R. v. Hubbert, (1977) 15 N.R. 139 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 25, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 15 N.R. 139 (SCC);15 OR (2d) 324;[1977] ACS no 4;[1977] SCJ No 4 (QL);15 NR 139;1977 CanLII 15 (SCC);[1977] 2 SCR 267;29 CCC (2d) 286

R. v. Hubbert (1977), 15 N.R. 139 (SCC)

MLB headnote and full text

R. v. Hubbert

Indexed As: R. v. Hubbert

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

March 25, 1977.

Summary:

This case arose out of a charge of murder. The accused pleaded not guilty and after a trial was found guilty. At the time of the crime the accused was on parole from a mental health institution. Before trial counsel for the accused proposed to the trial judge that each juror, before being sworn, be asked whether the juror could keep an open mind respecting the accused's innocence or guilt if the evidence disclosed that the accused was on parole from a mental health institution. The trial judge rejected the proposal.

On appeal to the Ontario Court of Appeal the appeal was dismissed and the conviction of the accused was affirmed. The Ontario Court of Appeal stated that it is not a ground for challenge for cause that a juror, impartial when sworn, may become affected by the nature of the evidence he will hear during the trial - see paragraphs 1 and 48 to 56.

On appeal to the Supreme Court of Canada the appeal was dismissed and the judgment of the Ontario Court of Appeal was affirmed.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The accused was charged with murder - At the time of the crime the accused was on parole from a mental health institution - Counsel for the accused proposed to the trial judge that each juror, before being sworn, be asked whether the juror could keep an open mind respecting the accused's innocence or guilt if the evidence disclosed that the accused was on parole from a mental health institution - The trial judge rejected the proposal and the accused was found guilty - The Supreme Court of Canada affirmed the judgment of the Ontario Court of Appeal which approved the trial judge's rejection of the accused's proposed questioning respecting cause to challenge a juror - The Ontario Court of Appeal stated that it is not a ground for challenge for cause that a juror, impartial when sworn, may become affected by the nature of the evidence he will hear during the trial - See paragraphs 1 and 48 to 56.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The Supreme Court of Canada approved procedures outlined by the Ontario Court of Appeal for dealing with challenges of jurors for cause - See paragraphs 2 and 33 to 47.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - The Ontario Court of Appeal stated that a juror who has read about a criminal charge, and holds a tentative opinion about it, is not thereby partial and incapable of giving a true verdict - See paragraphs 31 and 32.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - Criminal Code, s. 567 - The Ontario Court of Appeal stated the purpose of challenges of jurors for cause - See paragraphs 22 to 26.

Criminal Law - Topic 4313

Procedure - Jury - Questioning of prospective jurors - The Ontario Court of Appeal stated that the questioning of prospective jurors in a criminal trial is not permitted in Ontario unless the juror has been challenged for cause - See paragraph 25.

Words and Phrases

Indifferent - The Supreme Court of Canada discussed the meaning of the word "indifferent" as found in s. 567 of the Criminal Code of Canada - See paragraphs 27 and 28.

Cases Noticed:

R. v. Peter Cook (1696), 13 State Trials 34, refd to. [para. 15].

R. v. Makow (1974), 28 C.R.N.S. 87, refd to. [para. 15].

R. v. Elliott, [1973] 3 O.R. 475, 12 C.C.(2d) 482, 22 C.R.N.S. 142, refd to. [para. 15].

Rose v. The Queen, 22 C.R.N.S. 46, refd to. [para. 15].

R. v. Kray and others (1969), 52 Cr. App. R. 412, folld. [para. 23].

R. v. Ward, [1972] 3 O.R. 665, 8 C.C.C.(2d) 515, folld. [para. 26].

Practice Direction (Jurors), [1973] 1 W.L.R. 134, 1 All E.R. 240, refd to. [para. 27].

R. v. Lesso and Jackson (1952), 23 C.R.N.S. 179, folld. [para. 44].

Anonymous, Lilly 555, 91 E.R. 141, refd to. [Appendix].

R. v. O'Coigly, O'Connor et al. (1798), 26 State Tr. 1191 at 1126 et seq., refd to. [Appendix].

R. v. Edmonds et al. (1821), 4 B. & Ald. 471, 1 State Tr.(N.S.) 786, 106 E.R. 1009, refd to. [Appendix].

R. v. Swain et al. (1838), 2 Lew. C.C. 118, 168 E.R. 1098, refd to. [Appendix].

R. v. Sawdon (1838), 2 Lew. C.C. 118, 168 E.R. 1099, refd to. [Appendix].

R. v. Geach (1840), 9 C. & P. 499, 173 E.R. 929, refd to. [Appendix].

R. v. Hughes (1842), 2 Craw. & D. 396, refd to. [Appendix].

R. v. Stewart (1845), 1 Cox C.C. 174, refd to. [Appendix].

R. v. Cuffey, Lacey et al. (1848), 3 Cox C.C. 517, 7 State Tr.(N.S.) 467, refd to. [Appendix].

R. v. Martin (1848), 6 State Tr.(N.S.) 925, refd to. [Appendix].

R. v. Dowling (1849), 7 State Tr.(N.S.) 382, refd to. [Appendix].

R. v. Chandler (1964), 48 Cr. App. Rep. 143, refd to. [Appendix].

R. v. Broderick, [1970] Crim. L.R. 155, refd to. [Appendix].

M. v. H.M. Advocate, [1975] Crim. L.R. 108, refd to. [Appendix].

R. v. Chasson (1876), 16 N.B.R. 546, refd to. [Appendix].

R. v. Mah Hung (1912), 20 C.C.C. 40 (B.C., C.A.), refd to. [Appendix].

R. v. Cook (1914), 22 C.C.C. 241 (N.S.S.C.), refd to. [Appendix].

McLean v. The King, [1933] S.C.R. 688 (on appeal from App. Div., Alta.), refd to. [Appendix].

Richard v. The Queen (1957), 31 C.R. 340 (N.B.S.C.), refd to. [Appendix].

Polamba v. The Queen, Feb. 19, 1975 (Que. C.A.), refd to. [Appendix].

Whelan v. The Queen (1868), 28 U.C.Q.B. 2, refd to. [Appendix].

R. v. Harri (1922), 51 O.L.R. 606, refd to. [Appendix].

R. v. Wright, McDermott and Feeley (1961), 23 C.R.N.S. 75, refd to. [Appendix].

R. v. McCorkell (1962), 27 C.R.N.S. 155, refd to. [Appendix].

R. v. Jones; R. v. Daley (No. 2), 22 C.R.N.S. 156, refd to. [Appendix].

R. v. McClure, Feist, Maracle, Major and McEwan, 23 C.R.N.S. 19, refd to. [Appendix].

R. v. McAuslane, Geller et al., 23 C.R.N.S. 6, refd to. [Appendix].

R. v. MacFarlane, 3 O.R.(2d) 467, refd to. [Appendix].

R. v. Heddleston, 27 C.R.N.S. 113, refd to. [Appendix].

R. v. McLean, March 17, 1975, refd to. [Appendix].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 567, sect. 568 [para. 14].

Authors and Works Noticed:

Chitty's Criminal Law, 2nd Ed. (1826), Vol. 1, pp. 502, 539 [See Appendix].

Vannini, I.A., Challenges to a Jury, Criminal Reports, new series, Vol. 23, p. 57 [See Appendix].

Counsel:

John F. Hamilton, Q.C., and R.G. Thomas, Q.C., for the appellant;

R.M. McLeod, for the respondent.

This appeal was heard by LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., at Ottawa, Ontario, on March 24 and 25, 1977. The judgment of the Supreme Court of Canada was delivered orally by LASKIN, C.J.C., on March 25, 1977.