R. v. Sherratt, (1991) 122 N.R. 241 (SCC)

• Judge: L'Heureux-Dubé, Sopinka, Gonthier, Cory and Stevenson, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 21, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 122 N.R. 241 (SCC);3 CR (4th) 129;JE 91-517;[1991] 1 SCR 509;12 WCB (2d) 517;73 Man R (2d) 161;1991 CanLII 86 (SCC);63 CCC (3d) 193;[1991] SCJ No 21 (QL);122 NR 241

R. v. Sherratt (1991), 122 N.R. 241 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Anthony Robert Sherratt (appellant) v. Her Majesty The Queen (respondent)

(21501)

Indexed As: R. v. Sherratt

Supreme Court of Canada

L'Heureux-Dubé, Sopinka, Gonthier, Cory and Stevenson, JJ.

March 21, 1991.

Summary:

The accused was convicted of second degree murder following a jury trial. The accused appealed, submitting that, inter alia, the trial judge erred in prescreening potential jurors for partiality. The accused was refused a request to put a list of ques­tions to each member of the jury panel to disclose potential partiality based on pre­trial publicity.

The Manitoba Court of Appeal, O'Sulli­van, J.A., dissenting, in a judgment report­ed 58 Man.R.(2d) 145, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The court agreed in the result with the Court of Appeal, that challenge for cause on the basis of pretrial publicity was groundless.

Criminal Law - Topic 4313

Procedure - Jury - Questioning prospec­tive jurors - An accused charged with murder sought to question all prospective jurors respecting partiality because of pretrial publicity (9-10 months before) - The trial judge rejected the request and prescreened the jurors for partiality on his own - The Supreme Court of Canada stated that the trial judge erred procedurally, but arrived at the correct result - The issue was whether the pre­trial publicity "could potentially have the effect of destroying the prospective ju­ror's indifference between the Crown and the accused" - The court stated that there was no realistic potential for partiality based on the pretrial publicity - See paragraphs 64 to 67.

Criminal Law - Topic 4313

Procedure - Jury - Questioning prospec­tive jurors - An accused charged with murder sought to question all prospective jurors respecting partiality based on pre­trial publicity 9 to 10 months before - The trial judge rejected the procedure and conducted his own prescreening of jurors for partiality - The Supreme Court of Canada stated that a trial judge should undertake such prescreening only in consensual, uncontested matters of par­tiality (e.g. to screen out jurors related to witnesses, the accused, etc.) - The procedure could not be used where the chal­lenge for cause was grounded on some pertinent allegation - The court stated that the trial judge could not take over the challenge process by deciding con­troversial questions of partiality - See paragraphs 60 to 66.

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - [See both Criminal Law - Topic 4313].

Criminal Law - Topic 4316

Procedure - Jury - Challenges for cause - Section 567(1)(b) of the Crimi­nal Code entitled an accused to challenge a prospective juror on the ground of partiality - The Supreme Court of Canada stated that mere media dissemi­nation of the facts of a case was nor­mally not sufficient to ground a chal­lenge for cause for partiality - The court stated that "the trial judge must be given an adequate explanation for the challenge outside the mere words of the section. Questioning in this phase should not become a 'fishing expedition'" - See paragraphs 41 to 42.

Criminal Law - Topic 4320

Procedure - Jury - Peremptory chal­lenges - The Supreme Court of Canada discussed the justification for peremptory challenges - See paragraph 57.

Cases Noticed:

R. v. Hubbert (1975), 29 C.C.C.(2d) 279 (Ont. C.A.), affd. [1977] 2 S.C.R. 267; 15 N.R. 139, consd. [para. 11].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, consd. [para. 12].

R. v. Guérin and Pimparé (1984), 13 C.C.C.(3d) 231, consd. [para. 13].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), consd. [para. 49].

R. v. Kray (1969), 53 Cr. App. R. 412, refd to. [para. 63].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 11(d) [para. 35]; sect. 11(f) [para. 33].

Constitution Act, 1867, sect. 91(27), sect. 92(14) [para. 17].

Criminal Code, R.S.C. 1970, c. C-34, sect. 554(1), sect. 562, sect. 563, sect. 567, sect. 569 [para. 5].

Criminal Code, R.S.C. 1985, c. C-46, sect. 626 [para. 17]; sect. 633 [para. 20]; sect. 634(3) [para. 22]; sect. 638(1)(b) [para. 5]; sect. 640 [para. 23].

Authors and Works Noticed:

Baker, John H., An Introduction to En­glish Legal History (2nd Ed. 1979), pp. 64-66 [para. 27].

Blackstone, Commentaries on the Laws of England (1979), Book 4, pp. 349-359 [para. 32].

Blake, N., The Case for the Jury, in The Jury Under Attack (Findlay and Duff, eds. 1980), p. 142 [para. 31].

Canada, Law Reform Commission, The Jury in Criminal Trials, Working Paper 27 (1980), generally [paras. 29, 56].

Devlin, Patrick, Trial by Jury (1965), p. 67 [para. 27].

England, Report of the Departmental Committee on Jury Service, Command Paper No. 2627, generally [para. 31].

Gold, Alan, The Jury in the Criminal Trial, in Criminal Procedure in Canada  (1982), generally [para. 19].

Moore, Lloyd E., The Jury, Tool of Kings, Palladium of Liberty (1973), pp. 14 [para. 26]; 56 [para. 27]; 231 [para. 30].

Salhany, Roger E., Canadian Criminal Procedure (5th Ed. 1968), generally [para. 19].

Shulman and Meyers, Jury Selection in Studies on the Jury, Law Reform Commission (1979), pp. 395 [para. 17]; 408 [para. 34]; 423 [para. 27]; 425-428 [para. 28].

Vidmar and Melnitzer, Juror Prejudice: An Empirical Study of a Challenge for Cause (1984), 22 Osgoode Hall L.J. 487, generally [para. 60].

Counsel:

G.G. Greg Brodsky, Q.C., for the appellant;

Gregg Lawlor, for the respondent.

Solicitors of Record:

Walsh, Micay and Co., Winnipeg, Mani­toba, for the appellant;

Department of the Attorney General, Winnipeg, Manitoba, for the respondent.

This appeal was heard on December 13, 1990, before L'Heureux-Dubé, Sopinka, Gonthier, Cory and Stevenson, JJ., of the Supreme Court of Canada.

On March 21, 1991, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

L'Heureux-Dubé, J. (Sopinka, Gonthier  and Cory, JJ., concurring) - see paragraphs 1 to 67;

Stevenson, J. - see paragraphs 68 to 74.