Paragraph 11(f) – Trial by jury

Provision

11. Any person charged with an offence has the right:

  1. except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

Similar provisions

There is no similar provision to paragraph 11(f) in the Canadian Bill of Rights.

See the following international, regional and comparative law instruments that are not legally binding on Canada but include Similar provisions: The Sixth Amendment to the Constitution of the United States of America guarantees the right to an impartial jury “in all criminal prosecutions”, though the jurisprudence has developed some exceptions.

Purpose

The purpose of paragraph 11(f) is to entrench the right to a trial by jury for the most serious offences (R. v. Peers, 2015 ABCA 407 at paragraph 6; appeal dismissed by the S.C.C. for the reasons of the majority of the Alberta Court of Appeal 2017 SCC 13). The historical significance of the right to a trial by jury was that it protected accused persons in times past when the monarch could exert undue influence on proceedings being conducted in his own courts (R. v. Lee, [1989] 2 S.C.R. 1384 at paragraph 29). The jury has often been praised as a bulwark of individual liberty (R. v. Turpin, [1989] 1 S.C.R. 1296 at paragraph 11), because culpability was believed to be more fairly determined by the accused’s “equals and neighbours, indifferently chosen, and superior to all suspicion” (R. v. Kokopenace, [2015] 2 S.C.R. 398 at paragraph 144).

More generally, the jury also functions as a public institution which benefits society through its educative and legitimizing roles. A trial by jury interests large numbers of people in the administration of justice and makes them responsible for it (Turpin at paragraph 12). The jury acts as a vehicle of public education and lends the weight of community standards to trial verdicts (Lee at paragraph 27). The jury is also representative, in the sense that it acts on society’s behalf (Kokopenace at paragraph 133).

Analysis

1. "Charged with an offence"

See the discussion under the general section 11 heading.

2. "Benefit of trial by jury"

According to the Ontario Court of Appeal, the phrase "benefit of trial by jury" refers to a trial in which the jury acts as fact-finder and is the ultimate arbiter of the guilt or innocence of the accused. The essence of the jury’s role rests in its duty to apply the law as provided by the judge with the facts it finds to produce a true verdict. Derogation from the fact-finding function of the jury would erode the accused’s right to the benefit of a trial by jury (R. v. Finta, [1992] O.J. No. 823 (C.A.), appeal and cross-appeal dismissed, [1994] 1 S.C.R. 701. See also R. v. Krieger, [2006] 2 S.C.R. 501, 2006 SCC 47).

3. Waiver

(i) Accused not to be compelled to take advantage of right

Where a jury trial is not a benefit from the accused’s perspective, the accused may waive his or her right to a jury trial. An accused cannot be compelled to take advantage of a right intended for his or her benefit, notwithstanding that there may be a substantial public interest in a jury trial (Turpin, supra).

(ii) Does not yield a right to trial by judge alone

A waiver of the right to a jury trial in paragraph 11(f) does not create a corresponding right to a trial by judge alone. When an accused person waives his or her paragraph 11(f) Charter right to a jury trial, reliance on the Charter ceases and the provisions of the Criminal Code govern. There is nothing in paragraph 11(f) to give an accused a constitutional right to elect a particular mode of trial or a constitutional right to be tried by judge alone. Criminal Code provisions mandating a jury trial in the case of certain indictable offences are therefore consistent with paragraph 11(f) (Turpin, supra).

(iii) Absconding accused: waiver must be clear and unequivocal

Failing to appear for trial does not constitute a waiver of the paragraph 11(f) guarantee. While the right to a jury trial is capable of being waived, the standard for waiver is high. The waiver must be clear and unequivocal and the accused must be fully aware of the consequences of such a waiver (Lee, supra).

However, the Criminal Code provision taking away the accused’s right to a jury trial where he had failed to appear for trial was found to be a reasonable limit on the paragraph 11(f) right within the meaning of section 1 of the Charter, and was therefore valid. The provision was intended to prevent diminishing public respect and confidence in the criminal justice system because of the failure of accused persons to attend for their jury trials without legitimate excuse (Lee, supra).

(iv) The accused’s election must be informed

In R. v. Ruston, the Manitoba Court of Appeal held that subsection 561(1) of the Criminal Code must be interpreted to give the accused the right to re-elect his or her mode of trial within 15 days of learning of a substantial change in the Crown’s case, following the conclusion of the preliminary inquiry. It is ordinarily at the preliminary inquiry that the accused will be apprised of the case to meet. Where a substantial change occurs in the Crown’s case following the preliminary inquiry, the accused must be given 15 days to re-elect, such that his decision under paragraph 11(f) may be informed (R. v. Ruston, (1991), 63 C.C.C. (3d) 419 (Man. C.A.); R. v. Hunter, 2004 CarswellOnt 3679 (C.A.)).

4. Crown elections and powers of the Attorney General

Consistent with the ruling of the Supreme Court in the Canadian Bill of Rights case of Smythe, the Ontario Court of Appeal has held that an election by the Crown to proceed by summary conviction where the offence charged is hybrid in nature does not contravene paragraph 11(f) of the Charter, since the accused will not be liable to a punishment of five years of imprisonment, or more, in the event of a conviction (Regina v. Century 21 Ramos Realty Inc. and Ramos, (1987), 58 O.R. (2d) 737 (C.A.), leave to appeal to S.C.C refused, [1987] S.C.C.A. No. 175).

According to lower court authority, the Attorney General may withdraw a charge entitling the accused to a jury trial, and elect to prosecute the accused on a charge that does not engage the accused’s paragraph 11(f) Charter right (R. v. Hickson, [1983] A.J. No. 967 (Q.B.)). Another lower court found, however, that such an approach can violate paragraph 11(f) but, in the circumstance of that matter, did not call for a remedy of a stay of the new charge (R. v. Sendypoint, [1990] A.J. No. 1188 (Prov. Ct.)).

5. Composition of jury

The guarantee in paragraph 11(f) of the benefit of trial by jury implies that the jury will be impartial and representative. The right to an impartial jury that is guaranteed in paragraph 11(d), however, does not entitle the accused to a favourable jury, nor may the selection process be used to thwart the representativeness that is essential to the proper functioning of a jury (R. v. Sherratt, [1991] 1 S.C.R. 509; R. v. Williams, [1998] 1 S.C.R. 1128).

Representativeness focuses on the process used to compile the jury roll and not on its ultimate composition. There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Rather, the state satisfies its constitutional obligation when it provides a fair opportunity to a broad cross-section of society to participate in the jury process. A fair opportunity will have been provided where the state makes reasonable efforts to (1) compile the jury roll using random selection from source lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected (Kokopenance, supra).

Individuals called for jury duty benefit from a presumption of impartiality. The trial judge holds considerable discretion in determining how and in what circumstances that presumption is displaced, and how far challenges to potential jurors for cause may be pushed. The prior case law does not support the need for a broad entitlement in every case to challenges for cause based on racial sympathy for the victim as distinguished from potential racial hostility toward the accused. The interracial nature of a crime may be a factor but it is not necessarily so (R. v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71 at paragraphs 7, 21, 24).

6. Role of judge

(i) Sufficiency of evidence

It is a basic tenet of the jury system that the jury decides issues of fact while the judge determines questions of law. Just as the judge determines the relevance and admissibility of the evidence, it is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury, as this is a question of law alone. Where there is some evidence capable of supporting the particular defence alleged by the accused, the trial judge must put the defence to the jury. The jury, in turn, will weigh it and decide whether it raises a reasonable doubt as to the guilt of the accused. This “air of reality” requirement does not violate paragraph 11(f) of the Charter. (R. v. Osolin, [1993] 4 S.C.R. 595 at paragraphs 185-221)

The requirement of a sufficient evidential foundation aims primarily to avoid wrongful convictions and unwarranted acquittals, while at the same time leaving it to the jury to discharge the responsibilities that are by law within its exclusive domain (R. v. Fontaine, [2004] 1 S.C.R. 702, 2004 SCC 27 at paragraph 58). A defence should be put to the jury whenever a properly instructed jury could reasonably conclude in favour of the accused on account of that evidence (Fontaine, supra, at paragraph 74).

(ii) Judicial comment on the evidence

The common law rule permitting trial judges to express an opinion on the evidence does not violate paragraph 11(f). Trial judges may comment on the evidence provided it is made clear to the jury that they are not bound by the judge’s views and that these views are not overstated. The concern at common law and in paragraph 11(f) is that the trial judge not usurp the function of the jury (Krieger, supra). By setting the limit on judicial comment at the point where comments might threaten the fact finding and ultimate arbiter role of the jury, the common law rule fosters the values underlying paragraph 11(f) (R. v. Lawes, [2006] O.J. No. 720 (C.A.) at paragraph 37, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 175).

(iii) Directing a verdict

It is the exclusive domain of the jury to determine the verdict, except where the judge is satisfied that there is no evidence upon which a properly instructed jury could reasonably convict. In such cases, the judge must direct the jury to acquit the accused. There is no corresponding duty or entitlement to direct a jury to return a verdict of guilty (R. v. Gunning, [2005] 1 S.C.R. 627, 2005 SCC 27 at paragraph 28). Indeed, to do so is a substantial wrong that cannot be cured under the “harmless error” provision of the Criminal Code (subparagraph 686(1)(b)(iii)) (Krieger, supra).

7. Contexts in which paragraph 11(f) rights do not apply

(i) Corporations

A corporation is not subject to imprisonment and therefore the inability of a corporation to be tried by a jury does not contravene paragraph 11(f) of the Charter (PPG Industries Canada Ltd. v. Canada (Attorney General), [1983] B.C.J. No. 2260 (C.A.), appeal to S.C.C. discontinued).

(ii) Dangerous offenders

Paragraph 11(f) does not require that a Crown application to declare an offender a dangerous offender be determined by a jury. The application is rather a part of the sentencing process (R. v. Lyons, [1987] 2 S.C.R. 309). While a person at a post-conviction stage of proceedings may be viewed as being “charged with an offence” for the purpose of other section 11 rights, the right at paragraph 11(f) applies only to the determination of an accused’s guilt (R. v. MacDougall, [1998] 3 S.C.R. 45 at paragraphs 15-16).

The conclusion that the accused is not entitled to the benefit of a trial by jury under paragraph 11(f) does not conclusively determine the question of whether he is entitled to a determination by a jury on the question of his dangerousness, or more generally, on whether the procedural incidents of the proceeding are constitutionally adequate to safeguard his liberty. Rather, such questions fall within the scope of a section 7 inquiry, for section 11 does not limit section 7 but merely serves to illustrate and, perhaps, amplify its potential applications. Having considered the requirements of procedural fairness in the context of dangerous offender proceedings, the Supreme Court concluded that a jury determination is not mandated as a part of these sentencing proceedings (Lyons, supra, at paragraphs 75-85).

(iii) Entrapment

Because entrapment is at issue in a criminal trial only after a finding of guilt by the trier of fact, the right to the benefit of trial by jury is not infringed by allowing the entrapment issue to be determined by a judge alone (R. v. Mack, [1988] 2 S.C.R. 903).

(iv) Fines

On a proper purposive interpretation of paragraph 11(f), the expression “imprisonment of five years or a more severe punishment” should be interpreted as engaging, primarily, the deprivation of liberty inherent in the maximum sentence of imprisonment available under the statute. While the assessment of a punishment’s severity is qualitative and not quantitative, the prospect of significant fines or financial penalties upon conviction under the Securities Act did not bring the offence into the scope of paragraph 11(f) (Peers, supra).

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