Supreme Court of Canada

Spek v. The Queen, [1982] 2 S.C.R. 730

Date: 1982-11-25

Mary Evangeline Basarabas Appellant;

and

Her Majesty The Queen Respondent;

and between

Jenny Louise Spek Appellant;

and

Her Majesty The Queen Respondent.

File Nos.: 16720 and 16701.

1982: November 24, 25.

Present: Ritchie, Dickson, Beetz, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL OF BRITISH COLUMBIA

Criminal law—Procedure—Jury—Juror discharged—Accused not yet put in charge of jury and evidence not called—Whether or not trial had commenced for purposes of s. 573 of the Criminal Code—Criminal Code, R.S.C 1970, c. C-34, s. 573.

A juror at appellants’ trial was discharged pursuant to s. 573 of the Criminal Code after the jury had been empanelled but before the accused had been put in the jury’s charge and before any evidence had been called. The trial continued. The accused unsuccessfully appealed their convictions arguing that the matter should not have been put to eleven jurors. The issue before this Court was when does a jury trial begin for the purposes of s. 573: the Crown contended that the juror was discharged in the course of the trial while the accused argued that the trial began only when the accused were put in the charge of the jury.

Held: The appeals should be allowed.

When a jury commences depends on the Criminal Code section being applied. An accused at common law has a right to the unanimous verdict of twelve jurors unless or until the judge, after the trial has commenced, is satisfied a juror should not continue to act for reasonable cause. Any abridgment of this right, such as the practical cure in s. 573(2) for difficulties arising from the discharge of a juror, should be narrowly construed. The wording of s. 573(1) anticipated the jury’s have acted qua jury prior to a juror’s discharge. The weight of authority supported the position that a jury trial commenced when the accused was placed in the jury’s

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charge. There was no good reason to deny the accused a full jury where no evidence had been led.

R. v. Faderman, 1 Den. C.C. 572; Morin v. The Queen (1890), 1890 CanLII 38 (SCC), 18 S.C.R. 407; Giroux v. The King (1917), 1917 CanLII 81 (SCC), 56 S.C.R. 63; R. v. Dennis, 1960 CanLII 34 (SCC), [1960] S.C.R. 286; R. v. Riddle, 1979 CanLII 1601 (SCC), [1980] 1 S.C.R. 380; R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985; Petersen v. The Queen, 1982 CanLII 200 (SCC), [1982] 2 S.C.R. 493; R. v. Craske, [1957] 2 All E.R. 772; Re Walsh (1914), 1914 CanLII 482 (NS CA), 23 C.C.C. 7; R. v. Emkeit (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309, considered; R. v. Desai, [1973] Crim.L.R. 36, distinguished; Ibrahim (1957), 42 Cr.App.R. 38; R. v. Bennett, [1960] 1 W.L.R. 102; United States v. Curtis, 4 Mason 232; R. v. Miller (1958), 1958 CanLII 419 (AB SCAD), 120 C.C.C. 335; R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281; R. v. Blair and Karashowsky (1975), 1975 CanLII 1459 (AB SCAD), 25 C.C.C. (2d) 47; R. v. Parker (1981), 1981 CanLII 3164 (ON SC), 62 C.C.C. (2d) 161; Clement v. The Queen (1955), 1955 CanLII 825 (QC CA), 22 C.R. 290, referred to.

APPEALS from a judgment of the British Columbia Court of Appeal (1981), 1981 CanLII 351 (BC CA), 62 C.C.C. (2d) 13, upholding the convictions of the two accused. Appeals allowed.

Francie Howard and Peter Leask, for the appellant Mary Evangeline Basarabas.

Clayton Ruby, Q.C., for the appellant Jenny Louise Spek.

Leonard Doust and W.B. Smart, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The question: when does a trial before a jury commence, for the purposes of s. 573 of the Criminal Code, R.S.C. 1970, c. 34? The section reads:

573. (1) Where in the course of a trial the judge is satisfied that a juror should not, because of illness or other reasonable cause, continue to act, the judge may discharge the juror.

(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, or in the Yukon Territory and the Northwest Territories below five, be deemed to remain properly constituted for all

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purposes of the trial and the trial shall proceed and a verdict may be given accordingly.

At the trial of the two appellants a juror was discharged, pursuant to s. 573, after the jury had been empanelled but before the accused had been put in charge of the jury and before any evidence had been called. The Crown contends that the juror was discharged “in the course of” the trial. The accused say no, that a jury trial does not commence until, at the earliest, the time at which the accused is put in charge of the jury.

I

Statement of the Facts and the Judicial History

The appellants were charged with the second degree murder of Tristano Falbo and were found guilty after a trial by judge and jury at the City of Vancouver.

After the appellants had entered their respective pleas of not guilty, and after twelve jurors were sworn, but before the appellants had been given in charge to the jury and before the Crown was called upon to present its case, the court was informed that one of the jurors was a fellow employee of the brother of the alleged victim. The prosecutor suggested that the options were “to simply say goodbye” to that one juror under s. 573(1) of the Criminal Code or to discharge the jury if there was a chance that the entire jury had been “poisoned” in the jury room. Counsel representing both appellants then indicated he had similar concerns about the balance of the jury, agreeing that the juror in question should be removed from the jury.

The particular juror was then questioned briefly by the judge and by counsel for the appellants as to comments he might have made to other jurors. Following this, the judge excused the juror and asked for submissions as to whether the trial should be continued with eleven jurors. In his submission, counsel for the appellants applied for a mistrial on the ground that the balance of the jury may have been tainted. This application was denied.

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The following day the jury was instructed as to the charge facing the appellants and the plea which had been given by each upon arraignment. The appellants were then put in the charge of the jury and the trial proceeded with eleven jurors.

On appeal one of the points taken was that the trial judge had erred in discharging one of the twelve jurors before the appellants had been put in charge of the jury and in permitting eleven jurors to give a verdict. Counsel contended that a jury trial does not commence until the accused has been placed in the charge of the jury and therefore the discharge of the juror did not take place during the “course” of the trial, as provided in s. 573(1). The Court of Appeal of British Columbia, speaking through Mr. Justice Craig, said:

Although I think that there is much to be said for the liberal interpretation of the word “trial,” that is, the trial commences when the accused is arraigned and has pleaded, I think that having regard to the views of Ritchie J., in R. v. Dennis 1960 CanLII 34 (SCC), [1960] S.C.R. 286] the word “trial” has a somewhat more restricted meaning in a trial involving a jury. To what extent is the word restricted—does the trial begin when (1) the jury has been empanelled, (2) the accused has been given in charge to jury, (3) when the Crown begins to adduce evidence? I have concluded that for the purposes of s. 573(1) a trial commences when a jury has been empanelled and is ready to hear the case and does not commence only after the accused has been given in charge to the jury. I do not think that anything said by Ritchie J., in R. v. Dennis precludes me from adopting this view.

The Court of Appeal rejected all other grounds of appeal and the appeals were dismissed. Before this Court counsel, who were not the counsel at trial, have advanced four grounds. Counsel submitted, inter alia that the trial judge had erred in discharging the juror under the provisions of s. 573(1) because the discharge did not arise in the “course” of the trial, counsel contending that in the case of a jury trial the trial does not commence until the accused has been placed in the charge of the jury. At the conclusion of argument Mr. Justice Ritchie, presiding, delivered the following oral judgment for the Court:

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We are all of the view that the Court of Appeal of British Columbia erred in its interpretation of s. 573(1) and s. 573(2) of the Criminal Code with respect to the question of when a trial before a jury commenced.

The appeal is accordingly allowed, the judgment of the Court of Appeal is set aside and a new trial ordered.

Reasons for judgment will follow at a later date.

Hence these reasons. As we have concluded that, by reason of the discharge of the juror, the appellants were not before a court legally constituted to try them we will not advert to any ground of appeal other than that raising the issue as to the time of commencement of a jury trial. Because of error in resolving that issue the conviction must be quashed, irrespective of the merits of the other grounds of appeal.

II

The Authorities

As Baron Alderson said in R. v. Faderman, 1 Den. C.C. 572, “Trial is a very technical word.” In its popular and general sense a trial by jury consists of arraignment and plea, calling and swearing the jury, the opening address of Crown counsel, the examination and cross‑examination of witnesses for the Crown and for the defence, the closing addresses of counsel, the judge’s charge and, last, the jury’s verdict. The cases have, by and large, tended to give a rather more restricted meaning to the word “trial”.

Let us look first at some of the cases in this Court. The first is Morin v. The Queen (1890), 1890 CanLII 38 (SCC), 18 S.C.R. 407. In that case the judges were equally divided in opinion as to when a trial by jury may be said to commence—one half of the Court holding that it commences before the jury is sworn, and the other half after the jury is sworn. Ritchie C.J. said, at p. 415: “…when there is a court duly constituted the prisoner being present and given in charge to the jury his trial in my opinion commences.…” Strong J. and Fournier J. concurred in the opinion of the Chief Justice. The other three judges were of the opinion that the trial com-

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menced prior to the time mentioned by the Chief Justice so we may take it from the judgment that at the latest the trial commences when the jury is sworn and the accused is given in charge to the jury.

In Giroux v. The King (1917), 1917 CanLII 81 (SCC), 56 S.C.R. 63, a majority of the Court rejected the view that upon arraignment the trial has already commenced. The plea and the arraignment were held to be not part of the trial.

In R. v. Dennis, 1960 CanLII 34 (SCC), [1960] S.C.R. 286, Ritchie J. said, at p. 292:

A consideration of proceedings on trial by jury brings to mind the fact that the trial proper does not start until the accused is given in charge to the jury which stage is, of course, not reached until after the plea has been taken and the adoption of this more restricted meaning of the word “trial” has been widely accepted in our own Courts for many years.

In the more recent case of R. v. Riddle, 1979 CanLII 1601 (SCC), [1980] 1 S.C.R. 380, the accused had been charged with common assault. He pleaded not guilty and the matter was adjourned for trial. At the trial the Crown applied for an adjournment as the complainant was not present. The application was refused. As the Crown called no evidence the charge was dismissed. A week later the complainant swore a new information and the question was whether the accused had been in jeopardy in the earlier proceedings. The case was a non-jury summary conviction matter. This Court held, at p. 398:

In my view, a criminal trial commences and an accused is normally in jeopardy from the moment issue is joined before a judge having jurisdiction and the prosecution is called upon to present its case in court. The person accused continues in jeopardy until final determination of the matter by rendering of the verdict.

In R. v. Chabot, 1980 CanLII 54 (SCC), [1980] 2 S.C.R. 985, one of the questions which the Court was called upon to decide was whether the existence of an indictment at some time operated as a bar to an attack, by way of habeas corpus with certiorari in aid, upon the validity of a committal for trial. Specifically,

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at what point could it be said that an indictment brought under s. 507(2) of the Code is “presented” to the court. We held, at p. 992:

I agree with counsel for the Crown that where an indictment is preferred pursuant to s. 507 without the intervention of the grand jury, there are not separate acts of preferral of a bill of indictment, and presentment of an indictment. There is but one act, that act being the placing by the appropriate authority of “an indictment in writing setting forth the offence” before the trial court. This act constitutes the commencement of the trial and is a combination of the steps of preferral and presentment.

Petersen v. The Queen, 1982 CanLII 200 (SCC), [1982] 2 S.C.R. 493, was another case in which the question arose as to when an accused was in jeopardy. In Petersen the Crown commenced proceedings by indictment after dismissal of informations in identical terms by a provincial court judge under Part XXIV of the Code. The appellant was charged with impaired driving and with refusal to furnish a sample of his breath. The Court, speaking through Mr. Justice McIntyre, after quoting the passage from Riddle which I have set out above, said at p. 501:

I do not consider that Dickson J. imposed by those words a requirement that some direct invitation must be issued to the Crown to call evidence before it could be said that the issue had been joined and the accused placed in jeopardy. The authorities he relied upon in his reasons support the proposition that once a plea is entered before a court of competent jurisdiction the accused is in jeopardy.

A number of English cases have dealt with the question of when a trial commences. The earliest to which I would refer is R. v. Faderman, supra, where the prisoner argued that the trial commenced when the prisoner was called upon to plead. Baron Parke said, at p. 574:

Properly, there is no trial till issue is joined. [This I take to mean until the prisoner is given in charge to the jury]

Alderson B. said, at p. 575:

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You say the trial begins with the arraignment: how then do you explain the question which is put to the prisoner after arraignment.—How will you be tried? At what point in the proceedings did the trial by battle begin?

In R. v. Craske, [1957] 2 All E.R. 772, s. 24 of the Magistrates’ Courts Act, 1952 fell to be considered. The section read:

…a magistrates’ court, having begun to try an information for any indictable offence summarily, shall not thereafter proceed to inquire into the information as examining justices.

Counsel for the prosecutor contended that when the prisoner elected and pleaded the trial had started and the magistrate had begun to try the case. Lord Goddard C.J. responded, at p. 774:

If one looks at the whole scope of this section, however, the magistrate has not begun to try the case until at any rate he begins to hear the evidence. I cannot think that Parliament, by these sections, meant to create a wholly different state of affairs in magistrates’ courts with regard to indictable offences than prevails at an assize or quarter session with regard to indictable offences. A prisoner who is brought up for trial and has had the indictment read to him and who has pleaded is constantly allowed to withdraw his plea, and he can do it before the jury is empanelled. The trial at assizes does not, so it seems to me, begin until the jury is empanelled to try the case and the prisoner is put in charge of the jury.

In Ibrahim’s case (1957), 42 Cr.App.R. 38, Lord Chief Justice Goddard followed R. v. Craske holding, at p. 42, that a magistrate “has not begun to try the case till he begins to hear evidence”. See also R. v. Bennett, [1960] 1 W.L.R. 102, to the same effect.

As I have earlier indicated, counsel for the accused in the case at bar contended that a jury trial did not commence until, at the earliest, the accused was given in charge of the jury. The Crown relied upon the abbreviated summary of R. v. Desai, reported at [1973] Crim.L.R. 36, reading:

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Although giving a defendant in charge to the jury is a traditional part of trial procedure it is not an essential part of the trial and failure to do so does not render the trial a nullity.

Following argument on the appeal the Court was furnished with a copy of the entire judgment in R. v. Desai from which it appears that the accused was convicted of conspiracy to contravene the provisions of the Commonwealth Immigrants Act, 1962 and 1968. One of his complaints was that he had not formally been put in charge of the jury. The Clerk of the Peace merely announced the title of the suit by saying “The Queen against Ebrahim Mohamed Desai”, sat down and prosecuting counsel opened the case to the jury.

The Court held:

Technically it appears there was a lacuna in the trial in the sense that what is normally done was not done; but, in the judgment of this Court, this is, though an omission, an omission rather in the character of omitting the allocutus; the cases on that topic indicate that while this is part of the traditional business of the Court, it is not an essential part of the trial and its omission does not involve a re-trial.

I do not think the Desai case provides an answer to the contentions of the appellants. The case simply decides that failure to put an accused in the charge of a jury does not render a trial a nullity. The case is not authority for the proposition that the giving of the accused in charge to the jury is a step that no longer exists. Nor is it authority for the question of when a jury trial commences.

Many cases from the provincial courts were cited in argument. I will refer briefly to a number of these cases. The first of these, referred to in the judgments of this court in Morin and Giroux is Re Walsh (1914), 1914 CanLII 482 (NS CA), 23 C.C.C. 7. Graham E.J. delivered the principal judgment. The issue concerned s. 827 of the Criminal Code, 1906, and the right of re-election which might be exercised “at any time before such trial has commenced”. The question then to be answered was—when does a trial com-

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mence? Graham E.J., at p. 17, referred to Story J. in United States v. Curtis, 4 Mason 232 at 236:

Now, in the sense of the common law the arraignment of the prisoner constitutes no part of the trial. It is a preliminary proceeding and, until the party has pleaded, it cannot be ascertained whether there will be any trial or not. The elementary books are full to this purpose.

and, at p. 18, to Blackstone, quoting Lord Hale:

In short, so far as authorities or reasoning or forms go, there can be no legal doubt that, by the term “trial,” is generally intended in the law, the actual trial of the prisoner by jury.

The Alberta Supreme Court in R. v. Miller (1958), 1958 CanLII 419 (AB SCAD), 120 C.C.C. 335, interpreted s. 697 of the Criminal Code which permitted a summary conviction court, “at any time before the trial” to waive jurisdiction over the proceedings in favour of another summary conviction court. Johnson J.A. said, at p. 339, “There is no doubt that “trial” begins with the hearing of the evidence.” On the other hand, in the Quebec decision, Clement v. The Queen (1955), 1955 CanLII 825 (QC CA), 22 C.R. 290, another election case, the court would seem to have been of the view that the trial commences after a plea of not guilty.

R. v. Emkeit (1971), 1971 ALTASCAD 37, 3 C.C.C. (2d) 309, is a useful case because s. 553 (now s. 573), the section of the Code under consideration in the present case, was under study. The jury was chosen and sworn, and the accused was put in their charge. Sometime later, before counsel for the Crown had opened the case, the trial judge discharged one of the twelve jurors pursuant to then s. 553 and the question was whether the juryman was discharged in the course of the trial or prior thereto, or in other words, when did the trial commence. Smith C.J.A. delivering the judgment of the Court held that the trial commenced when the jury was sworn and the accused was given in charge to the jury. Discharge of the juror was therefore made in the “course of the trial” and the trial judge was entitled to do this.

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In R. v. Hatton (1978), 1978 CanLII 2398 (ON CA), 39 C.C.C. (2d) 281, Martin J.A. delivered the judgment of the Court and, in the course of doing so, referred (at p. 289) to the “well-established rule that a trial by jury commences when the accused is given in charge to the jury”. Emkeit, Morin and Dennis were quoted in support of this proposition. The Alberta Supreme Court, Appellate Division, in R. v. Blair and Karashowsky (1975), 1975 CanLII 1459 (AB SCAD), 25 C.C.C. (2d) 47, held that at the moment when a prisoner is given in charge the trial commences. In R. v. Parker (1981), 1981 CanLII 3164 (ON SC), 62 C.C.C. (2d) 161, another discharge of a juror case, DuPont J. held at p. 163 that s. 573(1) “contemplates discharge after the empanelling of a complete jury and after the accused are given in the jury’s charge”.

III

Conclusion

The question of fixing the time of the commencement of a jury trial has been the subject of some difficulty in the past. It seems possible, however, on the authorities and on principle to reach the following conclusions.

First, the time of commencement of a jury trial will vary according to the circumstances and the language of the section of the Criminal Code being applied. Thus, the word “trial” in s. 577(1) which assures the accused the right to be present “during the whole of his trial” will be liberally construed to afford the accused the right to be present during the selection of the jury. In like manner, the word “trial” in s. 566 which denies the prosecutor the right to direct a juror to stand by on the trial of an indictment for the publication of a defamatory libel will be interpreted to embrace the proceedings preceding the empanelling of the jury. In other sections “trial” may have a different connotation depending upon the section of the Code being applied.

Second, subject to s. 573 an accused in a criminal jury trial is entitled to be tried by twelve jurors (ss. 560(5) and 572(1) of the Code). He is entitled to the unanimous verdict of the twelve jurors unless and until “in the course of a trial”, that is to say, after it has commenced, the judge is satisfied

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that a juror should not, because of illness or other reasonable cause, continue to act.

Third, as counsel for the appellant Basarabas submits, s. 573(2) of the Criminal Code is a provision that provides a practical cure for the difficulties inherent in having to discharge a jury after it has commenced to hear the evidence and, in so far as this section deprives the accused of his common law right to the unanimous verdict of twelve persons, it should be narrowly construed; there is no good reason for denying an accused a full jury where no evidence has been led. An accused should not be lightly deprived of his or her right to be tried by a jury of twelve persons. It would be undesirable to start a trial with less than that number. As counsel submitted, s. 573 of the Code provides a mechanism whereby jurors can be replaced simply and easily to maintain a full jury as late in the proceedings as is consistent with fairness to the parties. To advance in time the stage when the trial is forced to proceed with one juror missing, beyond that required by common sense and the plain language of the Code, is to increase the likelihood, in a lengthy trial, should other jurors fall ill, that mistrials will have to be declared the requisite number of jurors is lacking.

Fourth, the words “continue to act” in s. 573(1) suggest that the jury has been acting, qua jury before the discharge of a juror pursuant to s. 573. Until the accused is placed in the jury’s charge, and the jury is advised of the charge and the plea and of their duty to inquire whether the accused is guilty or not guilty of the offence charged, it cannot be said that the jury is acting qua jury.

Finally, the weight of authority supports the position of the accused that a jury trial commences when the accused has been placed in charge of the jury. Canadian courts have frequently cited the judgment of Ritchie C.J. in support of a narrow interpretation of the word “trial” in respect of a jury trial.

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It is for these reasons the Court concluded that the Court of Appeal of British Columbia had erred in its interpretation of s. 573(1) and s. 573(2) of the Criminal Code and that a new trial should be ordered.

Appeals allowed.

Solicitors for the appellant Mary Evangeline Basarabas: Fraser and Leask, Vancouver.

Solicitors for the appellant Jenny Louise Spek: Ruby and Edwardh, Toronto.

Solicitors for the respondent: Doust and Smith, Vancouver.