Challenge for Cause (Prior to September 19, 2019)

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General Principles

See also: Challenge for Cause

Unaccounted Juror

Objection that name not on panel

640 (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence as the judge thinks fit to receive.
...
[repealed 2019, c. 25, s. 272 on September 19, 2019]

CCC

Result of Challenge

640
...

If challenge not sustained, or if sustained

(3) Where the finding, pursuant to subsection (1), (2) or (2.2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.

Disagreement of triers

(4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true.
R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9.
[repealed 2019, c. 25, s. 272 on September 19, 2019]

CCC

Dynamic Triers

640.
...

Other grounds

(2) If the ground of a challenge is one that is not mentioned in subsection (1) and no order has been made under subsection (2.1), the two jurors who were last sworn — or, if no jurors have been sworn, two persons present who are appointed by the court for the purpose — shall be sworn to determine whether the ground of challenge is true.
...
[repealed 2019, c. 25, s. 272 on September 19, 2019] R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9.

CCC

The dynamic method of selecting jurors is intended to ensure "that the responsibility for determining the challenge for cause is shared by all jurors but the last juror selected".[1]

The changing of triers with each selection is mandatory.[2]

  1. R v WV, 2007 ONCA 546 (CanLII), per Sharpe JA (3:0), at para 26
  2. WV, ibid.

Static Triers

The process involving static triers was added to the Code in 2008.[1]

Section 640(2.1) and (2.2) were added:[2]

640.
...
(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors – sworn and unsworn – from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors.
(2.2) If an order is made under subsection (2.1), two unsworn jurors, who are then exempt from the order, or two persons present who are appointed by the court for that purpose, shall be sworn to determine whether the ground of challenge is true. Those persons so appointed shall exercise their duties until twelve jurors and any alternate jurors are sworn.
[repealed 2019, c. 25, s. 272 on September 19, 2019]
...
R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9.

CCC

The accused may apply under s. 640(2.1) to have two triers select all members of the jury. They themselves cannot become members of the jury.[3]

Sections 640(2),(2.1) and (2.2) do not remove the judge's inherent jurisdiction to exclude jurors from the courtroom during the challenge for cause.[4]

  1. R v White, 2009 CanLII 42049 (ON SC), per Sproat J, at para 8
    R v Douse, 2009 CanLII 34990 (ONSC), per Durno J, at para 18
  2. see R v Swite, 2011 BCCA 54 (CanLII), per Prowse JA (3:0), at para 23
  3. Douse, supra, at paras 18 to 20
  4. R v Huard, 2009 CanLII 39058 (ON SC), per Thomas J, at para 21


Improper Use of Static Triers

The proper use static triers may mean that the jury was not properly constituted and therefor the verdicts must be quashed.[1]

Instructing Triers

The instructions to the trier should contain the following elements:[1]

  1. the triers are to decide if the potential juror is impartial,
  2. the decision is on the balance of probabilities;
  3. the decision must be by both triers,
  4. they may retire to the jury room or discuss it where they are; and
  5. if the triers cannot agree within a reasonable time they are to say so.

The judge must also give the triers an "adequate understanding of the nature of their task and the procedure they were to follow".[2]

Instructions will be adequate where when "viewed in their entirety, the instructions provided [the triers] with an adequate understanding of the nature of their task and the procedure they were to follow in order to select an impartial jury”.[3]

When dealing with dynamic triers it is necessary to repeat the instructions to each and every one of them.[4]

  1. R v Cardinal, 2005 ABCA 303 (CanLII), per curiam (3:0), at para 17
  2. R v Brown, 2005 CanLII 3939 (ON CA), per Simmons JA (3:0),, at paras 29 to 32
  3. R v Rowe, 2006 CanLII 14235 (ON CA), per MacFarland JA, at para 81
  4. R v Li (2004), 183 CCC (3d) 48 (Ont. C.A.), 2004 CanLII 18634 (ON CA), per Borins JA

Decisions of Triers

There is no right for counsel to make submissions to the triers, but may do so at the discretion of the judge.[1]

The decision of a trier can be based not only on the answers to the questions but also on the demeanour and reactions of the potential juror.[2]

Generally, a judge should interfere with the trier's process by making their decision for them on any prospective juror.[3]

However, s. 640(4) permits the judge to dismiss triers who cannot agree and then empanel replacements. Such disagreement also permits the judge to dismiss the juror.[4]

Where a trier expresses uncertainty on the choice of a prospective juror, the judge may in some cases, be able to dismiss the prospective juror.[5]

The triers do not need to make a decision on a particular prospective juror who the defence counsel has already decided is acceptable.[6] However, once questioning starts, the opposing side cannot simply "admit" the challenge, thus rejecting the prospective juror, as in effect the opposing side would have in effect unlimited pre-emptory challenges.[7]

  1. R v Moore-McFarlane, 2001 CanLII 6363 (ON CA), per Charron JA
  2. R v Brown, 2005 CanLII 3939 (ON CA), per Simmons JA (3:0)
    R v Rawlins, [2007] OJ No 4344 (C.A.)(*no CanLII links)
  3. R v Cardinal, 2005 ABCA 303 (CanLII), per curiam (3:0)
  4. Gayle, supra
  5. Cardinal, supra - trier stated he "did not know"
  6. R v Bulatci, 2012 NWTCA 6 (CanLII), per Slatter JA
    R v Katoch, 2009 ONCA 621 (CanLII), per Rosenberg JA (3:0)
  7. Katoch, ibid., at para 48

See Also