R. v. Cyr (S.L.), 2014 SKQB 61

• Judge: Schwann, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 28, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 61;(2014), 439 Sask.R. 159 (QB)

R. v. Cyr (S.L.) (2014), 439 Sask.R. 159 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. MR.037

Stony Lee Cyr (applicant/accused) v. Her Majesty the Queen as Represented by the Attorney General of Saskatchewan (respondent)

(2012 Q.B.C. 4; 2014 SKQB 61)

Indexed As: R. v. Cyr (S.L.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Schwann, J.

February 28, 2014.

Summary:

The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4. He elected trial by judge and jury. In advance of the trial, the accused applied for (1) a finding that he had a right to a "Treaty 4 jury" based on the "assistance clause" in Treaty No. 4 and/or (2) a stay of proceedings under s. 24 of the Charter on the basis that his rights under ss. 11(d) and 11(f) of the Charter, including his right of "representativeness" in the jury process could not be met through the existing jury selection process enshrined in s. 7 of the Jury Act.

The Saskatchewan Court of Queen's Bench dismissed the application.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury and jury selection (Charter s. 11(f)) - The accused was a member of the Pasqua First Nation - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a stay of proceedings under s. 24 of the Charter on the basis that his rights under ss. 11(d) and 11(f) of the Charter, including his right of "representativeness" in the jury process could not be met through the existing jury selection process enshrined in s. 7 of the Jury Act - In dismissing the application, the Saskatchewan Court of Queen's Bench summarized the state of the law on the representativeness requirement of juries, prior to the decision in R. v. Kokopenace (C.) (2013 Ont. C.A.) - See paragraphs 99 to 114 - Kokopenace reaffirmed the principle that the right to a representative jury roll was not an absolute right - It did not entitle an accused person to a jury whose members shared racial, ethnic or social traits with the accused - Instead, the right related to the process of creating the jury roll and the legislative structures designed to achieve the twin objectives of impartiality and enhanced public confidence in the criminal justice system - See paragraphs 115 to 133.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury and jury selection (Charter s. 11(f)) - The accused was a member of the Pasqua First Nation - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a stay of proceedings under s. 24 of the Charter on the basis that his rights under ss. 11(d) and 11(f) of the Charter, including his right of "representativeness" in the jury process could not be met through the existing jury selection process enshrined in s. 7 of the Jury Act - The Saskatchewan Court of Queen's Bench dismissed the application - The court rejected the accused's argument, based on R. v. Kokopenace (C.) (2013 Ont. C.A.), that the representativeness of juries had to be assessed at each discrete stage of the jury selection process and that the actual composition of juries was proof that the system was constitutionally defective - This was an incorrect understanding of Kokopenace, which stood for the principle that the foundation for preparing the jury roll had to be structured to give rise to the possibility that the jury could include distinct perspectives from the broader community - Further, Kokopenace specifically rejected a "results based" analysis - The court in Kokopenace directed its focus to steps taken by the state in preparing the jury roll, examining the process from the perspectives of (i) composition of the lists; (ii) facilitating delivery; and (iii) encouraging responses to jury service notices, all in the context of the Ontario jury - The Saskatchewan legislative structure was fundamentally different - Moreover, nothing in Kokopenace suggested that those three perspectives amounted to independent grounds for a Charter challenge - See paragraphs 157 to 168.

Civil Rights - Topic 3138

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to jury and jury selection (Charter s. 11(f)) - The accused was a member of the Pasqua First Nation - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a stay of proceedings under s. 24 of the Charter on the basis that his rights under ss. 11(d) and 11(f) of the Charter, including his right of "representativeness" in the jury process could not be met through the existing jury selection process enshrined in s. 7 of the Jury Act - The Saskatchewan Court of Queen's Bench dismissed the application - Although the court rejected the accused's argument, based on R. v. Kokopenace (C.) (2013 Ont. C.A.), that the representativeness of juries had to be assessed at each discrete stage of the jury selection process, in order to take the accused's legal position "at its highest", the court applied the Kokopenace framework to the Saskatchewan legislative platform and the accused's evidence - The accused had not demonstrated how the Saskatchewan jury "list", which was drawn from the health registry, was deficient or how government officials had failed him in its preparation - No evidence established a delivery or response problem in relation to potential aboriginal jurors and, therefore, there was no basis on which to assess whether the government's response was reasonable - In Kokopenace, the root problem was a wholly inadequate list and the government's failure to address deficiencies and inaccuracies - Saskatchewan had a vastly different system - It did not suffer from the same root infirmity - Further, no evidence was adduced to show an inadequate aboriginal response to jury summons rate compared to the general population in this judicial centre - While an internal 2004 survey report had confirmed low jury participation rates among prospective aboriginal jurors, the government's response to the survey results did not, on its own, constitute a Charter violation - See paragraphs 169 to 202.

Civil Rights - Topic 3146

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Jury selection (Charter s. 7 or 11(d)) - [See all Civil Rights - Topic 3138 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General (incl. retrospectivity and retroactivity) - Prospective violations - The accused was a member of the Pasqua First Nation - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a stay of proceedings under s. 24 of the Charter on the basis that his rights under ss. 11(d) and 11(f) of the Charter, including his right of "representativeness" in the jury process could not be met through the existing jury selection process enshrined in s. 7 of the Jury Act - The Saskatchewan Court of Queen's Bench noted that the accused's application alleged a prospective Charter violation - On its face, the s. 24(1) remedy appeared to be restricted to violations in the past tense - However, jurisprudence interpreting s. 24(1) did not foreclose its application in the face of a prospective violation - Such an applicant would be held to a high standard - In essence, the applicant would have to provide a sufficient factual basis for the court to adjudicate the potential Charter issues that were raised - Here, the accused had to provide a sufficient factual foundation to establish that the jury selection process in the Judicial Centre of Regina was flawed to the extent that his right to a fair trial was likely to be infringed - If he could not establish that factual foundation, any determination on a prospective breach was premature - See paragraphs 149 to 156.

Civil Rights - Topic 8380.9

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - For anticipatory breach (incl. appointment of amicus curiae) - [See Civil Rights - Topic 8304 ].

Contracts - Topic 2065

Terms - Implied terms - To achieve business efficacy - [See fifth Indians, Inuit and Métis - Topic 4410 ].

Criminal Law - Topic 4310

Procedure - Jury - General - Empanelling - [See all Civil Rights - Topic 3138 ].

Criminal Law - Topic 4312

Procedure - Jury - General - Impartiality - [See all Civil Rights - Topic 3138 ].

Evidence - Topic 2200

Special modes of proof - Judicial notice - General principles - General - [See second Indians, Inuit and Métis - Topic 4410 ].

Evidence - Topic 2206

Special modes of proof - Judicial notice - General principles - Criminal cases - [See second Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - On an application by the aboriginal accused for relief under Treaty No. 4, the Saskatchewan Court of Queen's Bench reviewed the general principles of treaty interpretation - See paragraphs 37 to 45.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4 - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a finding that he had a right to a "Treaty 4 jury" (comprised of at least four and as many as six jurors who were Treaty No. 4 Indians) based on the "assistance clause" in Treaty No. 4 - The clause required Treaty No. 4 members to be "good and loyal subjects" and to assist in the administration of criminal justice - At issue was the accused's request that the court take judicial notice of certain facts regarding the recognition in North America of the right to a mixed jury - The Saskatchewan Court of Queen's Bench, applying the criteria set out in R. v. Find (K.) (2001 S.C.C.), accepted the "low end background fact" that mixed juries existed centuries ago in England - Further, mixed juries existed in Canada on a linguistic basis - However, the other "facts" put forward by the accused were more in the nature of inferences to be drawn from the above - These inferences were not sufficiently beyond controversy - Further, research into the legislative framework in existence at the time of the Treaty put the accused's line of reasoning into question - The common law right to a mixed jury had been expressly abolished by statute in Canada and the U.K. before the Treaty was signed - The right to a mixed jury on linguistic lines was not enshrined in the Criminal Code until 1892, after the Treaty was signed - This supported an interpretation of Treaty No. 4 that did not include a right to a mixed jury - See paragraphs 46 to 69.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4 - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a finding that he had a right to a "Treaty 4 jury" (comprised of at least four and as many as six jurors who were Treaty No. 4 Indians) based on the "assistance clause" in Treaty No. 4 - The clause required Treaty No. 4 members to be "good and loyal subjects" and to assist in the administration of criminal justice - The Saskatchewan Court of Queen's Bench dismissed the application - The court stated that the assistance clause had to be interpreted consistently with the direction in R. v. Marshall (D.J.), Jr. (1999 S.C.C.) that courts were to construe treaties generally with the goal of choosing the common intention of the parties that best reconciled both parties' interests at the time when the treaty was signed - The first step was an examination of the words of the treaty clause to determine their facial meaning - The actual wording of the assistance clause did not provide for a right to a mixed jury along either racial or linguistic lines - Further, it did not impose an obligation to participate in the jury process more generally - Even if the court accepted the proposition that the wording of the assistance clause was capable of an interpretation that obliged Treaty No. 4 Indians to assist in the trial process beyond the role of an accused person or in police enforcement, the court could not construe the facial meaning of the clause to comprise a right to be tried before a mixed jury - The accused's inferential interpretation was not one that was obvious from the facial meaning of the clause - See paragraphs 70 to 89.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4 - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a finding that he had a right to a "Treaty 4 jury" (comprised of at least four and as many as six jurors who were Treaty No. 4 Indians) based on the "assistance clause" in Treaty No. 4 - The clause required Treaty No. 4 members to be "good and loyal subjects" and to assist in the administration of criminal justice - The Saskatchewan Court of Queen's Bench dismissed the application - Having determined that the facial meaning of the words in the assistance clause did not comprise a right to be tried before a mixed jury, the court stated that the next step in the analysis was to consider the potential meaning of the clause against the treaty's historical and cultural background - While both parties to the treaty negotiations must have had views on how the administration of justice and criminal proceedings were to be shaped going forward, none of that evidence was before the court - A proper evidentiary foundation was particularly necessary where the court was asked to read in or imply terms or rights that were not obvious from the facial text of the treaty - See paragraphs 90 to 93.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4 - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a finding that he had a right to a "Treaty 4 jury" (comprised of at least four and as many as six jurors who were Treaty No. 4 Indians) based on the "assistance clause" in Treaty No. 4 - The clause required Treaty No. 4 members to be "good and loyal subjects" and to assist in the administration of criminal justice - The Saskatchewan Court of Queen's Bench dismissed the application - The court rejected the accused's assertion that, even though the words of Treaty No. 4 did not expressly call for mixed juries, this term should be implied as necessary to assure the contract's efficiency - The right to a mixed jury was not necessary to support the efficacy of the assistance clause - The assistance clause was framed in the nature of an obligation on the part of Treaty No. 4 Indians - It was not necessary to imply a right to a mixed jury into the clause in order to give it meaning - See paragraphs 94 and 95.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - The accused was a member of the Pasqua First Nation, which was an adherent to Treaty No. 4 - He elected trial by judge and jury - In advance of the trial, the accused applied, inter alia, for a finding that he had a right to a "Treaty 4 jury" (comprised of at least four and as many as six jurors who were Treaty No. 4 Indians) based on the "assistance clause" in Treaty No. 4 - The clause required Treaty No. 4 members to be "good and loyal subjects" and to assist in the administration of criminal justice - The Saskatchewan Court of Queen's Bench dismissed the application - The facial wording of the clause did not bear out a right to a mixed jury - However, Treaty No. 4, at the very least, was to be interpreted as imposing an obligation on the Crown to work with the signatories on criminal justice issues - The assistance clause obligated Treaty No. 4 Indians to assist the Crown in bringing their people to justice - This implied a reciprocal obligation on the Crown's part not to shut the First Nations out of the criminal justice process - However, there remained a wide gap between the principle that First Nations, as a group, had a right not to be shut out of the criminal justice process and the proposition that the assistance clause guaranteed individual aboriginal accused persons a right to a mixed jury - The accused had not bridged that gap - See paragraphs 96 to 98.

Indians, Inuit and Métis - Topic 4412

Treaties and proclamations - General - Evidence and proof - [See second and fourth Indians, Inuit and Métis - Topic 4410 ].

Cases Noticed:

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; 70 D.L.R.(4th) 427, refd to. [para. 37].

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15; 24 D.L.R.(4th) 390, refd to. [para. 38].

R. v. Taylor and Williams (1982), 34 O.R.(2d) 360; 62 C.C.C.(2d) 227 (C.A.), refd to. [para. 39].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201; 177 D.L.R.(4th) 513, appld. [para. 40].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321; 133 D.L.R.(4th) 324, refd to. [para. 41].

Nowegijick v. Minister of National Revenue et al., [1983] 1 S.C.R. 29; 46 N.R. 41; 144 D.L.R.(3d) 193, refd to. [para. 41].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 70 D.L.R.(4th) 385, refd to. [para. 42].

R. v. Peter-Paul (T.) (1998), 196 N.B.R.(2d) 292; 501 A.P.R. 292; 158 D.L.R.(4th) 231; 124 C.C.C.(3d) 1 (C.A.), refd to. [para. 42].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161; 153 D.L.R.(4th) 193, refd to. [para. 43].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 43].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, appld. [para. 46].

A. v. B., [2013] 1 S.C.R. 61; 439 N.R. 1; 2013 SCC 5, refd to. [para. 46].

Quebec (Attorney General) v. A. - see A. v. B.

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 47].

R. v. Veuillette (1919), 58 S.C.R. 414; 48 D.L.R. 158, refd to. [para. 52].

Robin v. Collège de Saint-Boniface, [1985] 1 W.W.R. 249; 30 Man.R.(2d) 50 (C.A.), refd to. [para. 52].

R. v. Yancey (1899), 2 C.C.C. 320 (Que. Q.B.), refd to. [para. 52].

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan (2001), 213 Sask.R. 1; 260 W.A.C. 1; 2001 SKCA 109, refd to. [para. 72].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2009), 389 N.R. 87; 2009 FCA 124, refd to. [para. 87].

R. v. Morris (I.) et al., [2006] 2 S.C.R. 915; 355 N.R. 86; 234 B.C.A.C. 1; 387 W.A.C. 1; 2006 SCC 59, refd to. [para. 93].

R. v. Horse, [1985] 1 W.W.R. 1; 34 Sask.R. 58 (C.A.), refd to. [para. 93].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 94].

R. v. Sherratt, [1991] 1 S.C.R. 509; 122 N.R. 241; 73 Man.R.(2d) 161; 3 W.A.C. 161, refd to. [para. 104].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 33 O.R.(3d) 65; 116 C.C.C.(3d) 1 (C.A.), refd to. [para. 107].

R. v. Ironeagle (H.) (2012), 403 Sask.R. 90; 2012 SKQB 324, refd to. [para. 111].

R. v. Yooya (S.), [1995] 2 W.W.R. 135; 126 Sask.R. 1 (Q.B.), refd to. [para. 111].

R. v. Kent, Sinclair and Gode (1986), 40 Man.R.(2d) 160; 27 C.C.C.(3d) 405 (C.A.), refd to. [para. 112].

R. v. Nepoose (1991), 128 A.R. 250; 85 Alta. L.R.(2d) 8 (Q.B.), refd to. [para. 112].

R. v. A.F. (1994), 30 C.R.(4th) 333 (Ont. C.J.), refd to. [para. 112].

R. v. Redhead (J.A.) (1995), 103 Man.R.(2d) 269; 99 C.C.C.(3d) 559 (Q.B.), refd to. [para. 112].

R. v. Lamirande (S.C.) et al. (2002), 163 Man.R.(2d) 163; 269 W.A.C. 163; 2002 MBCA 41, refd to. [para. 112].

R. v. Fowler (R.L.), [2005] B.C.T.C. 1874; 270 D.L.R.(4th) 233; 2005 BCSC 1874, refd to. [para. 112].

R. v. Teerhuis-Moar (S.) (2007), 217 Man.R.(2d) 270; 2007 MBQB 165, refd to. [para. 112].

R. v. Teerhuis-Moar (S.) (2010), 258 Man.R.(2d) 290; 499 W.A.C. 290; 2010 MBCA 102, refd to. [para. 112].

R. v. Born With A Tooth (M.), [1993] 7 W.W.R. 213; 139 A.R. 394 (Q.B.), refd to. [para. 113].

R. v. Kokopenace (C.) (2013), 306 O.A.C. 47; 115 O.R.(3d) 481; 2013 ONCA 389, consd. [para. 114].

R. v. Kennedy (2013), 118 O.R.(3d) 60; 2013 ONSC 6419, refd to. [para. 133].

United States of America v. Kwok, [2001] 1 S.C.R. 532; 267 N.R. 310; 145 O.A.C. 36; 2001 SCC 18, refd to. [para. 154].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201; 180 D.L.R.(4th) 1, refd to. [para. 155].

Statutes Noticed:

Jury Act, S.S. 1998, c. J-4.2, sect. 7 [para. 135].

Authors and Works Noticed:

Buller, Charles, and Wakefield, Edward, Report and Despatches of the Earl of Durham, Her Majesty's High Commission and Governor General of British North America (1839), pp. 35 to 37 [para. 52].

Eagle, Francis K., and Younge, Edward, A Collection of the Reports of Cases, The Statutes, and Ecclesiastical Laws Relating to Tithes (1826), vol. 3, pp. 757 to 770 [para. 52].

Forsyth, William, History of Trial by Jury (1982), generally [para. 52].

Halsbury's Laws of Canada, Constitutional Law: Charter of Rights (1st Ed. 2010), HCHR-117, generally [para. 153].

Iacobucci, Frank, Report on First Nations Representation on Ontario Juries (2013), para. 154 [para. 180].

Isaac, Thomas, Aboriginal Law: Commentary and Analysis (2012), pp. 109, 110 [para. 38]; 112 [para. 39].

Massachusetts (Commonwealth), Records of the Colony of New Plymouth, Court Orders (1856), vol. 5, pp. 163 to 168 [para. 52].

Massachusetts (Commonwealth), Records of the Colony of New Plymouth, Sossamon Case (1675), pp. 1668 to 1678 [para. 52].

McCabe, Timothy, The Law of Treaties Between the Crown and Aboriginal Peoples (2010), pp. 276, 277 [para. 45].

Pennsylvania (State), Minutes of the Provincial Council (1838), vol. 1, pp. 18 to 21 [para. 52].

United States of America, Statutes at Large, Treaties and Proclamations (1867-1869), generally [para. 52].

Counsel:

Bobby P. Hyrcan, Mariann Jasper and Christopher Funt, for the applicant/accused;

P. Mitch McAdam, Q.C., Macrina K. Badger, Theodore J.C. Litowski and Kelly L. Kaip, for the Crown.

This application was heard by Schwann, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 28, 2014.