Challenge for Cause (Prior to September 19, 2019)
Result of Challenge
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".
The changing of triers with each selection is mandatory.
The process involving static triers was added to the Code in 2008.
Section 640(2.1) and (2.2) were added:
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.
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.
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.
The instructions to the trier should contain the following elements:
- the triers are to decide if the potential juror is impartial,
- the decision is on the balance of probabilities;
- the decision must be by both triers,
- they may retire to the jury room or discuss it where they are; and
- 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".
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”.
When dealing with dynamic triers it is necessary to repeat the instructions to each and every one of them.
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.
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.
Generally, a judge should interfere with the trier's process by making their decision for them on any prospective juror.
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.
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.
The triers do not need to make a decision on a particular prospective juror who the defence counsel has already decided is acceptable. 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.
- R v Moore-McFarlane, 2001 CanLII 6363 (ON CA), per Charron JA
R v Brown, 2005 CanLII 3939 (ON CA), per Simmons JA (3:0)
R v Rawlins,  OJ No 4344 (C.A.)(*no CanLII links)
- R v Cardinal, 2005 ABCA 303 (CanLII), per curiam (3:0)
- Cardinal, supra - trier stated he "did not know"
R v Bulatci, 2012 NWTCA 6 (CanLII), per Slatter JA
R v Katoch, 2009 ONCA 621 (CanLII), per Rosenberg JA (3:0)
Katoch, ibid., at para 48