From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 89471)

General Principles

The Canadian jury system has been described as one of the "most familiar symbol and manifestation of the Rule of Law in this country."[1]

The jury brings to the system the "values and insights of ordinary citizens" as well as their "common sense."[2]

A jury's task is not to "reconstruct what happened" but rather to determine if the burden of proof sufficient to make out a conviction has been met.[3]

Courts must ensure that nothing is put before a jury in the form of evidence or argument that would play on any emotions or unfair reasoning, including inflamatory remarks.[4]

Capacity of Jury Members

The jury system assumes that jurors are "intelligent and reasonable fact-finders."[5]

  1. R v Barton, 2017 ABCA 216 (CanLII), 354 CCC (3d) 245, per curiam, at para 1, rev'd on other grounds 2019 SCC 33
  2. R v Cabrera, 2019 ABCA 184 (CanLII), 442 DLR (4th) 368, per Fraser CJ (2:1), at para 1
  3. R v Pittiman, 2006 SCC 9 (CanLII), [2006] 1 SCR 381(V), per Charron J (5:0)
  4. R v Roberts, 1973 CanLII 1487 (ON CA), CCC (2d) 368, per Jessup JA, at p. 370 ("It has been said on many occasions that the paramount duty of the Crown prosecutor is to see that justice is done, not to strive for a conviction. Certainly, he ought to refrain from language which is likely to inflame the jury and to divert the jury's attention from the real issue that they have to decide.")
    R v Vallieres, 1969 CanLII 1000 (QC CA), [1970] 4 CCC 69, per Hyde JA, at p. 82 ("[I]n a trial before a jury, no evidence can be presented, and no statement may be made by counsel for the Crown, which might induce a jury to base a conviction upon psychological or passionate grounds which might affect the most objective and just treatment of the accused, in accordance with cold reason...")
  5. R v White, 2011 SCC 13 (CanLII), [2011] 1 SCR 433, per Rothstein J

Right to a Jury Trial

Section 11(f) of the Charter provides certain rights to trial by jury:

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

(f) 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;


An offence with a maximum penalty of 5 years less a day cannot be considered a "more severe punishment" due to the existence of some "collateral negative consequences" to the period of incarceration.[1]

Where an offence violates s. 11(f) the appropriate remedy would not be an entitlement to a jury trial, but rather a "reading down" of the offence maximum penalties.[2]

Similarly, s. 471 provides a presumption of a right to a jury in all indictable offences:

Trial by jury compulsory

471. Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury.
R.S., c. C-34, s. 429.


Note up: 471

Jurors bring their own life experience's to their task.[3]

A prospective juror is presumed capable of "setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties."[4]

Members of the jury are to come to a unanimous conclusion on the verdict. They do not have to agree on the means or path to that verdict.[5]

  1. R v Peers, 2015 ABCA 407 (CanLII), 330 CCC (3d) 175, per curiam (2:1), at para 15 - the court qualifies by suggesting collateral punishment such as "corporal punishment, banishment from the community, forced labour, or revocation of citizenship" may be enough. (aff'd at 2017 SCC 13 (CanLII), per curiam)
  2. Peers, ibid., at para 19
  3. See R v Pan, 2001 SCC 42 (CanLII), 330 CCC (3d) 175, per Arbour J (9:0), at para 61
  4. R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863, per McLachlin CJ, at para 26
  5. R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ

Specific Offences

Offences under s. 469, including first or second degree murder, shall be tried by judge and jury.

Trial without jury

473 (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 [exclusive jurisdiction offences] may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.

Joinder of other offences

(1.1) Where the consent of the accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], the judge of the superior court of criminal jurisdiction may order that any offence be tried by that judge in conjunction with the offence listed in section 469 .

Withdrawal of consent

(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1) [s. 469 triable without jury on consent], that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
R.S., 1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994, c. 44, s. 30.
[annotation(s) added]


Note up: 473(1), (1.1) and (2)


See Also