R. v. Turpin, Siddiqui and Clauzel, (1989) 96 N.R. 115 (SCC)

• Judge: Dickson, C.J.C., Beetz, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 16, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1989), 96 N.R. 115 (SCC);[1989] 1 SCR 1296;1989 CanLII 98 (SCC);48 CCC (3d) 8;69 CR (3d) 97;96 NR 115;JE 89-791;[1989] SCJ No 47 (QL);34 OAC 115;39 CRR 306

R. v. Turpin (1989), 96 N.R. 115 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Sharon Turpin and Latif Siddiqui (appellants) v. Her Majesty The Queen (respondent) and The Attorney General of Canada, The Attorney General of Manitoba and The Attorney General of British Columbia (intervenors)

(Nos. 20509; 20510)

Indexed As: R. v. Turpin, Siddiqui and Clauzel

Supreme Court of Canada

Dickson, C.J.C., Beetz, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

May 4, 1989.

Summary:

Turpin, Siddiqui and Clauzel were jointly charged with first degree murder. Section 11(f) of the Charter guaranteed the benefit of trial by jury for those charged with serious offences. Section 429 of the Criminal Code made trial by jury compulsory for certain offences, including murder. Section 430, however, allowed persons charged with indictable offences in Alberta to waive their right to a jury and be tried by judge alone. Although the accused were charged in Ontario, they moved to be tried by judge alone. The trial judge allowed their motion, declaring, inter alia, ss. 429 and 430 unconstitutional. The trial judge held that s. 11(f) of the Charter allowed the accused to waive their right to a jury and elect to be tried by judge alone. Alternatively, pursuant to s. 15 of the Charter, the accused were entitled to trial by judge alone as were those in Alberta. The trial therefore proceeded before judge alone. Turpin was acquitted and Siddiqui and Clauzel were convicted of second degree murder. The Crown appealed.

The Ontario Court of Appeal, in a decision reported 22 O.A.C. 261, allowed the appeal, set aside the verdicts and ordered a new trial for all three accused for first degree murder. The Court of Appeal held that requiring an accused charged with murder to be tried by judge and jury was not contrary to either s. 11(f) or 15 of the Charter. Turpin and Siddiqui appealed.

The Supreme Court of Canada dismissed the appeal. The court agreed that there was no denial of ss. 11(f) or 15 of the Charter by the mandatory jury provisions of the Code, but expressed different reasons than the Court of Appeal.

Civil Rights - Topic 1125

Discrimination - Criminal law - Right to a jury - The combined effect of ss. 427 and 429 of the Criminal Code precluded persons charged with certain offences from being tried by judge alone - Section 430, however, permitted those charged with the same offences in Alberta to be tried by judge alone - The Supreme Court of Canada held that the rights of persons outside Alberta to equality before the law were violated by the mandatory jury provisions of the Criminal Code, but not in such a way as to constitute discrimination within the meaning of s. 15 of the Charter - See paragraphs 36 to 52.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to a jury - The Charter, s. 11(f) guaranteed the benefit of trial by jury to those charged with serious offences - The Supreme Court of Canada discussed the nature and purpose of s. 11(f) - See paragraphs 13 to 35.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to a jury - The Charter, s. 11(f) guaranteed the benefit of trial by jury to those charged with serious offences - The Criminal Code, s. 429 made jury trials compulsory for certain serious offences, including murder - The Supreme Court of Canada held that there was an implied "right" or power in s. 11(f) for an accused to waive a jury trial - The court held, however, that the mandatory jury provisions of the Criminal Code could not be declared unconstitutional because of the implied "right" or power to waive the right to a jury, because the implied "right" or power did not create a constitutional right to a nonjury - See paragraphs 13 to 35.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to a jury - The Charter, s. 11(f) guaranteed the benefit of trial by judge to those charged with serious offences - The Criminal Code, s. 429 made jury trials compulsory for certain serious offences - The Supreme Court of Canada held that an accused could waive his s. 11(f) right to a jury, but once that right was waived, reliance on the Constitution ceased and the provisions of the Criminal Code (e.g., s. 429) governed - Thus, if an accused waived his right under s. 11(f), he was still faced with the mandatory jury provisions of the Criminal Code which did not violate his s. 11(f) rights.

Civil Rights - Topic 3138

Trials, due process, fundamental justice and fair hearings - Criminal proceedings - Right to a jury - The Charter, s. 11(f) guaranteed the benefit of trial by jury to those charged with serious offences - The Criminal Code, s. 429 made jury trials compulsory for certain serious offences - The Supreme Court of Canada held that the s. 11(f) right to a jury could be waived, however once the right was waived, reliance on the Constitution ceased and s. 429 of the Code governed - The court rejected the argument that s. 24(1) of the Charter could be used by those who wished to be tried by judge alone, notwithstanding the mandatory jury provisions of the Code - The court held further that there was no constitutional right to a nonjury trial so s. 429 could not be said to violate a constitutional right and therefore no s. 24 remedy was available - See paragraphs 32, 33.

Civil Rights - Topic 5642

Equality and protection of the law - Federal statute not proclaimed or applicable in all provinces - [See Civil Rights - Topic 1125 above].

Civil Rights - Topic 8309

Charter - Waiver of rights - The Supreme Court of Canada discussed the doctrine of waiver as it related to the waiver of statutory provisions and constitutional guarantees - The court held that the guarantee of the right to a trial by jury for those charged with serious offences (Charter, s. 11(f)), could be waived by an accused - See paragraphs 22 to 35 - The court stated, inter alia, that waiver does not confer rights, it repudiates them - See paragraph 34.

Civil Rights - Topic 8380.1

Charter - Denial of rights - Remedies - Conferring of rights - [See fourth Civil Rights - Topic 3138 above].

Civil Rights - Topic 8469

Charter - Interpretation - United States experience - The Charter, s. 11(f), guaranteed the benefit of a jury trial to those charged with serious offences - The Supreme Court of Canada stated that s. 11(f) was designed to protect the rights of individuals and s. 1 then permitted limits to be placed on those rights if such limits could be justified when the right of the individual was balanced against the collective interests of society - The court cautioned about reliance on interpretations of the United States and Australian Constitutions in interpreting s. 11(f) because the interests of the individual and society were included in the jury provisions of those constitutions, whereas s. 11(f) referred only to individual rights - See paragraphs 26 to 29.

Civil Rights - Topic 8472

Charter - Interpretation - Precedent - General - [See Civil Rights - Topic 8469 above].

Civil Rights - Topic 8474

Charter - Interpretation - Precedent - Bill of Rights cases - The Supreme Court of Canada cautioned that "great care must be taken not to import concepts and analytical processes derived from documents different in structure and content from the Charter" (e.g. The Canadian Bill of Rights) - See paragraph 37 - The court, therefore, declined to apply an earlier Supreme Court of Canada decision based on the Bill of Rights when called upon to interpret a similar provision of the Charter - See paragraph 39.

Civil Rights - Topic 8475

Charter - Interpretation - Regard to both official languages - The Charter, s. 11(f) guaranteed those charged with serious offences the benefit of trial by jury - In interpreting the English version of s. 11(f), the Supreme Court of Canada considered the wording of the French version and adopted the less onerous French text - See paragraph 20.

Civil Rights - Topic 8560

Charter - Interpretation - Particular phrases - The benefit of trial by jury - The Charter, s. 11(f), guaranteed those charged with serious offences the "benefit" of trial by jury - The Supreme Court of Canada discussed the meaning of the word "benefit" as it was used in s. 11(f) - See paragraphs 17 to 35.

Waiver - Topic 10

General principles - Waiver of statutory benefit - [See Civil Rights - Topic 8309 above].

Words and Phrases

Benefit - Section 11(f) of the Charter guaranteed those charged with serious offences the "benefit" of trial by jury - The Supreme Court of Canada discussed the meaning of the word "benefit" as it was used in s. 11(f) - See paragraphs 17 to 35.

Cases Noticed:

R. v. Ertel (1987), 20 O.A.C. 257; 35 C.C.C.(3d) 398 (C.A.), refd to. [paras. 11, 40].

R. v. Mills, [1986] 1 S.C.R. 863; 67 N.R. 241; 16 O.A.C. 81; 52 C.R.(3d) 1; 26 C.C.C.(3d) 481; 29 D.L.R.(4th) 161, refd to. [para. 16].

R. v. Martin (1987), 27 C.R.R. 193 (Ont. H.C.), refd to. [para. 18].

R. v. Bryant (1984), 6 O.A.C. 118; 16 C.C.C.(3d) 408, refd to. [para. 18].

Singer v. United States (1965), 380 U.S. 24, refd to. [paras. 18, 26, 27].

Adams v. U.S. Ex. rel McCann, 317 U.S. 239, refd to. [para. 19].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [paras. 19, 47].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, refd to. [para. 20].

R. v. Korponey, [1982] 1 S.C.R. 41; 44 N.R. 103, refd to. [paras. 22, 24].

R. v. Brown (1986), 19 A. Crim. R. 136, refd to. [paras. 22, 26, 28].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40; 25 C.C.C.(3d) 207; 50 C.R.(3d) 289; 26 D.L.R.(4th) 493, refd to. [para. 23].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481; 23 C.C.C.(3d) 289; 48 C.R.(3d) 289; 69 B.C.L.R. 145; 36 M.V.R. 240; 18 C.R.R. 30; 24 D.L.R.(4th) 536, refd to. [paras. 26, 37].

Chaussure Brown Inc. et al. v. Quebec (Procureur général) (1988), 90 N.R. 84; 19 Q.A.C. 69, refd to. [paras. 26, 37].

Andrews v. Law Society of British Columbia (1989), 91 N.R. 255, appld. [paras. 26, 37, 40, 43, 44, 45, 46, 50, 51].

Patton v. U.S. (1929), 281 U.S. 276, refd to. [para. 27].

R. v. Crate (1983), 57 A.R. 354; 7 C.C.C.(3d) 127, not folld. [paras. 31, 32].

R. v. Burnshine, [1975] 1 S.C.R. 693; 2 N.R. 53, dist. [paras. 39, 40].

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 41].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 47].

R. v. Hamilton (1986), 17 O.A.C. 241; 30 C.C.C.(3d) 257 (C.A.), not appld. [para. 49].

R. v. Frohman (1987), 19 O.A.C. 180; 35 C.C.C.(3d) 163 (C.A.), not appld. [para. 49].

R. v. Hardiman (1987), 78 N.S.R.(2d) 55; 186 A.P.R. 155; 35 C.C.C.(3d) 226 (C.A.), not appld. [para. 49].

Reference Re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577; 58 Sask.R. 161 (C.A.), not appld. [para. 49].

R. v. Sheldon S. (1988), 26 O.A.C. 285; 42 C.C.C.(3d) 41 (C.A.), not appld. [para. 49].

R. v. Emile (1988), 42 C.C.C.(3d) 408 (N.W.T.C.A.), not appld. [para. 49].

R. v. Tremblay (1985), 41 Sask.R. 49; 20 C.C.C.(3d) 454 (Q.B.), not appld. [para. 49].

R. v. Bailey (1985), 17 C.R.R. 1 (Y.T. S.C.), not appld. [para. 49].

R. v. Punch (1985), 22 C.C.C.(3d) 289 (N.W.T.S.C.), not appld. [para. 49].

Statutes Noticed:

Australian Constitution, sect. 80 [para. 26].

Canadian Bill of Rights, R.S.C. 1970, App. III, generally [para. 37].

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 5 [para. 1 et seq.]; sect. 11(f) [para. 5 et seq.].

Criminal Code, R.S.C. 1970, c. C-34, sect. 426, sect. 427, sect. 428, sect. 429, sect. 430 [para. 1 et seq.].

Criminal Law Amendment Act, S.C. 1985, c. 19, sect. 64 [para. 4].

United States Constitution, art. III, sect. 2 [para. 26]; Sixth Amendment [para. 26].

Authors and Works Noticed:

Black's Law Dictionary (5th Ed.), p. 1417 [para. 34].

Blackstone, William, Three Commentaries on the Law of England (5th Ed. 1778), p. 379 [para. 13].

Canada, Law Reform Commission, The Jury (1982), p. 5 [para. 14].

Canada, Law Reform Commission, The Jury in Criminal Trials (1980), pp. 5-17 [para. 14].

Hogg, Peter W., Constitutional Law of Canada (2nd Ed. 1985), pp. 774, 775 [para. 32].

Jowitt's Dictionary of English Law (2nd Ed.), vol. 2 [para. 34].

Lepofsky, M. David and Hart Schwartz, Case Comment in R. v. Ertel (1987), 67 Can. Bar Rev. 115, pp. 125-128 [para. 40].

Stephen, J., A History of the Criminal Law of England, pp. 572, 573 [para. 14].

Whitebread, Charles and Christopher Slobogin, Criminal Procedure (2nd Ed. 1986), p. 607 [para. 19].

Counsel:

Donald B. Bayne, for the appellant, Turpin;

Michael D. Edelson and Mark Ledwell, for the appellant, Siddiqui;

W.J. Blacklock and K.L. Campbell, for the respondent;

Ron Fainstein, Q.C., Irit Weiser and Michael Zigayer, for the Attorney General of Canada;

Robert Houston, Q.C., for the Attorney General of Manitoba;

Joseph J. Arvay, Q.C., for the Attorney General of British Columbia.

This appeal was heard on June 16, 1988, before Dickson, C.J.C., Beetz, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was delivered in both official languages by Wilson, J., on May 4, 1989.

Le Dain, J., took no part in the judgment.