R. v. Bryant, (1984) 6 O.A.C. 118 (CA)

• Judge: Houlden, Arnup and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 29, 1984
• Jurisdiction: Ontario
• Citations: (1984), 6 O.A.C. 118 (CA)

R. v. Bryant (1984), 6 O.A.C. 118 (CA)

MLB headnote and full text

R. v. Bryant

Indexed As: R. v. Bryant

Ontario Court of Appeal

Houlden, Arnup and Blair, JJ.A.

November 16, 1984.

Summary:

The accused was charged with forcible confinement, theft over $200., indecent assault and rape, and elected trial by judge and jury. He was committed for trial, and released on bail, but failed to appear for trial. Under s. 526.1 of the Criminal Code of Canada, the accused was then deemed to have reelected to be tried by judge alone. At the commencement of his trial before a single judge, the accused applied for an order directing that he be tried by a jury. The accused relied on the right to a jury guaranteed in s. 11(f) of the Canadian Charter of Rights and Freedoms. The Ontario High Court, in a decision unreported in this series of reports, dismissed the application.

The accused was subsequently convicted of rape, forcible confinement and indecent assault and sentenced to seven years' imprisonment for rape and one year each concurrent for the other offences. The accused appealed against both the convictions and sentences.

The Ontario Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - An accused elected trial by jury but failed to appear for trial - Section 526.1(1) of the Criminal Code of Canada took away the accused's right to a jury trial, because he had no legitimate excuse for not appearing - Under s. 526.1(2) the accused was deemed for procedural purposes to have elected to be tried by a judge alone - The Ontario Court of Appeal held that s. 526.1 prima facie infringed the accused's right to a jury trial guaranteed in s. 11(f) of the Charter of Rights - The court held that the denial was not justified as a reasonable limit under s. 1 of the Charter - See paragraphs 5 to 9, 31 to 39, 43 to 54, 57 to 60.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to jury - The Ontario Court of Appeal discussed the history and significance of the right to trial by jury in criminal cases in England, the United States and Canada - See paragraphs 16 to 30.

Civil Rights - Topic 4943

Presumption of innocence - Evidence and proof - Burden of proof in criminal cases - Under s. 526.1 of the Criminal Code of Canada, an accused who failed to appear before his jury trial had the onus of establishing a legitimate excuse, or else lost his right to a jury - The Ontario Court of Appeal held that this requirement did not contravene the Charter of Rights, because such an onus was rationally open to the accused to discharge and cast no burden on him to disprove the offence with which he was charged or his implication in it - See paragraph 32.

Civil Rights - Topic 8309

Canadian Charter of Rights and Freedoms - Waiver of rights - The Ontario Court of Appeal held that the failure of an accused to appear for his trial before a jury did not constitute a waiver of his right to a jury trial - See paragraphs 7 to 8, 44, 57.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - An accused elected trial by jury but failed to appear for trial - Section 526.1(1) of the Criminal Code of Canada took away the accused's right to a jury trial, because he had no legitimate excuse for not appearing - Under s. 526.1(2) the accused was deemed for procedural purposes to have elected to be tried by a judge alone - The Ontario Court of Appeal held that s. 526.1 prima facie infringed the accused's right to a jury trial in s. 11(f) of the Charter of Rights - The court held that the denial was not justified as a reasonable limit under s. 1 of the Charter - See paragraphs 5 to 9, 31 to 39, 43 to 54, 57 to 60.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Ontario Court of Appeal stated that "the standard by which the reasonableness of the limitation of the Charter right must be assessed is that the court must be satisfied that a valid legal, social or other objective is served by the limitation of the right and that the limitation is restricted to that which is necessary for the attainment of the desired objective" - See paragraph 10.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Ontario Court of Appeal referred to the methods by which the Crown may attempt to meet the burden of establishing that a denial of a Charter right is justified under s. 1 of the Charter - See paragraphs 7, 46, 58 to 59.

Statutes - Topic 1449

Interpretation - Construction where meaning is not plain - Aids or methods to determine meaning - Legislative history - General - The Ontario Court of Appeal ascertained the purpose of s. 526.1 of the Criminal Code of Canada by reviewing its legislative history - See paragraphs 14 to 15.

Cases Noticed:

Re Federal Republic of Germany and Rauca (1983), 41 O.R.(2d) 225; 4 C.C.C.(3d) 385 (C.A.), refd to. [para. 5].

Re Southam Inc. and R. (No. 1) (1983), 41 O.R.(2d) 113; 3 C.C.C.(3d) 515 (C.A.), refd to. [para. 5].

R. v. Allan (1982), 2 C.R.R. 46 (Alta. Q.B.), not appld. [para. 7].

R. v. Gladue (1982), 2 C.C.C.(3d) 175 (B.C.S.C.), not appld. [para. 7].

R. v. Ramirez, 9 W.C.B. 107 (Alta. Q.B.), not appld. [para. 7].

R. v. Crate (1983), 57 A.R. 354; 7 C.C.C.(3d) 127; 6 C.R.R. 353 (Alta. C.A.), not appld. [para. 7].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103; 65 C.C.C.(2d) 65, refd to. [para. 8].

Quebec Association of Protestant School Boards et al. v. Attorney-General of Quebec et al. (No. 2) (1982), 140 D.L.R.(3d) 33; 3 C.R.R. 114; aff'd 1 D.L.R.(4th) 573 (Que. C.A.), affd. 54 N.R. 196 (S.C.C.), refd to. [para. 10].

R. v. MacKay, [1980] 2 S.C.R. 370; 33 N.R. 1; 54 C.C.C.(2d) 129, refd to. [para. 10].

Re Voisard and R. (1978), 43 C.C.C.(2d) 570 (Que. C.A.), refd to. [para. 13].

R. v. Bray (1983), 40 O.R.(2d) 766; 2 C.C.C.(3d) 325, refd to. [para. 14].

Bennet v. Hundred of Hartford, [1650] Style 233, refd to. [para. 18].

Bushell's Case, [1670] Vaughan's Rep. 135; 124 E.R. 1006, refd to. [para. 19].

Duncan v. The State of Louisiana (1968), 391 U.S. 145 (U.S.S.C.), refd to. [para. 24].

Williams v. Florida (1970), 391 U.S. 78, refd to. [para. 25].

Apodaca et al. v. Oregon (1972), 406 U.S. 404, refd to. [para. 25].

Ex Parte Quirin (1942), 317 U.S. 1, refd to. [para. 25].

R. v. Oakes (1983), 40 O.R.(2d) 660; 2 C.C.C.(3d) 339, refd to. [para. 32].

R. v. Carson (1983), 41 O.R.(2d) 420; 4 C.C.C.(3d) 476, dist. [para. 37].

Von Moltko v. Gillies, 332 U.S. 72324, refd to. [para. 44].

Schneckloth v. Bustamonte, 412 U.S. 218, refd to. [para. 44].

R. v. Heaslip et al. (1983), 1 O.A.C. 81; 9 C.C.C.(3d) 480, refd to. [para. 44].

R. v. Petrovic (1984), 4 O.A.C. 29; 47 O.R.(2d) 97, refd to. [para. 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 5, 10-12, 37-39, 58, 60]; sect. 11(f) [paras. 3, 7, 25, 30, 39, 47, 50-51].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 133(2), sect. 133(3) [para. 36]; sect. 427, sect. 430, sect. 483, sect. 484, sect. 722(1) [para. 29]; sect. 429 [paras. 29-30]; sect. 526.1 [paras. 4, 6-7, 10, 12-15, 32-36, 43, 45, 50-51, 54, 57, 59-60]; sect. 526.1(1) [paras. 6, 43, 46]; sect. 526.1(2) [paras. 6, 8, 44, 47]; sect. 560, sect. 561 [para. 30].

Criminal Law Amendment Act 1975, S.C. 1974-75-76, c. 93, sect. 526.1 [para. 14].

Bail Reform Act, S.C. 1970-71-72, c. 37 [paras. 15, 35, 39, 45].

Declaration of Rights 1689 (Imp.), 1 Wm. & M. 2, c. 2 [para. 19].

Criminal Justice Act 1967 (Imp.), c. 80, sect. 13 [para. 21].

Constitution of the United States of America, Sixth Amendment [paras. 23, 25]; Fourteenth Amendment [para. 25].

Royal Proclamation of 1763 [para. 27].

Quebec Act 1774 (Imp.), 14 Geo. 3, c. 38 [para. 27].

Constitutional Act 1791, 31 Geo. 3, c. 31 [para. 27].

Constitution Act, 1982, sect. 52(1) [paras. 39, 54, 60].

Authors and Works Noticed:

Trial by Jury, Hamlyn Lecture (1966), pp. 4 [para. 16]; 164 [para. 20].

Holdsworth, A History of English Law (5th Ed.), vol. 1, pp. 312-350 [para. 17]; 313 [para. 17]; 336 [para. 18].

Blackstone's Commentaries on the Laws of England (1897), Book 4, pp. 349-350 [paras. 20, 31].

Archbold, Pleading, Evidence and Practice in Criminal Cases (40th Ed.), pp. 5-23 [para. 21].

Moore, The Jury: Tool of Kings, Palladium of Liberty (1974) [para. 22].

Whyte and Lederman, Canadian Constitutional Law (2nd Ed. 1977), pp. 2-7 - 2-9 [para. 26].

Edwards, The Advent of English (not French) Criminal Law and Procedure into Canada - a Close Call in 1774 (1984), 26 Crim. L.Q. 464 [para. 27].

Kennedy, W.P.M., Statutes, Treaties and Documents of the Canadian Constitution (2nd Ed. 1930), pp. 94-135, 172-174 [para. 27].

Taschereau, The Criminal Statute Law of the Dominion of Canada (1888), pp. 756, 805-806, 844, 877 [para. 28].

Counsel:

James D. Harbic, for the appellant;

Damien R. Frost, for the respondent.

This appeal was heard before Houlden, Arnup and Blair, JJ.A., of the Ontario Court of Appeal on March 29, 1984. The decision of the Court of Appeal was delivered on November 16, 1984, when the following opinions were filed:

Blair, J.A. - see paragraphs 1 to 41;

Arnup, J.A. - see paragraphs 42 to 55;

Houlden, J.A. - see paragraphs 56 to 60.