R. v. Byers (F.J.), (1987) 66 Nfld. & P.E.I.R. 212 (PEISC)

• Judge: McQuaid, J.
• Case Date: June 02, 1987
• Jurisdiction: Prince Edward Island
• Citations: (1987), 66 Nfld. & P.E.I.R. 212 (PEISC)

R. v. Byers (F.J.) (1987), 66 Nfld. & P.E.I.R. 212 (PEISC);

    204 A.P.R. 212

MLB headnote and full text

Her Majesty the Queen v. Frank John Byers

(No. GDC-7132)

Indexed As: R. v. Byers (F.J.)

Prince Edward Island Supreme Court

McQuaid, J.

June 3, 1987.

Summary:

The accused was charged with a number of offences, none requiring a sentence of more than five years' imprisonment. Pursuant to s. 563 of the Criminal Code, the Crown was entitled to challenge four jurors peremptorily and stand aside up to 48 jurors. Section 562(3) of the Code allowed the accused to challenge only four jurors peremptorily. The accused challenged the constitutionality of s. 563 on the ground that it denied the accused equal benefit of the law contrary to s. 15 of the Charter.

The Prince Edward Island Supreme Court held that the Code provisions under s. 563(1) were unconstitutional because they denied the accused the right to equal benefit of the law as guaranteed by s. 15 of the Charter. Pursuant to s. 52 of the Constitution Act, the court adopted an interpretation of the section which was not inconsistent with the Charter and which placed each party on an equal footing.

Civil Rights - Topic 5511

Equality and protection of the law - Equal benefit of the law - An accused alleged a denial of equal protection and benefit of the law (as required by s. 15 of the Charter) because of benefits enjoyed by the Crown and not enjoyed by the accused in the jury selection process - The Prince Edward Island Supreme Court held that the benefits granted to the Crown by ss. 562 and 563 of the Criminal Code contravened s. 15 of the Charter.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Prince Edward Island Supreme Court discussed the interpretation of s. 1 of the Charter - The court stated that the section contains two aspects: "a) it constitutionally guarantees certain rights and freedoms, and b) it establishes the criteria against which limits applicable to those rights and freedoms are to be measured" - See paragraphs 9 to 14.

Civil Rights - Topic 8372

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Scope of - An accused alleged a denial of equal protection and benefit of the law (as required by s. 15 of the Charter) because of benefits enjoyed by the Crown and not enjoyed by the accused in the jury selection process - The Prince Edward Island Supreme Court held that the benefits granted to the Crown by ss. 562 and 563 of the Criminal Code contravened s. 15 of the Charter - The court however reworded ss. 562 and 563 pursuant to s. 52(1) of the Constitution Act to adopt an interpretation which was not inconsistent with the Charter and which placed each party on an equal footing.

Civil Rights - Topic 8372

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Scope of - The Prince Edward Island Supreme Court stated that s. 24(1) of the Charter was not intended to grant jurisdiction to a court to amend legislation or introduce new legislation at its discretion and, in effect, rewrite the legislation - See paragraph 29.

Criminal Law - Topic 4315

Procedure - Jury - Challenges - General - [See Civil Rights - Topic 5511 above].

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 26 D.L.R.(4th) 200; 53 O.R.(2d) 719n; 50 C.R.(3d) 1, consd. [para. 9].

R. v. Varga (1985), 7 O.A.C. 350; 44 C.R.(3d) 377; 18 C.C.C.(3d) 281; 13 C.R.R. 351, consd. [para. 15].

R. v. Cecchini, 48 C.R.(3d) 145; 22 C.C.C.(3d) 323, consd. [para. 19].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97; 40 C.R.(3d) 1; 9 D.L.R.(4th) 542; 10 C.R.R. 275; 46 O.R.(2d) 80, consd. [para. 21].

R. v. Foote (1985), 65 N.B.R.(2d) 444; 167 A.P.R. 444, consd. [para. 23].

R. v. Johnstone et al. (1986), 72 N.S.R.(2d) 76; 173 A.P.R. 76, consd. [para. 24].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 4, 5, 9, 10, 14, 29]; sect. 15 [paras. 2, 6, 24, 34, 36]; sect. 24(1) [paras. 4, 5, 16, 19, 29].

Constitution Act, 1982, sect. 52(1) [paras. 4, 18, 23, 30, 35].

Criminal Code, R.S.C. 1970, c. C-34, sect. 562 [para. 31]; sect. 563 [paras. 1, 4, 9, 15, 24, 31, 33]; sect. 563(1) [paras. 31, 36, 38, 41]; sect. 563(2) [paras. 31, 39]; sect. 563(3) [paras. 3, 39].

Counsel:

Richard B. Hubley, for the Crown;

Mark Ledwell, for the accused.

This case was heard on June 2, 1987, before McQuaid, J., of the Prince Edward Island Supreme Court, who delivered the following oral judgment on June 3, 1987: