R. v. Turpin [1989] 1 S.C.R. 1296: Whether the Criminal Code, which gives accused persons in Alberta (but not in any other province) an election to be tried before a judge alone, violates appellants' equality rights

Except in Alberta, an accused charged with murder must, under ss. 427, 429 and 430 of the Criminal Code, be tried by a judge and jury. The appellants and a co-accused, who were charged with first degree murder in Ontario, made a pre-trial motion for a trial by a judge alone. The trial judge granted the motion holding that the effect of s. 11(f) of the Canadian Charter of Rights and Freedoms was to allow an accused to elect whether to be tried by a judge and jury or by a judge alone. He also held that ss. 427, 428 and 429 of the Criminal Code violated s. 15 of the Charter because s. 430 gave individuals charged with the same offence in Alberta an election to be tried by a judge alone. At trial, T was acquitted and S and the co-accused were convicted of second degree murder. The Court of Appeal allowed the Crown's appeal on the ground that the trial judge had conducted the trial without jurisdiction, set aside the verdicts and ordered a new trial on the original charge for all three accused. The Court found that there had been no violations of ss. 11(f) and 15 of the Charter. These appeals are to determine (1) whether ss. 429 and 430 of the Criminal Code, which require a murder trial to be conducted before a judge and jury, violate appellants' right to waive a trial by jury under s. 11(f) of the Charter; and (2) whether s. 430 of the Code, which gives accused persons in Alberta (but not in any other province) an election to be tried before a judge alone, violates appellants' equality rights under s. 15 of the Charter. Held: The appeals should be dismissed.

(2) Section 15

The guarantee of equality before the law is designed to advance the value that all persons be subject to the equal demands and burdens of the law and not suffer any greater disability in the substance and application of the law than others. Here, the impugned provisions denied the appellants equality before the law. The appellants, who wished to be tried by a judge alone, were precluded from receiving such a trial by the combined force of ss. 427 and 429 of the Criminal Code. Section 430 of the Code, on the other hand, permits those charged with the same offence in Alberta to be tried by a judge alone. The impugned provisions of the Code treated the appellants and those charged with the offences listed in s. 427 more harshly than those charged with the same offences in the province of Alberta who, because of s. 430, have an opportunity to be tried by judge alone if they deem this to be to their advantage. However, while the distinction created by s. 430 resulted in a violation of appellants' rights to equality before the law, such distinction was not discriminatory in its purpose or effect and, therefore, did not violate s. 15 of the Charter. Persons resident outside Alberta and charged with s. 427 offences outside Alberta do not constitute a (page 1299) disadvantaged group in Canadian society within the contemplation of s. 15.

Wilson J at 1331: In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. McIntyre J. emphasized in Andrews (at p. 167): For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application. Nor will a law necessarily be bad because it makes distinctions.

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality or whether, (page 1332) contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged.

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