R. v. Basarabas; R. v. Spek, (1982) 46 N.R. 69 (SCC)

• Judge: Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 25, 1982
• Jurisdiction: Canada (Federal)
• Citations: (1982), 46 N.R. 69 (SCC);31 CR (3d) 193;1982 CanLII 216 (SCC);[1983] 4 WWR 289;[1982] 2 SCR 730;2 CCC (3d) 257;46 NR 69;[1982] SCJ No 96 (QL);144 DLR (3d) 115

R. v. Basarabas (1982), 46 N.R. 69 (SCC)

MLB headnote and full text

R. v. Basarabas; R. v. Spek

Indexed As: R. v. Basarabas; R. v. Spek

Supreme Court of Canada

Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson, JJ.

November 25, 1982.

Summary:

At the trial of the accused a juror was discharged under s. 573 of the Criminal Code of Canada after the jury had been empanelled, but before the accused had been put in charge of the jury and before any evidence had been called. The trial proceeded and the accused were convicted. They appealed on the ground inter alia that the trial judge erred in permitting 11 jurors to give a verdict. The British Columbia Court of Appeal dismissed the appeal. The accused appealed. The Supreme Court of Canada allowed the appeal and ordered a new trial. The court held that for the purpose of the discharge of jurors under s. 573 the trial did not commence until the accused had been placed in the charge of the jury. Because the juror was discharged before that point the juror was not discharged "in the course of a trial" within s. 573 and he should have been replaced to give the jury a full complement of 12.

Criminal Law - Topic 4325

Procedure - Jury - Discharge of juror - Under s. 573 of the Criminal Code of Canada a juror may be discharged "in the course of a trial" - The Supreme Court of Canada held that a juror discharged after the jury had been empanelled, but before the accused has been put in charge of the jury, is not discharged "in the course of a trial" and should be replaced to give the jury a full complement of 12 members.

Criminal Law - Topic 4476

Procedure - Trial - Commencement of - When trial commences - The Supreme Court of Canada held that for the purposes of the discharge of a juror "in the course of a trial" under s. 573 of the Criminal Code a trial commences only when the accused has been put in charge of the jury - The court held that a juror discharged before that time should be replaced.

Statutes - Topic 2262

Interpretation - Presumptions and rules in aid - Presumption against abridgement of common law rights - Section 573 of the Criminal Code of Canada permits a juror to be discharged in the course of a trial and the trial may proceed without a full jury complement - The Supreme Court of Canada held that s. 573 should be narrowly construed, because it deprives the accused of his common law right to the unanimous verdict of 12 persons - See paragraph 29.

Cases Noticed:

R. v. Faderman, 1 Den. C.C. 572, consd. [paras. 9, 16].

Morin v. R. (1890), 18 S.C.R. 407, consd. [para. 10].

Giroux v. R. (1917), 56 S.C.R. 63, consd. [para. 11].

R. v. Dennis, [1960] S.C.R. 286, appld. [para. 12].

R. v. Riddle, [1980] 1 S.C.R. 380; 29 N.R. 91, consd. [para. 13].

R. v. Chabot, [1980] 2 S.C.R. 985; 34 N.R. 361, consd. [para. 14].

R. v. Petersen (1982), 44 N.R. 92, consd. [para. 15].

R. v. Craske, [1957] 2 All E.R. 772, consd. [para. 17].

Ibrahim's Case (1957), 42 Cr. App. R. 38, consd. [para. 18].

R. v. Bennet, [1960] 1 W.L.R. 102, consd. [para. 18].

R. v. Desai, [1973] Crim. L.R. 36, dist. [para. 19].

R. v. Walsh (1914), 23 C.C.C. 7, consd. [para. 22].

United States v. Curtis, 4 Mason 232, consd. [para. 22].

R. v. Miller (1958), 120 C.C.C. 335, consd. [para. 23].

Clement v. R. (1955), 22 C.R. 290, consd. [para. 23].

R. v. Embeit (1971), 3 C.C.C.(2d) 309, consd. [para. 24].

R. v. Hatton (1978), 39 C.C.C.(2d) 281, appld. [para. 25].

R. v. Blair and Karashowsky (1975), 25 C.C.C.(2d) 47, appld. [para. 25].

R. v. Parker (1981), 62 C.C.C.(2d) 161, consd. [para. 25].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 560(5), sect. 572(1) [para. 28]; sect. 573 [para. 1].

Authors and Works Noticed:

Blackstone's Commentaries [para. 22].

Counsel:

Francie Howard and Peter Leask, for the appellant Basarabas;

Clayton Ruby, Q.C., for the appellant Spek;

Leonard Doust and W.B. Smart, for the respondent.

This case was heard on November 24 and 25, 1982, at Ottawa, Ontario, before RITCHIE, DICKSON, BEETZ, McINTYRE, CHOUINARD, LAMER and WILSON, JJ.

On November 25, 1982, DICKSON, J., delivered the following judgment for the Supreme Court of Canada: