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

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

Allen Harry Lee Appellant v.

Her Majesty The Queen Respondent and

The Attorney General for Ontario and the Attorney General of Quebec Interveners indexed as: r. v. lee

File No.: 20235.

1989: March 22; 1989: December 21.

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

on appeal from the court of appeal for british columbia

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

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

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

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

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

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

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

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

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

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