligible citizens, but with the precautions necessary to ensure an impartial jury".  The Court wrote also at p. 713 that "its [the province's] authority over the jury pool is limited to eligibility and personal matters unconnected with the criminal case to be tried".  The element of flexibility that was found in American and English law must therefore be found in the provisions of the Criminal Code .

 

                   In the Code, not only is there a list of grounds for challenge for cause in s. 567(1)  of the Criminal Code , but this list is closed by s. 567(2) of the Code.  The scope for challenges for cause is therefore limited, unlike in American law.  Furthermore, pre‑screening of prospective jurors through direct questioning from the judge is confined to obvious cases where consent of counsel can be presumed, following the strand of case law culminating in Sherratt, supra.  Canadian law does not give the trial judges powers to excuse of the same breadth as in the United States or the United Kingdom.  It does not put this necessary element of flexibility, in dealing with particular prospective jurors in particular cases, in the hands of the court or of court officers.

 

                   Whereas the United States and the United Kingdom rely on the trial judge's discretion or extensive challenge for cause procedures, the Canadian solution to this problem is to allow the Crown, through means put at its disposal, to exclude a prospective juror from the jury.  Therein lies the role of the Crown in the Canadian jury selection process.  Through this role, in conformity with its general duties, the Crown addresses the need to be able to exclude prospective jurors who would not fall under any of the statutory grounds of exclusion but whose presence on the jury would nevertheless impair its impartiality, its representativeness or its competence.  It provides the element of flexibility.

 

                   The means provided by the Code for the exercise of Crown duties during jury selection is s. 563, where the prosecutor receives powers of peremptory challenge and stand by.  As mentioned previously, it is significant that Parliament, when it  last addressed the issue of stand bys in 1917, did not choose to abolish them but rather to establish a uniform limit in numbers beyond which judicial authorization is required.  Crown stand bys (the same reasoning can be applied to peremptory challenges) had then and still have a function and an importance of their own in the jury selection process.

 

                   The relatively large number of challenges and stand bys given to the Crown is consistent with the need for flexibility in the process.  It is not incumbent upon the Court to inquire into the adequacy of the actual numbers contained in the Code.

 

                   They are the result of historical compromises.  The 48 stand bys, for instance, represent an average of the number of persons on jury panels in the nine provinces at the time of the enactment of the Act to amend the Criminal Code (respecting jurors).  Whether the figure of 48 is properly determined and whether it is still adequate today are questions better left for Parliament to decide.  Irrespective of the precise number, though, this relatively high figure, and consequently the possibility of a large number of Crown interventions in jury selection, enables the Crown fully to play its role when the situation so requires.  The Crown will not exercise all of its four challenges and 48 stand bys merely because it holds them.  In fact, a proper exercise of its role would call for restraint.  Since the Crown plays this important quasi-judicial role and infuses some flexibility into the jury selection process, however, it is only normal that the means of exclusion at its disposal also allow some room for manoeuvre.  Moreover, the limit of 48 itself is flexible, since upon judicial authorization it can be increased.

 

                   As a result, in my view, the well-informed observer, who knows that the accused and the Crown play different roles in the jury selection process, would not hold a reasonable apprehension of bias from the mere fact that a disparity in the number of recourses against jurors exists in the Criminal Code .  He or she would see in this disparity a reflection of the asymmetry between the roles of the accused, which is limited, going almost to self-preservation in nature, and of the Crown Attorney, who must conscientiously discharge the quasi-judicial duties incumbent on his or her public office and who accordingly requires some flexibility in the means available to him or her.  He or she might well consider that this disparity contributes to a better jury by fostering its impartiality, representativeness and competence.  This line of reasoning has been followed by the Ontario Court of Appeal in R. v. Stoddart (1987), 37 C.C.C. (3d) 351, by the Nova Scotia Court of Appeal in R. v. Johnstone (1986), 26 C.C.C. (3d) 401, and by the Quebec Court of Appeal in Mansbridge v. R. (October 1, 1991), Quebec 200‑10‑000149‑851 (C.A.), JE 91‑1653.

 

The Link Between the Selection of the Jury and its Impartiality

 

                   Furthermore, the observer would fail in my view to see any clear link between the jury selection process and the impartiality of the empanelled jury.

 

                   The appellant's central tenet is that the verdict of the jury can be influenced at the stage of selection.   The parties, by exerting an influence on who is empanelled on the jury, can fashion a jury to their liking.  In this respect, the greater possibility for influence given to the Crown would allow it to model the jury more than could the accused.  However, notwithstanding whether they are effective or not, such systematic attempts by the Crown at hand-picking the jury to obtain a conviction would be contrary to its role in the jury selection process and an abuse of its powers.  Even for the accused, the kind of deliberate planning involved with such overt jury shaping must be contrasted with the attitude envisioned by the "didactic" rationale mentioned above, where the accused voices his or her sudden perceptions and prejudices.

 

                   Factual Basis

 

                   Many studies have been conducted on the relationship between peremptory challenges and jury verdicts in the United States, but their relevance is very limited since the American jury selection procedure generally comprises an extensive voir dire where prospective jurors are questioned in order to provide parties with sufficient information for the selection process.  Attempts to shape the verdict during selection rest on a sounder scientific basis in the United States, where parties will know after the voir dire how jurors think about certain issues, how they think about the crime with which the accused is charged, among others.  Even then, American studies remain fairly divided on the existence of any link between jury selection and verdicts.

 

                   In Canada, the information available to the parties during the selection process is very limited:  aside from apparent features such as gender, race or age, parties are only provided with the names and occupations of prospective jurors.  It is not apparent that parties can influence the verdict by challenging or standing by prospective jurors, given this dearth of information.

 

                   Both parties have cited an English study, which could be taken with caution as the most applicable empirical work.  In this study, titled "The Use of Peremptory Challenge and Stand by of Jurors and their Relationship to Trial Outcome", [1988]  Crim. L.R. 731, authors Vennard and Riley tried to determine if the use by defendants of their peremptory challenges could increase their chances of acquittal.  A quotation from their conclusions at p. 738 sheds some light on the lack of factual foundation for the appellant's claim:

 

... the findings do not lend support to the criticism that peremptory challenge gives an unfair advantage to the defence and that juries subjected to challenge are predisposed to acquit.  Bearing in mind the uncertainty of peremptory challenge as a means of influencing the composition of the jury to achieve a favourable outcome, the lack of association is, perhaps, to be expected.  First, it must be remembered that the pool of potential jurors for each defendant is limited to those members of the public who comprise the jury panel on that day.  In addition, any attempt to affect the outcome through challenge relies on subjective judgments about the relationship between a potential juror's age, sex and appearance and his or her propensity to convict or acquit.

 

                   Of course, I do not consider that jurors come to their task with a completely blank slate, devoid of any preconceptions and prejudices.  Each juror has his or her own particular mind set, and it forms part of his or her representative quality.  It must be emphasized, however, that parties who try to fashion the jury through the selection process play the sorcerer's apprentice.  The appellant cannot claim that these attempts violate his rights under the Charter .

 

                   The well-informed observer should not be expected to have read the most recent empirical studies on jury selection.  Yet he or she will certainly see that there is little practical relation between the excluded jurors and the impartiality of the jury actually selected, and that Crown challenges and stand bys serve a legitimate purpose and remain but one part of a criminal trial.

 

                   The Excluded Jurors and the Jury Itself

 

                   This Court in Sherratt, supra, recognized that tampering with the randomness of the jury roll at the selection stage, through challenges and stand bys, was permissible and did not in and of itself give rise to a reasonable apprehension of bias, as was mentioned above.

 

                   During the selection process, both parties have at their disposal means to exclude jurors summarily.  There is no indication, and the appellant does not contend, that the number of peremptory challenges given to the accused is insufficient as such.  The appellant complains only that the Crown has stand bys in great numbers in addition to its peremptory challenges.  Since in addition to the peremptory challenges the accused is unrestricted in challenging for cause, and since the stand by procedure is an exclusionary mechanism, even its abuse, while it might result in some qualified and impartial persons' being excluded, does not lead to the choice of biased jurors.  The 12 jurors finally selected will not appear to be partial to the Crown.  It cannot be inferred that those challenged or stood by by the Crown were necessarily favourable to the accused (even if it were so, the accused is not entitled to a favourable jury, as was noted before).  Reciprocally, it cannot be concluded that a juror is biased in favour of the Crown simply because the Crown has not exercised a challenge or a stand by against him or her.

 

                   In the end, the 12 members of the jury, who have withstood the selection process, are the ones who matter in examining whether a reasonable apprehension of bias arises.  The accused as well as the Crown had the opportunity to exclude them somehow as they were called, if they had any doubt on their fitness to serve as jurors.  To the observer, this feature of the jury selection process not only does not give rise to an apprehension of bias, but rather increases the perception that the jury is impartial, since the accused and the Crown have had a chance to weed out the jury.

 

                   In R. v. Ross (1986), 53 C.R. (3d) 81 (Ont. H.C.), Potts J. adopted the same approach, and he made the following statement at pp. 86-87:

 

                   When one reviews the entire jury selection process, it becomes clear that the acts complained of as being unfair are at the end of a rather lengthy process designed to ensure randomness and independence and impartiality.  Can the Crown's ability to request that a potential juror stand aside be seen to impugn this entire process?  I respectfully submit that it cannot.  At best, the jury selection carried on in a courtroom by counsel is educated guesswork operating on a sample of strangers carefully chosen in a neutral fashion.  Does an individual, chosen at random, who has survived the scrutiny of the accused assume a pro-Crown bias merely because he is not asked by the Crown to stand aside?  Does a jury composed of such individuals become something less than "independent and impartial"?  Alternatively, does an individual who is initially asked to stand aside but later recalled assume a pro-accused bias merely because he had first been asked to stand aside?  I would respectfully submit that the individual biases of any potential juror are left unaffected by the Crown's request to stand aside or not.  Therefore, I find that the independence and impartiality of the jury as a whole as it is finally selected are not affected by the number of stand-asides which the Crown has or has elected to use.  Although when viewed in isolation the Criminal Code  provisions may appear to be unfair, I find that when the entire jury selection process is reviewed the advantage to the Crown, while present, is slight; it certainly does not constitute a rule which is so unfair that it results in an unfair trial of the accused.

 

I cannot but agree with these words, as did the Ontario Court of Appeal in R. v. Stoddart, supra.

 

                   Peremptory Challenges and Stand Bys Within the Criminal Trial

 

                   Moreover, the likelihood that the impugned disparity had an influence on the jury clashes squarely with other fundamental characteristics of criminal jury trials.

 

                   For one, the verdict of the jury must be unanimous.  According to Lord Devlin, Trial by Jury, at p. 48, this rule was established in 1367 and has remained unchanged since.  In our criminal law, the jury only exists as a collectivity, and not as a group of individuals.  Such a conception is borne out by empirical findings as well.  In their book Jury Trials, Baldwin and McConville conclude at pp. 104-105:

 

Having examined the relationship between the characteristics of juries and the verdicts they return, we can confidently state that no single social factor (nor, as far as we could detect, any group of factors operating in combination) produced any significant variation in the verdicts returned across the board.  This negative conclusion is, to a degree, a surprising one since common sense and a voluminous literature would have suggested the opposite.  The contradiction is, however, relatively easily explained.  The truth of the matter is that most juries ... were extremely mixed, and it is to be expected that the amalgam of personal and social attributes that make up a jury will produce verdicts which reflect that unique social mix rather than the broad social characteristics of the individuals concerned.

 

Any attempt to influence the verdict of the jury by hand-picking its members, unless it can be done on such a grand scale as to affect the whole jury, is bound to run against the unanimity requirement, and its efficacy may therefore be highly doubted by the observer.

 

                   Furthermore, the parties to a criminal trial both try to convince the jury to adopt their conclusions.  The criminal trial as a whole is an adversarial process, designed to lay before the jury all the evidence and all the arguments that are relevant to its decision.  If the verdict could be determined at the jury selection stage, the trial would serve little purpose.  Crown challenges and stand bys are part of a larger trial procedure conceived to allow the culpability of the accused to be debated, while remaining fair to the accused.  The burden of proof requirements, the evidentiary exclusions and the defences open to the accused all contribute to these objectives.  In arguing that a mere disparity in the jury selection process suffices to predetermine the verdict and to render the whole trial unfair, the appellant denies the very essence of the trial.

 

                   These considerations were behind one of the earliest pronouncements on the issue, found in R. v. Piraino (1982), 67 C.C.C. (2d) 28 (Ont. H.C.), at pp. 29-30:

 

                   The jury selection process is just one step in the trial.  The course of a trial is governed and affected by almost countless rules relating to procedure and the admissibility of evidence.  Many of those rules when isolated and looked at individually, would appear to favour either the Crown or the accused.  Indeed, the same rule may at one point favour the Crown and at another point favour the accused.  Others of those rules consistently favour either the Crown or the accused.  The requirements; that the Crown prove each element of a charge beyond a reasonable doubt before there can be a conviction; that the accused cannot be required to testify and that the Crown and the trial judge may not comment on the fact that the accused has not testified are examples of rules that favour the accused.

 

                   In my view, so far as the issue before me is concerned, the Canadian Charter of Rights and Freedoms  gives to every citizen the right to a fair trial.  It does not assure him the right that every rule that governs that trial, when examined individually, be fair to him.  It does, however, assure him that any individual rule that is so unfair that it will result in an unfair trial being had will be struck down.

 

The above reasoning has been echoed by the Ontario Court of Appeal in R. v. Stoddart, supra, by the Quebec Court of Appeal in R. v. Bolduc  (1986), 4 Q.A.C. 201, and by the Newfoundland Court of Appeal in R. v. Curtis (1989), 74 Nfld. & P.E.I.R. 227.  I would also adopt it.  One must beware, of course, of excusing violations of the Charter  in criminal procedure on the grounds that our system of criminal trial as a whole is fair.  As was said in Piraino, some rules may be so unfair that they will be struck down.

 

                   In the case at bar, however, the well-informed observer, knowing the qualities expected in a good jury (impartiality, representativeness and competence), understands the difference between the roles of the accused and the Crown in the jury selection process as well as the tenuous relationship of peremptory challenges and stand bys with the impartiality of the jury and the fairness of the trial as a whole.  Considering these factors, a disparity in the means afforded to the parties does not create in him or her an apprehension that the jury is systematically partial because of the operation of the provisions of the Criminal Code .

 

Institutional and Individual Impartiality

 

                   Fundamentally, the appellant's position is based on an apprehension of abuse or misuse by the Crown of its powers in a substantial number of cases, which would impinge upon the impartiality of the empanelled jury at the institutional level.  I have just outlined my reasons for finding that this submission must fail in the absence of any reasonable apprehension of bias in the eyes of a well-informed observer.  Throughout, I remained at the level of pure "apprehension", and I did not consider, apart from the question of whether an apprehension could arise on the face of the Criminal Code  provisions, whether there was any support, judicial, doctrinal or otherwise, for the appellant's alleged apprehension.

 

                   No evidence has been presented of an abusive Crown practice.  It is to be noted, as was mentioned above, that Parliament chose to limit and maintain Crown stand bys in 1917, and not to abolish them, amid the fears of abuse expressed by some members.  The British Parliament, when it enacted the Criminal Justice Act 1988 (U.K.), 1988, c. 33, which abolished the peremptory challenges that remained to the accused, also avoided to abolish Crown stand bys, on the grounds that they serve a valid purpose, as outlined in the Attorney General's guidelines, supra.  Furthermore, but for one trial court case, Canadian courts, in particular at the appellate level, have always upheld s. 563  of the Criminal Code .  None of them found any substance in allegations of institutional partiality.  Finally, at the doctrinal level, but for the slight editorial piece of Mewett, "The Jury Stand-By" (1988), 30 Crim. L.Q. 385, no Canadian authors of which I am aware have reviewed the issue since the Law Reform Commission of Canada issued its report, The Jury, supra, in 1982.

 

                   The Commission's brief remarks on peremptory challenges and stand bys, at p. 47 of its report, show that it did not consider that the Code provisions were unfair to the accused, although it suggested the abolition of stand bys, and their replacement by an increased number of peremptory challenges, on the basis that they were obsolete and anachronistic.  In the realm of independence and impartiality, however, the Charter  does not require perfection, as has been mentioned on several occasions by this Court (see Valente v. The Queen, supra, and the recent case of R. v. Lippé, supra; as for s. 563 of the Code, specifically, see R. v. Foote (1985), 65 N.B.R. 444 (C.A.)).  The constitutional validity of s. 563  of the Criminal Code  does not mean that it is exempt from criticism.  Many avenues for its reform and the reform of the jury selection process have been proposed.  I do not wish to comment on them.  Absent Charter violations, this Court has no mandate to engage in law reform.

 

                   The appellant's arguments amount to suggesting that jury trials conducted under the provisions of the Criminal Code  have in a substantial number of cases been unfair to the accused or at least given rise to an apprehension of unfairness.  Far be it from me to give in to the sheer weight of history, but trial by jury remains such a central and cherished feature of our criminal law that it would seem somewhat incongruous that many juries to date (or at least many of those selected after Crown challenges and stand bys were exercised) would be so fundamentally flawed.  It would be regrettable to invalidate s. 563 of the Code on the basis of such sweeping assertions, thereby also defeating the legitimate and useful purposes for which it has been enacted.

 

                   Should the possibility of abuse advanced by the appellant materialize in instant cases, where the Crown rather than fulfilling its duty would misuse or abuse its powers, these could be adequately dealt with on an individual basis.

 

                   In the United States, it is true, problems have arisen with the use of peremptory challenges by the prosecution to exclude blacks from the jury.  In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court of the United States has held that in these situations the accused has a recourse against the prosecution if discrimination is proven.  Canada has largely been spared these prosecutorial practices, but if they occur, the common law and the Charter offer sufficient protection to the accused (see Hébert, "Le contrôle judiciaire de certains pouvoirs de la couronne", in Droit pénal -- orientations nouvelles, and Morgan, "Controlling Prosecutorial Powers -- Judicial Review, Abuse of Process and Section 7  of the Charter " (1986), 29 Crim. L.Q. 15).  Although the right of the Crown to stand by jurors is not such as to give rise to a reasonable apprehension of partiality in a substantial number of cases, should a case occur in which the use of stand bys by the Crown is such as to create a reasonable apprehension of partiality, a court must be mindful that the purpose of the Charter  is the unremitting protection of individual rights and liberties -- Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155.  It will be up to the trial judge to ensure that the prosecution is not abusing its power of stand bys, and to allay any apprehension as to impartiality.  This was the approach apparently taken by the Ontario Court of Appeal in R. v. Pizzacalla (1991), 5 O.R. (3d) 783.  In that case, counsel for the Crown used 20 stand bys for the admitted purpose of empanelling an all‑female jury for the trial of a man accused of sexual assault.  The Court of Appeal allowed the appeal from conviction and ordered a new trial.

 

                   This ruling is limited to s. 563(1) and (2) (now s. 634(1) and (2)) of the Code.  As they now stand, they do not offend the constitutional guarantees of impartiality secured by ss. 7  and 11( d )  of the Charter .  There was therefore no constitutional basis for the ruling made by the trial judge in the instant case, restricting the Crown and the accused to four peremptory challenges and depriving the Crown of its right to stand by prospective jurors.

 

II --The Consequences of the Trial Judge's Ruling on the Validity of the Trial

 

                   The appellant submits that s. 686(1) (b)(iv) of the Criminal Code , R.S.C.,  1985, c. C-46 , can be used by an appellate court to cure the error that was made by the trial judge in his order.

 

                   Section 686 of the Code reads as follows:

 

                   686. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand trial, or against a special verdict of not guilty on account of insanity, the court of appeal

 

                                                                    ...

 

(b) may dismiss the appeal where

 

                                                                    ...

 

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

 

                   The appellant relies on R. v. Cloutier (1988), 43 C.C.C. (3d) 35, a decision of the Ontario Court of Appeal.  There the accused had been excluded from the courtroom in the course of the trial, in violation of s. 577 of the Criminal Code, R.S.C. 1970, c. C-34.  After having reviewed and distinguished precedents that had been decided before s. 613(1)(b)(iv) of the Code (now s. 686(1)(b)(iv)) came into force, the Ontario Court of Appeal discussed the intent of Parliament in enacting this section at p. 46:

 

                   It is appropriate to consider at this point, the purpose of the enactment of s. 613(1)(b)(iv) [now s. 686(1)(b)(iv)].  At the very least Parliament must have intended to give to the Court of Appeal a discretionary power which it did not have previously.  It already had under s. 613(1)(b)(iii) [now s. 686(1)(b)(iii)] the power to dismiss an appeal where a mistake of law had occurred but the court was of the opinion that no substantial wrong or miscarriage of justice had occurred.  It was accordingly not necessary to enact a provision to cover errors in nature of procedural irregularities as they are by their very nature errors of law.

 

... where the ground for an appeal was an error of law and that error of law was the contravention of s. 577(1) [now s. 650(1), guaranteeing the right of the accused to be present at the trial], such error resulted in a loss of jurisdiction and the curative provisions of s. 613(1)(b)(iii) did not apply even though the error did not result in substantial wrong or miscarriage of justice.... A fortiori, if the ground of appeal was that the court, in the first instance, had no jurisdiction over the class of offence of which an appellant had been convicted, the Court of Appeal could not rely on the provisions of s. 613(1)(b)(iii).

 

... the inclusion of the words "the trial court had jurisdiction over the class of offence of which the appellant was convicted" in s. 613(1)(b)(iv) make it quite clear that the new provision was intended to give to the Court of Appeal the discretionary power to dismiss an appeal where a court has jurisdiction in the first instance but has lost jurisdiction as a result of some procedural irregularity.

 

The Court of Appeal summed up its reasoning at p. 48:

 

... it is necessary to distinguish between (1) errors of substance such as exist in cases where the court has no jurisdiction over the class of offences charged and which are not procedural in nature at all; (2) irregularities in procedure of a relatively minor nature which do not result in a loss of jurisdiction on the part of the trial court, and (3) irregularities in procedure which are so serious in nature that they are deemed to be matters of substance which result in a loss of jurisdiction.

 

... the wording of s. 613(1)(b)(iv) makes it clear that its curative provisions do not apply to the first type of error.  It is equally clear that its curative provisions do apply to the second type of error or irregularity but that type of error could be dealt with under s. 613(1)(b)(iii).  There would be no point in enacting s. 613(1)(b)(iv) for this purpose.

 

... the curative provisions do apply to the third type of error or irregularity.  Although the third type of procedural irregularity is one that is so serious that it is deemed to be fundamental in nature and results in a loss of jurisdiction, it does nevertheless have its origin as a procedural irregularity at trial.

 

                   I agree with this interpretation of s. 686(1)(b)(iv) of the Code.  Parliament clearly intended to limit annulments for jurisdictional grounds to cases where prejudice to the accused has occurred, provided the court had jurisdiction over the class of offences in question.  In the instant case, the District Court of Ontario had jurisdiction over the offence with which the accused was charged, and therefore the error of the trial judge would come under the third category outlined by the Ontario Court of Appeal in Cloutier, supra.  The error could be cured if the Court found there was no prejudice to the accused.

 

                   There is one further aspect, however, that justifies annulling the trial, and the Court of Appeal rightly distinguished its Cloutier decision, supra, on this basis.  Section 686(1)(b)(iv) speaks of a "trial court".  A trial court, for indictable offences, is defined at s. 471 of the Code (R.S.C., 1985, c. C-46):

 

                   471.  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.

 

This definition is repeated in s. 536(2) of the Code, in the address to the accused for his election.

 

                   As can be seen from s. 471 of the Code, a jury is more than an incident or a procedural tool in a trial case.  The jury is the court, together with the trial judge.  If the jury is not constituted according to the rules, the court exists no more than if the judge had been unlawfully appointed.  In the case at bar, the problem is not one of application of the jury selection rules, which could have been saved by s. 686(1)(b)(iv) of the Code.  The rules were changed.  The jury was selected pursuant to other rules than those set out in the Code.  There was therefore no trial court properly constituted, and the appropriate sanction is annulment.

 

                   This holding does not detract from the classification proposed in Cloutier, supra.  In order for the saving provisions of s. 686(1)(b)(iv) of the Code to find application, not only must the court have jurisdiction over the class of offence, but it must also be a court within the meaning of the Code.  Any failure with respect to these conditions constitutes an error falling in the first category outlined in Cloutier, supra.

 

                   The trial was therefore null.

 

III -- Section 10( b )  of the Charter 

 

                   This issue is better left to the determination of the judge that will hear the new trial in this case.  I nevertheless agree with Stevenson J. that the trial judge was in a better position to rule on the admissibility of the statements, that the Court of Appeal should not have interfered with his determination and that the issue under his disposition of the appeal is moot as to the statement which was admitted.

 

IV -- Answers

 

                   I would answer the constitutional questions as follows:

 

1.Are ss. 633 and 634 of the Criminal Code , R.S.C., 1985, c. C-46  [formerly R.S.C. 1970, c. C-34, ss. 562 and 563], inconsistent with ss. 7 , 11( d )  or 15  of the Canadian Charter of Rights and Freedoms ?

 

A.Section 634(1) and (2) (formerly R.S.C. 1970, c. C-34, s. 563(1) and (2)) of the Criminal Code  are not inconsistent with ss. 7  and 11( d )  of the Canadian Charter of Rights and Freedoms .  The allegation of a violation of s. 15  of the Charter  was abandoned.  Sections 633  and 634(3)  of the Criminal Code  (formerly ss. 562 and 563(3)) were not challenged.

 

2.If the answer to question 1 is affirmative, are ss. 633 and/or 634 [formerly R.S.C. 1970, c. C-34, ss. 562 and/or 563] justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

A.This question does not arise.

 

V -- Conclusion

 

                   The trial judge erred in restricting the number of peremptory challenges to four for each side and in depriving the Crown of its right to stand by jurors.  I would therefore dismiss the appeal and maintain the setting aside of the acquittal of the appellant and the direction that a new trial be held.

 

//Stevenson J.//

 

                   The following are the reasons delivered by

 

                   Stevenson J. -- This case concerns the constitutional validity of the jury selection process contained in s. 563 of the Criminal Code, R.S.C. 1970, c. C-34, (now R.S.C., 1985, c. C-46, s. 634 ).  At issue is whether this process, which grants the Crown 48 stand bys and four peremptory challenges while the accused's being allowed only four, 12 or 20 peremptory challenges, infringes the accused's right to be tried by an independent and impartial jury as guaranteed by the Canadian Charter of Rights and Freedoms .  Also in issue is the admissibility of certain of the appellant's statements allegedly taken in violation of his right to counsel.

 

Facts

 

                   The appellant was charged with sexual assault pursuant to s. 246.1 (now s. 271) of the Criminal Code .  The charge arises from an incident which occurred in the early morning hours of December 1, 1984.

 

                   The appellant was arrested later that day.  Two police officers attended at his home where he resided with his parents.  Upon arrest, the appellant was informed of his right to counsel.  Immediately after this, his father, Mr. Bain, told him not to say anything until he had seen a lawyer.  While his son got dressed in preparation to accompany the police, Mr. Bain, with the help of one of the police officers, attempted to retain a lawyer by looking through the Yellow Pages.  After being unsuccessful with two or three numbers, the police officer gave him a business card with his telephone number on it.  He told Mr. Bain that when a lawyer had been retained, the lawyer should call the officer at the number on the card.  The appellant then left with the officers.

 

                   After both officers returned to the car, they drove off with the appellant and parked down the street.  The police officers updated their notebooks and were discussing between themselves what had occurred in the house.  According to one of the officer's (McIntyre) testimony in chief, the appellant initiated an inculpatory conversation.

 

                   During his testimony on the voir dire, the appellant denied making some of these statements; in particular, he denied making the inculpatory admissions.

 

                   Upon arrival at the police station, the appellant was placed alone in an interview room.  About 25 minutes later, a lawyer who had been retained by Mr. Bain called for the police officer.  McIntyre returned the telephone call 10 minutes later.  The lawyer told McIntyre that he had been retained by the appellant's parents on behalf of the appellant.  McIntyre informed the lawyer of the circumstances of the investigation and of the alleged sexual assault and told the lawyer that the appellant would probably be released later that day.  The lawyer could not attend at the police station that day so he simply told McIntyre not to take any statement from the appellant until he, the lawyer, was present.  On the stand, the lawyer could not remember whether he had asked to speak to the appellant.

 

                   Following this telephone conversation, McIntyre (and another officer, Chisholm) went into the interview room with the appellant.  According to the appellant's testimony, he asked  whether his father had called. McIntyre told him that his father had not called.  The appellant said that he wanted to contact his father to find out if his father had retained a lawyer.  McIntyre told the appellant that he could call his father later.  At no time did McIntyre tell the appellant about the telephone call from the lawyer.  The police officers initiated an interrogation of the appellant.

 

                   The appellant told the officers that he was very impaired the previous night due to the intake of a considerable amount of alcohol as well as one "hit" of L.S.D.  The officers then questioned the appellant about his prior relationship with the complainant.  He was also questioned about his interaction with the complainant on the night in question.

 

                   On April 21, 1987, the appellant was tried before a judge and jury in Brampton, Ontario, on a charge of sexual assault.  Following arraignment, but before the first prospective juror was asked to step forward, appellant's counsel sought a ruling that both the Crown and the defence each be limited to four peremptory challenges and that the Crown be denied the power to stand jurors by.  The trial judge made the requested ruling based on his own holdings to the same effect in other cases.  He considered himself bound by his own ruling "until the Court of Appeal rules otherwise".  The Crown's objection was noted.  The jurors were then selected with both the defence and the Crown exercising their four peremptory challenges.

 

                   Following a 14-day trial, the jury acquitted the appellant.  On January 31, 1989, the Court of Appeal allowed the Crown's appeal ((1989), 47 C.C.C. (3d) 250) and ordered a new trial.  The appellant appeals to the Supreme Court of Canada as of right.

 

Relevant Legislation

 

Canadian Charter of Rights and Freedoms 

 

                   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.

 

                   10.  Everyone has the right on arrest or detention

 

                                                                    ...

 

(b)  to retain and instruct counsel without delay and to be informed of that right;. . .

 

                   11.  Any person charged with an offence has the right

 

                                                                    ...

 

(d)  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

 

Criminal Code, R.S.C. 1970, c. C-34

 

                   562. (1)  An accused who is charged with high treason or first degree murder is entitled to challenge twenty jurors peremptorily.

 

                   (2)  An accused who is charged with an offence, not being high treason or first degree murder, for which he may be sentenced to imprisonment for more than five years is entitled to challenge twelve jurors peremptorily.

 

                   (3)  An accused who is charged with an offence that is not referred to in subsection (1) or (2) is entitled to challenge four jurors peremptorily.

 

                   563. (1)  The prosecutor is entitled to challenge four jurors peremptorily, and may direct any number of jurors who are not challenged peremptorily by the accused to stand by until all the jurors have been called who are available for the purpose of trying the indictment.

 

                   (2)  Notwithstanding subsection (1), the prosecutor may not direct more than forty-eight jurors to stand by unless the presiding judge for special cause to be shown, so orders.

 

                   (3)  The accused may be called upon to declare whether he challenges a juror peremptorily or for cause before the prosecutor is called upon to declare whether he requires the juror to stand by, or challenges him peremptorily or for cause.

 

                   567. (1)  A prosecutor or an accused is entitled to any number of challenges on the ground that

 

(a)  the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to,

 

(b)  a juror is not indifferent between the Queen and the accused,

 

(c)  a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months,

 

(d)  a juror is an alien,

 

(e)  a juror is physically unable to perform properly the duties of a juror, or

 

(f)  a juror does not speak the official language of Canada that is the language of the accused ....

 

                   (2)  No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

 

                   570. (1)  Where, as a result of challenges and directions to stand by, a full jury has not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and they shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them or shows cause why they should not be sworn.

 

                   (2)  Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor may require the names of those jurors to be put into and drawn from the box in accordance with section 560, and those jurors shall be challenged, ordered to stand by or sworn, as the case may be, before the names of the jurors who were originally ordered to stand by are called again.

 

Judgments

 

Voir Dire -- District Court (Kent Dist.Ct.J.)(1987), 30 C.R.R. 75

 

                   On the voir dire held to determine the admissibility of the utterances made by appellant to the police, the trial judge held that only those statements made before McIntyre's conversation with appellant's lawyer were admissible.  The police officer knew that counsel had been retained for the appellant as a result of his discussion with the lawyer.  The trial judge found failure of the police to communicate to the appellant the fact that counsel had been retained to be contrary to the spirit of the judgment in R. v. Greig, [1987] 56 C.R. (3d) 229, per Dupont J.  In his opinion, at p. 78:

 

                   The police effectively foreclosed any opportunity that the accused had to consult with counsel retained for him before his interview, by not advising the accused that the lawyer retained for him by his family was on the telephone. Surely that opportunity should not be determined by the retaining of counsel who knows what specific question to ask an investigating officer.

 

                   The fact that the accused was a "young offender" facing an extremely serious criminal charge was significant to the trial judge and constituted special circumstances.  Further, the judge noted at p. 78:

 

Surely, to suggest that no obligation arises on the part of the investigating officer merely because the family-retained lawyer does not make a request in the specific words that the officer is listening for does not change the picture. Certainly it does not place too high an obligation on the police to pass on to a young alleged offender facing a very serious charge the fact that his father has made a lawyer available for him, as he promised when the accused was removed from his home.

 

For those reasons, the judge held that the appellant's right to counsel had been breached by the investigating officer.  Before continuing, he noted that the oral utterances by the appellant were made freely and voluntarily.

 

                   He then turned to consider whether the statements should be excluded.  The trial judge concluded, at p. 79, that "a reasonable person, dispassionate and fully apprised of the circumstances of this case" would probably conclude that the admission of the appellant's statements made after the officer was aware that counsel had been retained for the appellant would bring the administration of justice into disrepute.  Accordingly, all the utterances made by the appellant after the telephone call were held to be inadmissible.

 

Ontario Court of Appeal (Dubin A.C.J.O., Zuber and Finlayson JJ.A.)(1989), 47 C.C.C. (3d) 250

 

                   Writing the judgment of the Court, Finlayson J.A. first considered whether the trial judge erred in ordering that both the Crown and the appellant were to have an equal number of peremptory challenges with no power to the Crown to stand jurors aside as permitted in the Criminal Code .  In his view, the trial judge clearly erred.  Relying on R. v. Varga (1985), 18 C.C.C. (3d) 281, and R. v. Stoddart (1987), 37 C.C.C. (3d) 351 (both decisions of the Ontario Court of Appeal), he held that the jury selection procedure does not infringe ss. 7 , 11( d )  or 15  of the Canadian Charter of Rights and Freedoms .

 

                   Relying on R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, Finlayson J.A. held that the failure to follow the jury selection process in the Criminal Code  is fatal to the jurisdiction of the trial court and could not be cured by invoking s. 613(1)(b)(iv) (now s. 686(1) (b)(iv) of the Criminal Code .  Finlayson J.A. held there must be a new trial on that basis alone.

 

                   He then considered the admissibility of the appellant's utterances.  He did not think there would be any helpful information given to the appellant had the officer relayed to him the fact that his lawyer called since the lawyer did not ask to speak to him or to pass on any message.  Relying on R. v. Logan (1988), 46 C.C.C. (3d) 354, Finlayson J.A. concluded that the trial judge erred in his ruling on the admissibility of the utterances.  He noted that there was to be a new trial on the jury selection issue and that it is open for the trial judge to take a different view of the evidence.  In Finlayson J.A.'s opinion, however, based on Kent Dist. Ct. J.'s own findings of fact, Kent Dist. Ct. J. was in error.  Finlayson J. A. noted at p. 257:

 

... it is my view that he was in error in fixing the police officer with the responsibility of doing more than answer literally the question put to him by Bain.  He was not obliged to volunteer additional information.  Bain was entitled under s. 10( b )  of the Charter  to be informed of his right to retain and instruct counsel without delay.  That was done. In this case, on the evidence, Detective McIntyre went further and assisted Bain's father in finding a lawyer in the yellow pages of the telephone book.

 

                   The detective knew that [counsel] had been retained but he also knew that the solicitor did not propose to come to the police station and had not asked to speak to his client over the telephone. He received no indication of when, if ever, Mr. Munro was prepared to give legal advice to his client. Surely this is not enough to bring the police investigation to a dead halt or even deflect their attention from a proper questioning of the respondent ....

 

                   The appeal was allowed and a new trial directed.

 

Constitutional Questions

 

                   The following constitutional questions were stated on June 7, 1989:

 

1.Are ss. 633 and 634 of the Criminal Code , R.S.C., 1985, c. C-46 , [formerly R.S.C. 1970, c. C-34, ss. 562 and 563] inconsistent with ss. 7 , 11( d )  or 15  of the Canadian Charter of Rights and Freedoms ?

 

2.If the answer to question 1 is affirmative, are ss. 633 and/or 634 [formerly R.S.C. 1970, c. C-34, ss. 562 and/or 563] justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

Issues

 

                   Although other provisions and issues were discussed, this case is to be resolved by addressing the following questions:

 

1.Is s. 562 (now s. 634) of the Criminal Code  inconsistent with s. 11(d)?

 

2.If so, is it saved by s. 1?

 

3.Did the trial judge err in excluding the statements made after the lawyer retained by the father telephoned the police and the appellant inquired whether his father had telephoned?

 

                   Also argued before this Court and below, was whether s. 686(1)(b)(iv) (formerly s. 613(1)(b)(iv)) of the Criminal Code  could be applied to cure a loss of jurisdiction resulting from the failure of the trial judge to observe s. 563 of the Code.  As a result of my conclusion on the first issue, I need not address that question.

 

Analysis

 

1.  Section 11(d)  of the Charter 

 

                   The independence and impartiality of the tribunal by which an accused person is tried is a central feature of our criminal law that has long been recognized.  The importance of this right is illustrated by its entrenchment in s. 11( d )  of the Charter .  The appellant argues that the system of selecting jurors contained within the Criminal Code  impairs the  appearance of impartiality and is therefore unconstitutional.  The appellant's argument is directed at the disproportionate powers the Crown and the accused have to remove potential jurors from the selection process.

 

                   The Criminal Code  sets out the following  procedures.  Each party is allowed unlimited challenges for cause and s. 567 (now s. 638) of the Criminal Code  specifies the grounds upon which this can be done.  Additionally, each party is allowed to exercise peremptory challenges.  A peremptory challenge allows a party to dismiss a person from serving on the jury without providing a reason.  The Crown is allotted four such challenges.  If charged with murder or high treason, the accused is allowed 20 peremptory challenges.  For other offences for which the accused may be sentenced to more than five years' imprisonment the accused receives 12 peremptory challenges.  For all other offences, the accused is allowed four peremptory challenges.

 

                   In addition to these challenges, however, the Crown is allowed to stand by up to 48 potential jurors under s. 563 (now s. 634).  Theoretically the stand by is different from a peremptory challenge.  Rather than dismissing the potential juror using a peremptory challenge or challenging for cause, the person is asked to stand by.  The following description of the nature of the stand by from Morin v. The Queen (1890), 18 S.C.R. 407, is apt.  Chief Justice Ritchie explained at p. 421:

 

... after giving the crown in all criminal trials four peremptory challenges it [the legislation] declares that this shall not be construed to affect the right of the crown to cause any juror to stand aside until the panel has been gone through or to challenge any number of jurors for cause.... the panel shall be gone through, or perused as it is termed, once on which calling or perusal it was the privilege of the crown to require jurors to stand aside until the list shall be gone through.  Having been gone through and a jury not secured the clerk proceeds to go over the panel a second time when the right of the crown to require jurors to stand aside ceased, and the crown was bound, if its officers sought to perfect its challenge, to do so by showing some good and sufficient cause or to challenge peremptorily if the peremptory challenges were not exhausted.

 

                   The accused does not have this right to stand by jurors.  It is this asymmetry that the appellant alleges which produces the appearance of partiality sufficient to amount to an infringement of the Charter .

 

The Appropriate Test

 

                   As a starting point, s. 11( d )  of the Charter  requires that an accused person receive a fair trial by an independent and impartial tribunal.  The test for that requirement was set out by Justice Le Dain in Valente v. The Queen, [1985] 2 S.C.R. 673, which has most recently been approved by this Court in R. v. Lippé, [1991] 2 S.C.R. 114.  Although those cases focused on judicial independence, the test applies to impartiality as well.  Le Dain J. framed the test as follows, at p. 689:

 

... I think, that the test for independence for purposes of s. 11( d )  of the Charter  should be, as for impartiality, whether the tribunal may be reasonably perceived as independent.  Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice.  Without that confidence the system cannot command the respect and acceptance that are essential to its ineffective operation.  It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.

 

                   It is clear from this passage that it is not necessary to find that juries are actually partial before an infringement of the Charter  is found.  The informed observer's perception that the system of selecting jurors impairs impartiality is sufficient.  If one party enjoys a greater influence, the observer need only have a reasonable apprehension of partiality.  This accords with Le Dain J.'s reference to de Grandpré J.'s comments from Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369.  At page 684 of Valente, supra, Le Dain J.  reproduced de Grandpré J.'s comments at p. 394:

 

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.   In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude...."

 

Application of the Test

 

                   In my view, the disparity between the accused's and the Crown's right to challenge jurors cannot meet the test from Valente.  Briefly the stand by cannot be upheld because the Crown is allowed to have a greater role in fashioning the jury.  It may take partisan interests into consideration in carrying out that role.  The accused's role in selecting his or her jury of peers is thereby significantly diminished, impairing the appearance that the jury is indifferent as between the Crown and the accused.  This offends the Charter  because the appearance of impartiality is an essential element of the right guaranteed by s. 11( d )  of the Charter .

 

                   I base my conclusions on the ground that the substantial disparity contained in this legislation  exists not in a mere procedure or rule but in the role each party has in choosing the jury by which the accused will be tried.

 

Numerical Inequality

 

                   I turn first to the extensive discrepancy between the number of challenges afforded to the Crown and the accused.  I emphasize that it is not merely the inequality of the position of the Crown and the accused that leads to an inference of the appearance of partiality.  The Crown and the accused are never in a parallel position during the course of a trial.  Indeed, there are many procedures, rules, and practices contained within the Code and the common law that detract from any symmetry between the Crown and the accused.  There is necessarily a difference in the status and power of the Crown and the accused given the nature of their respective roles in a trial.  I do not intend to cast doubt on that reality, but in this case, the substantial difference in the fundamental activity of choosing the jury demands explanation and justification.

 

                   I proceed upon the basis that the power to stand by jurors in many instances amounts to granting the Crown additional peremptory challenges.  The appellant argued that the stand by was in fact tantamount to a peremptory challenge.  Once a juror is stood by, that person will not be called again to sit on that jury unless the whole panel has been exhausted.  In both written and oral argument the Crown made the important concession that in some cases the stand by does amount to a peremptory challenge.  Once it is recognized that the stand by can and does in fact operate as a peremptory challenge, there can be no obvious justification for granting 52 peremptory challenges (in the form of stand bys and statutorily granted peremptory challenges) to the Crown where the accused only enjoys four, 12 or 20.

 

                   I recognize that in the case of multiple defendants, each accused is entitled to the same number of challenges as if the accused were being tried separately, whereas the Crown is limited to the amount specified in the Code.  For instance, on a charge for murder where there are three defendants, the accused persons would have a total of 60 peremptory challenges whereas the Crown would be limited to a total of four peremptory and 48 stand bys.  Similarly, if there are five or more co-defendants for any other offence which carries the possibility of more than five years' imprisonment, the Crown's number of peremptory challenges and stand bys would be equal or less than the total defence peremptory challenges.  For offences not carrying more than five years liability of imprisonment, however, there would have to be 13 or more co-defendants before the Crown would have the equivalent or less combined stand by and peremptory challenges than the total of the accused persons' peremptory challenges.

 

                   The spectre of multiple defendants cannot justify conferring upon the Crown such a substantial advantage in the number of challenges.  In most situations, the Crown enjoys far more peremptory challenges in the form of stand bys than the accused.  The Crown does not have as strong a claim to the concept of challenge without cause as does the accused and there is no inherent reason why the Crown would need more (or perhaps even as many) challenges as the accused.  In any event, I do not think the relative infrequency of the scenarios listed above can serve to justify the more common occurrence of the Crown's possessing a broad numerical advantage.

 

The Stand By and the Peremptory Challenge

 

                   The Crown argued that the stand bys are necessary because they have a purpose beyond their utility as a peremptory challenge.  In my opinion, a brief review of the historical origins of the stand by illustrates its basis is suspect and there is little modern justification for its continued existence.

 

                   The English common law originally granted the Crown an unlimited capacity peremptorily to challenge jurors while the accused was only allowed 35 peremptory challenges.  This unlimited power led to abuses because the Crown would peremptorily challenge the whole array of jurors without qualifying 12 jurors.  The trial was then postponed and the accused kept in custody until the next session.  An attempt was made to curtail this abuse in 1305 when a statute containing the following edict was passed (An Ordinance for Inquests, 33 Ed. 1, c. 4):

 

... but if they that sue for the King will challenge any of those Jurors, they shall assign of their Challenge a Cause certain, and the Truth of the same Challenge shall be enquired of according to the Custom of the Court; ...

 

                   Despite the fact that the logical reading of this provision seems to indicate that the Crown had no power to challenge except for cause, it was interpreted to mean that the Crown need not assign the cause for its challenge until the panel had been gone through.  Presumably the Courts felt they could not sanction eliminating the Crown's power to challenge absent cause while accused persons retained that ability.  It was thus that the stand by was born.  Certain attempts were made to impugn this rule but it survived and was re-enacted in The Juries Act, 1825 (Eng.), 6 Geo. 4, c. 50, s. 29, which was interpreted in the same manner as its predecessor.

 

                   Canada inherited this legacy.  Section 668(9) of The Criminal Code , 1892, S.C. 1892, c. 29, granted the Crown an unlimited power to stand by jurors.  This was eventually reduced to 48, as now exists, in 1917 (An Act to amend the Criminal Code (respecting jurors), S.C. 1917, c. 13, s. 1).  When this legislation was being debated, the Minister of Justice, Hon. C. J. Doherty noted that:

 

                   Perhaps it might be more correct to say that the more you increase the number of men from whom the Crown can, by this process of elimination, select the twelve that it wants, the more you increase the opportunity for the Crown to find a jury exactly to its liking.

 

[House of Commons Debates, Aug. 9, 1917, at p. 4309.]

 

The twentieth century justification of the stand by was discussed by Hart J.A. in R. v. Johnstone (1986), 26 C.C.C (3d) 401 (N.S.S.C.A.D.), as follows at p. 412:

 

                   The traditional reason for permitting the Crown to stand aside jurors as they were called to the book to be sworn was the limited size of a jury panel.  If both the Crown and the accused had the number of peremptory challenges available to the accused the panel would soon become exhausted and the need for talesmen would arise.  To prevent this problem the Crown was permitted to stand aside the juror rather than challenge him at that time, and this would permit the juror to remain on the panel until all of the members have been exhausted and then be recalled if a full jury had not been sworn.  Those jurors who had been stood aside would then still be available to complete the jury without the need of talesmen: ...

 

See also  McEldowney, "`Stand By For The Crown':  an Historical Analysis", [1979] Crim. L.R. 272, Blackstone, Commentaries on the Laws of England, Lewis ed., vol. 4, pp. 354-56 and pp. 1739-42 (Lewis' edition), Morin v. The Queen, supra, and R. v. Cecchini (1985), 22 C.C.C. (3d) 323 (Ont. H.C.).  This modern rationale does not justify numerical disparity, nor permit only one of the adversaries to defer its challenge.

 

                   I turn now to determine the rationale for peremptory challenges, in order to ascertain the justification for any disparity between the powers of the crown and the accused.

 

                   What, then is the basis for the peremptory challenge?  I can find no basis other than that expressed by Blackstone, supra, at p. 353 and p. 1738 (of Lewis' edition):

 

... in criminal cases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous.  This is grounded on two reasons.  i.  As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.  2.  Because, upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment, to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside.

 

                   This passage was quoted in Cloutier v. The Queen, [1979] 2 S.C.R. 709, at p. 720.  The basis of the peremptory challenge is "purely subjective."  In R. v. Mason, [1981] Q.B. 881 (C.A.), the history of stand bys was considered.  At pages 889-90 Lawton L.J. refers to a quotation from Lord Campbell C.J. that a stand by is the equivalent of a peremptory challenge which could be exercised until the whole panel had been called.  This right may be exercised without valid provable objection.  At page 888, the court gives as an example of the use of the stand by an instance where a poacher might properly be stood by where the charge involves wounding a gamekeeper while poaching.  The court noted that this juror is unlikely to be impartial.  So it is clear that "partiality" may be considered in exercising the power.

 

                   As no objective showing need be made, it is clear that either side may exercise the right to exclude a juror on considerations of partiality.

 

                   The Crown, in exercising its stand by power, is hoping to achieve a peremptory challenge, deferring its challenge for cause, or deferring its peremptory challenge.  In any case it is given greater play in the selection of the jury, in its fashioning, than is permitted to the accused.

 

                   In argument, counsel for the Crown contended that the stand by is a "deferred challenge for cause" and therefore should not be viewed in the same vein as peremptory challenges.  I am unable to accept that characterization in the light of the acknowledgment that the stand by may be employed as a peremptory challenge and given the reality of large jury panels that ensures that in a great many cases a juror stood by will not be recalled.  Informed commentators have no difficulty in concluding that the "stand by" gives substantial rights of challenge:  East, "Jury Packing:  A Thing of the Past?" (1985), 48 Mod. L.R. 518, at p. 520.  McEldowney, supra, says it "... is analogous to the defence's right of peremptory challenge ...," at p. 272, quoting the Morris Report, Cmnd 2627 (1965).  That the challenge and stand by may both be used for partisan reasons was the conclusion of the Roskill Committee, Fraud Trials, 1986, paragraphs 7.36 ff. which condemned manipulation and recommended abolition of both the peremptory challenge and the stand by.  Consequently the peremptory challenge has been eliminated and the stand by substantially circumscribed in England:  Halsbury's Laws of England, Annual Abridgment, 1988, paragraph 1313.

 

                   Even if the "stand by" is recalled the Crown may still exercise a peremptory challenge to exclude that person.  In this sense, the stand by is not necessarily a deferred challenge for cause.  That description was appropriate at one time but the present section (s. 641, formerly s. 570) of the Criminal Code  states that if no names remain to be called and a full jury is not sworn, the names of those stood by are called again and "they shall be sworn, unless challenged by the accused, or unless the prosecutor challenges them or shows cause why they should not be sworn".  It is clear, therefore, that a juror stood by can still be peremptorily challenged by the Crown or the accused.

 

                   The Crown also claims it acts in its quasi-judicial role and uses the stand by to exclude those people who are inappropriate but whose objectionability neither fits within the boundaries of s. 567 (now s. 638) nor is egregious enough to warrant the utilization of a peremptory challenge.  It also argued that the modern justification for its power to challenge is to provide a balanced selection of jurors.  The Crown claimed it uses the challenges only within its quasi-judicial role:  it seeks only to secure an impartial jury and not one predisposed towards the Crown's case.

 

                   In the absence of some control, however, the observer of the process is bound to conclude that the crown possesses a substantial advantage and by its uncontrolled exercise may influence the make-up of that jury under partisan considerations.

 

                   I agree with Professor Mewett's observation in "The Jury Stand-By" (1988), 30 Crim. L.Q. 385, at p. 386, "But the dividing line between the Crown's legitimate interest in ensuring an impartial jury and any illegitimate interest it may have in packing the jury, if not with favourable jurors then at least with not unfavourable jurors, is not an easy one to draw and even less easy to enforce".  In Cloutier, supra, at pp. 720-21, this Court noted that peremptory challenges were intended to give each party the right to remove individuals "whom he does not believe to be impartial".  To a similar effect is the observation, quoted above, of the Minister of Justice in 1917.

 

                   While I agree that the stand by may be used beneficially, I do not think we can rely on professed good intentions to uphold such a disparity. An example of the use of the power to tailor the jury selection is found in the recent case of R. v. Pizzacalla (1991), 5 O.R. (3d) 783. The Crown acts within an adversarial forum.  It is not unreasonable to think that there are times when the Crown's challenges or stand bys are motivated by an anxiety to secure a conviction rather than a strictly quasi-judicial interest in the fairness of the trial.  It is, indeed, proper for the Crown to use the process to put aside potential jurors who may be partial to the accused. In the context of the jury trial "impartial" means "indifferent" and the peremptory powers enable the parties a limited power to exercise subjective assessments of that indifference.  What cannot be justified to the observer of the process is granting the Crown a greater opportunity to carry these assessments into the selection process.

 

                    Would an informed observer perceive an unfairness in the jury selection process that may affect the indifference, real or perceived, of the jury?  If the Crown exercises a quasi-judicial function to stand by jurors its motivation and reasons are unknown.  Keeping in mind the fact that the juror stood by is not often recalled, there is an inherent perception that the jury selection process is unbalanced.  Regardless of the Crown's motives and reasons for standing by a juror, there remains a clear impression of inequality caused by the marked imbalance between the Crown's and the accused's ability to configure the jury.  While the Crown may perform a quasi-judicial function it is not uninterested in securing convictions of accused persons.  Section 563 (now s. 634) is unconstitutional because it provides for the apparent transformation of this interest into reality.  This offends s. 11( d )  of the Charter .

 

                   As the Crown noted in this case, the constitutional validity of s. 563 (now s. 634) has been examined by many courts before.  In many of these cases, the courts recognized the inherent unfairness in the difference between the Crown's and the accused's ability to challenge jurors and yet upheld the section.  O'Leary J.'s comments in R. v. Piraino (1982), 67 C.C.C. (2d) 28 (Ont. H.C.), are typical.  At pages 30-31 he stated:

 

                   There is no doubt that the right given the Crown to challenge four jurors peremptorily and to stand aside 48, while the accused on a rape charge can challenge but 12 jurors peremptorily and the requirement that the accused declare first whether he challenges a juror, gives the Crown an unfair advantage in the jury selection process.  This does not mean, however, that there is any danger that the jury chosen will not be independent and impartial.  It simply means that the Crown has a much better chance than the defence of selecting out of the entire jury panel a jury it hopes will be most sympathetic to its position.  [Emphasis added.]

 

                   In R. v. Johnstone, supra, Hart J.A. also discussed the validity of s. 563 (now s. 634).  At pages 412-13 he noted:

 

                   In recent years jury panels have become much larger and there is less need for the Crown to exercise its right to stand individual jurors aside, but unfortunately a practice has arisen with certain Crown counsel to stand aside large numbers of jurors, and it may be that the time has come to eliminate this process and balance the number of peremptory challenges available to both the Crown and the accused.  [Emphasis added.]

 

Similarly DuPont J. in R. v. Cecchini, supra, noted at p. 326:

 

... the disparity in the rights or challenges as between the Crown and the accused in most cases prevents that vital part of a criminal trial from appearing fair.  This results from the use made by Crowns of their rights to stand aside, which in many cases gives them, in the eyes of the public, a major advantage.  It can be argued that a jury selected with a marked advantage to one side in its selection will not meet the test of appearing to be impartial.  [Emphasis added.]

 

                   In Cecchini, where the accused was charged with murder, DuPont J. limited the Crown's stand bys to 16.  See also R. v. Favel (1987), 39 C.C.C. (3d) 378 (Sask. C.A.), R. v. Stoddart (1987), 37 C.C.C. (3d) 351 (Ont. C.A.), and R. v. Ross (1986), 53 C.R. (3d) 81 (Ont. H.C.).

 

                   In all of these cases (except Cecchini) the courts, if asked, have upheld the constitutional validity of s. 563 (now s. 634).  In most of those cases, the following reasoning from Piraino was either explicitly or implicitly applied.  In his oral judgment, O'Leary J. stated at pp. 29-30:

 

                   The jury selection process is just one step in the trial. The course of a trial is governed and affected by almost countless rules relating to procedure and the admissibility of evidence. Many of those rules when isolated and looked at individually, would appear to favour either the Crown or the accused. Indeed, the same rule may at one point favour the Crown and at another point favour the accused. Others of those rules consistently favour either the Crown or the accused. The requirements; that the Crown prove each element of a charge beyond a reasonable doubt before there can be a conviction; that the accused cannot be required to testify and that the Crown and the trial judge may not comment on the fact that the accused has not testified are examples of rules that favour the accused.

 

                   In my view, so far as the issue before me is concerned, the Canadian Charter of Rights and Freedoms  gives to every citizen the right to a fair trial. It does not assure him the right that every rule that governs that trial, when examined individually, be fair to him. It does, however, assure him that any individual rule that is so unfair that it will result in an unfair trial being had will be struck down.

 

Potts J.'s comments in R. v. Ross, supra, reveal a similar viewpoint at p. 86:

 

                   When one reviews the entire jury selection process, it becomes clear that the acts complained of as being unfair are at the end of a rather lengthy process designed to ensure randomness and independence and impartiality.  Can the Crown's ability to request that a potential juror stand aside be seen to impugn this entire process?  I respectfully submit that it cannot. At best, the jury selection carried on in a courtroom by counsel is educated guesswork operating on a sample of strangers carefully chosen in a neutral fashion.  Does an individual, chosen at random, who has survived the scrutiny of the accused assume a pro-Crown bias merely because he is not asked by the Crown to stand aside?  Does a jury composed of such individuals become something less than "independent and impartial"?  Alternatively, does an individual who is initially asked to stand aside but later recalled assume a pro-accused bias merely because he had first been asked to stand aside?  I would respectfully submit that the individual biases of any potential juror are left unaffected by the Crown's request to stand aside or not. 

 

                   With respect this reasoning fails to recognize that the relative roles of the accused and the Crown in selecting the jury are not comparable to other procedures within the trial process.  The jury must be, and must be seen to be, impartial.  When the Crown enjoys a tactical advantage, as occurs because of the stand asides, the accused's role in selecting his or her jury is diminished.

 

                   The peremptory challenge is not, itself, under attack.  It may be used under partisan considerations, and so long as the right of exercise is proportionate neither the crown nor the accused can be said to have an unconstitutional advantage.

 

                   I now turn to what I take to be the main theses of the Crown's position.

 

                   Firstly the jury should be, and should be seen as, impartial, representative and competent.  While Canadian law has not adopted a theory of representativeness, I accept that proposition.  Then it is acknowledged that both parties are granted a limited opportunity to affect jury selection, having regard to these characteristics. It is acknowledged that the crown is given a greater opportunity to affect the selection.

 

                   This asymmetry is justified on the basis that the Crown has a greater interest than the accused.  I fail to see why the accused does not have the same interest in these factors that the Crown possesses. I see no inherent justification for giving the litigants different roles in selecting their jury.

 

                   Much is made of the quasi-judicial role of the prosecutor. Jury picking would be contrary to this duty.  But unlike the case in Lippé there are no effective safeguards in place to ensure that the decisions are all made only in the interest of the fair trial rather than in securing a conviction. The Crown does not need to disclose its reasons for standing by or exercising peremptory challenges.

 

                   It suggests that it has no adversary interest in jury selection process. I cannot accept that proposition as commending itself to anyone observing the trial process.

 

                   The apprehension of bias lies in the fact that the Crown has had a greater opportunity to choose jurors to its liking, free to do so under partisan considerations.  We are not here concerned about any mere trial rule, but rather the rules governing the selection of the tribunal.  The existence of the jurors' oath here is no greater protection than it is in the case of a disqualified member of an administrative tribunal.

 

                   This perception will arise in the majority of jury cases if equality is not applied from the beginning.  Given the absence of any need to justify its powers, the Crown cannot be shown as having taken a partisan advantage on any case by case basis.

 

                   That every accused receive a fair trial in front of an impartial and independent jury is an essential element of the fairness of the trial which s. 11( d )  of the Charter  guarantees.  In R. v. Barrow, [1987] 2 S.C.R. 694, Chief Justice Dickson, commented on the accused's right to be present during all stages of his or her jury trial.  He stated at p. 710:

 

                   The selection of an impartial jury is crucial to a fair trial.  The Criminal Code  recognizes the importance of the selection process and sets out a detailed procedure to be followed ....  Both the Crown and the accused participate in the process, with the right to challenge for cause or peremptorily and, in the case of the Crown, to stand aside potential jurors ....  The challenge for cause involves trial of the impartiality of potential jurors, with examination by either side.  The accused, the Crown, and the public at large all have the right to be sure that the jury is impartial and the trial fair; on this depends public confidence in the administration of justice.  Because of the fundamental importance of the selection of the jury and because the Code gives the accused the right to participate in the process, the jury selection should be considered part of the trial for the purposes of s. 577(1) [now s. 650].

 

Later, he noted at pp. 714-15:

 

... the most important aspect of the case, namely, the appearance of justice.  Even if the two-stage analysis of the empanelling process is a legally accurate description of the interplay of the Criminal Code  and the Nova Scotia Juries Act, it leaves out of account the effect of the proceedings in this case as they would appear to the average citizen: ...

 

                   What of the public perception?  This is a case where the public perception of the fairness of the proceedings is crucial.

 

                   The reasoning revealed in Piraino and Ross that has found s. 563 (now s. 634) valid was partially premised on the need of proof of real or actual partiality of juries.  With respect, that rationale is erroneous.  What s. 11( d )  of the Charter  requires is that there be, at minimum, a reasonable apprehension that juries generated by the selection process are impartial.  Allowing the accused to have a manifest role in that process confirms that the appearance of fairness and impartiality is maintained.  But when the Criminal Code  allows the Crown to have such substantial advantage in the ability to shape and fashion the jury, that perception is severely impaired.   This violates the test for 11(d).

 

2.  Section 1  of the Charter 

 

                   Only one party, the intervener the Attorney General of Canada, presented any argument on s. 1.  Its submission on this point relied on the arguments it presented on the s. 11(d) violation issue.  The Crown (Ontario) sought a declaration that s. 563 (now s. 634) does not violate s. 11( d )  of the Charter  or, in the alternative, that it is justified by s. 1  of the Charter .  No written or oral argument, however, was presented on this point.

 

                   In my view, the violation in this case would be difficult to justify given the nature and scope of that violation, but I need not answer that question.  It is a trite statement of the law to say that the Crown has the burden of establishing that a breach of the Charter  is demonstrably justified in a free and democratic society.  Neither the respondent nor the intervener identified any pressing concern which would justify a limitation.  The burden remains unsatisfied.  Therefore I find the infringement of s. 11( d )  of the Charter  by s. 563 (now s. 634) is not a reasonable limit.

 

                   I want to emphasize that I do not intend this finding to be an indication of whether or how a violation of the accused's right to be tried in front of an impartial and independent tribunal could be justified under s. 1  of the Charter .  That question is left for another day.

 

3.  Admissibility of the Statements

 

                   The third issue is whether the certain statements allegedly made by the appellant to the investigating officers are admissible.  At trial, Kent Dist. Ct. J. excluded any statement made by the appellant after the lawyer retained by his father spoke to McIntyre on the telephone.  Any statements made before that time were admitted.  Because of its view on other issues, the Court of Appeal held that a new trial was necessary.  It also stated it was open to the new trial judge to take a different view of the evidence but in its opinion the trial judge, based on his findings, was in error in excluding the statements taken after the lawyer called the police station.

 

                   In the Court of Appeal, the appellant apparently argued that the trial judge's ruling was correct because once the lawyer had been retained any questioning should have ceased.  At this Court, however, the appellant took a different view of this issue.  He now argues that his right to retain and instruct counsel was violated at the point of arrest.  In his submission, the police violated his s. 10(b) rights once they required him to leave his home before a lawyer had been contacted and therefore all the statements are inadmissible.

 

                   In my view, the trial judge was correct about the exclusion of the statements.  I am mindful that once an accused is informed of his or her right to counsel (as was found to be the case in this appeal) the accused has the onus of showing he was denied the opportunity to contact counsel.  As this Court held in R. v. Baig, [1987] 2 S.C.R. 537, at p. 540:

 

We agree with Tarnopolsky J.A. in R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), wherein he said, at p. 431:

 

... I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it.  No such evidence was put forth in this case.

 

                   In the present case, the accused did not put forward, nor does the record reveal, any evidence suggesting that he was denied an opportunity to ask for counsel before the inquiry at the police station.  Absent such circumstances, as that referred to by Tarnopolsky J.A., once the police have complied with s. 10(b), by advising the accused without delay of his right to counsel, there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.

 

                   The trial judge referred, at p. 78, to the "peculiar and special circumstances of this case ...."  The Court of Appeal found error in fixing the police with the responsibility of doing more than answering literally the appellant's question whether his father had called.  That question had to be addressed in the context of the evidence.  Given the circumstances, a literal response was misleading, because the obvious intent of that inquiry was to further the objective of communicating with counsel.  It was tantamount to an assertion by the appellant that he wanted counsel, and in those circumstances, the  answer was an evasion which the officers used to continue the questioning in the face of that assertion.  The trial judge had the advantage of assessing that inquiry and response in the particular circumstances and did not err in law in excluding the subsequent statements. On the assumption that first statement was properly admitted, (an interesting, but as I am about to show, hypothetical, question),  and the right to counsel waived for that purpose, then the trial court correctly found re-assertion of any rights that had been given up in the course of giving the first statement.

 

                   The appellant did urge that his right to retain and instruct counsel was denied at the point of arrest because police officers directed him to leave before a lawyer was contacted.  I do not pass upon this argument because the accused was acquitted notwithstanding the admission of the statement.  The ruling, so far as he is concerned, is now academic, indeed moot.

 

Remedy

 

                   For reasons discussed above, I find the portion of s. 563(1) (now s. 634(1)) and all of s. 563(2) (now s. 634(2)) which combined grant the Crown 48 stand bys to infringe s. 11( d )  of the Charter .  The Crown's power to peremptorily challenge jurors is preserved.  Since none of the parties presented arguments on the validity of s. 563(3) (now s. 634(3)), I refrain from commenting on the constitutionality of that section.

 

                   Basically the impugned provisions offend the Charter  because they impair the fairness of the trial by producing, to an informed observer, a reasonable apprehension of partiality.

 

Disposition

 

                   The portion of s. 563(1) (now s. 634(1)) and all of s. 563(2) (now s. 634(2)) of the Criminal Code  which confer upon the Crown 48 stand bys is inoperative and of no force because it offends s. 11( d )  of the Charter  and is not a reasonable limit demonstrably justified in a free and democratic society.  In addition, the trial judge was correct in his ruling on the admissibility of the appellant's statements.   The appeal is therefore allowed, the Court of Appeal's direction for a new trial is set aside and the appellant's acquittal restored.

 

                   I would permit Parliament six months in which to provide new legislation, otherwise the Code provisions will be invalidated to the extent that they permit the impugned inequality. This decision would, however, apply to any case in which the provision had been challenged and proceedings relating thereto are still on foot.

 

                   The constitutional questions are answered as follows:

 

1.Are ss. 633 and 634 of the Criminal Code , R.S.C., 1985, c. C‑46  [formerly R.S.C. 1970, c. C‑34, ss. 562 and 563] inconsistent with ss. 7 , 11( d )  or 15  of the Canadian Charter of Rights and Freedoms ?

 

A.  Sections 634(1) and (2) (formerly R.S.C. 1970, c. C‑34, ss. 563(1) and (2)) are inconsistent with s. 11(d) in so far as they provides the crown with a combination of peremptory challenges and stand bys in excess of the number of peremptory challenges permitted to an accused.  It is unnecessary to consider whether this provision violates s. 7.  The allegation of a violation of s. 15 was withdrawn.  Sections 633 and 634(3) (formerly ss. 562 and 563(3)) were not challenged.

 

2.If the answer to question 1 is affirmative, are ss. 633 and/or 634 [formerly R.S.C. 1970, c. C‑34, ss. 562 and/or 563] justified by s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

A. The violation is not justified under s. 1.

 

                   Appeal allowed, Gonthier, McLachlin and Iacobucci JJ. dissenting; s. 563(1) and (2) (now s. 634(1) and (2)) were inconsistent with s. 11(d )  of the Charter  and this violation was not justified under s. 1.

 

                   Solicitors for the appellant:  Rosen, Fleming, Toronto.

 

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

 

                   Solicitor for the intervener:  John C. Tait, Ottawa.