Jury Selection

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General Principles

Every person charged with a crime has a right to a fair trial before an impartial tribunal. This right includes the right to an impartial jury.[1]

The right to a jury is protected by s. 1(d) which guarantees the right to be tried by an "independent and impartial tribunal" and s. 11(f) which guarantees the right to a jury that is "impartial and representative".[2]

Any legal errors in jury selection will require a new trial.[3] This includes errors of law by the judge or unreasonable exercise of discretion in managing the selection process.[4]

The judge presiding over a trial does not necessarily have to be the same judge who presides over the selection.[5]

  1. R v Sherratt, [1991] 1 SCR 509, 1991 CanLII 86 (SCC), (1991), 63 CCC (3d) 192 (S.C.C.), per L'Heureux-Dube J, at para 57
    R v Douse, 2009 CanLII 34990 at para 40
  2. Sherratt, supra at para 35
  3. R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694 at p. 714
  4. R v Barnes 1999 CanLII 3782 (ON CA), (1999), 46 OR (3d) 116 at para 30, 138 CCC (3d) 500 (CA)
  5. see s. 626.1

Impartial and Independent Jury

Jurors are presumed by their oaths to be impartial judges.[1]

However, where the potential bias is clear and obvious, or where it can be shown that there is reason to suspect that members of a jury may possess bias that cannot be set aside, then the jury can be screened by a challenge for cause.[2]

  1. R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128 at para 13
    R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458 at paras 21-22
    R v K.(A.) 1999 CanLII 3793 (ON CA), (1999), 176 D.L.R. (4th) 665 (Ont. C.A.) at para 52
  2. R v Find, [2001] 1 SCR 863, 2001 SCC 32 (CanLII), (2001), 154 CCC (3d) 97 (S.C.C.) at para 26, Sherratt, para 41 and 44
    Douse, at para 40

Representative Jury

Juries are to consist of "a representative cross-section of Canadian society". [1] As such an accused has no right to demand that the jurors be composed of a certain race or ethnicity.[2]

Representativeness is an entitlement that is essential at the "polling" and "panel" level of jury selection, but not so at the final stage of the final selection of the members of the jury.[3]

A representative jury is important as it "contributes to a sense of confidence that the jury will be fair and impartial".[4] A representative jury has the effect of bringing a diversity of backgrounds and experiences, in addition to cultural sensitivities.[5]

Certain characteristics such as the type of employer the person has are immaterial and have no bearing on the right to representativeness.[6]

  1. R v Ironeagle, 2012 SKQB 324 (CanLII) at para 5
  2. R v Kent, (1986), 40 Man. R. (2d) 160, (1986) 27 CCC (3d) 405 (Man. C.A.)(*no link) at p. 421 ("An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror")
    R v Ironeagle, 2012 SKQB 324 (CanLII) at para 5
  3. R v Pan, 2014 ONSC 1393 at para 34 to 37
  4. Pan, supra at para 31
    R v Kokopenace (ONCA) at para 26
  5. Pan, supra at para 31
    R v Church of Scientology of Toronto, 1997 CanLII 16226 (ON CA), [1997] O.J. No. 1548 at para. 151 per Rosenberg JA
  6. Pan, supra at para 54

Qualification and Eligibility of a Juror

Under s. 626, a "qualified" juror is defined as a person who "according to ... the laws of a province" is qualified and who is "summoned as a juror" in accordance with the governing provincial law:

Qualification of jurors
626. (1) A person who is qualified as a juror according to, and summoned as a juror in accordance with, the laws of a province is qualified to serve as a juror in criminal proceedings in that province.
No disqualification based on sex
(2) Notwithstanding any law of a province referred to in subsection (1), no person may be disqualified, exempted or excused from serving as a juror in criminal proceedings on the grounds of his or her sex.
R.S., 1985, c. C-46, s. 626; R.S., 1985, c. 27 (1st Supp.), s. 128.


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Each province will have a Juries Act, or equivalent which sets out the eligibility and the process for summoning them to court.[1]


Summoning a Jury

Where the Pool is Exhausted

Summoning other jurors when panel exhausted
642 (1) If a full jury and any alternate jurors considered advisable cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors.
Orally
(2) Jurors may be summoned under subsection (1) by word of mouth, if necessary.
Adding names to panel
(3) The names of the persons who are summoned under this section shall be added to the general panel for the purposes of the trial, and the same proceedings shall be taken with respect to calling and challenging those persons, excusing them and directing them to stand by as are provided in this Part with respect to the persons named in the original panel.
R.S., 1985, c. C-46, s. 642; 1992, c. 41, s. 4; 2002, c. 13, s. 56.


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Challenging the Jury Panel or Array

Under s. 629, either party may challenge the jury panel or array from which jurors from which jurors are selected.

Under the heading of "challenging the array", s. 629 states:

Challenging the jury panel
629. (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.
In writing
(2) A challenge under subsection (1) shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself, as the case may be.
Form
(3) A challenge under this section may be in Form 40.
R.S., 1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s. 130.
Trying ground of challenge
630. Where a challenge is made under section 629, the judge shall determine whether the alleged ground of challenge is true or not, and where he is satisfied that the alleged ground of challenge is true, he shall direct a new panel to be returned.
R.S., c. C-34, s. 559.


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Partiality

Issues of partiality will usually take the form of problems with the demographics of the array of potential jurors.

Where the selecting potential jurors intentionally excludes aboriginals, it may be found to be partial.[1]

There is no Charter right that entitles an accused person to a jury that consists either entirely or proportionately of the same race as the accused.[2] Nevertheless, systemic biases in the method of selection against certain races may result in partiality.[3]

  1. R v Butler, (1984), 63 CCC (3d) 243, 3 C.R. (4th) 174 (BCCA)(*no link)
  2. R v Kent, (1986), 40 Man. R. (2d) 160, (1986) 27 CCC (3d) 405 (MBCA)(*no link)
    R v Fowler, 2005 BCSC 1874 (CanLII)
    R v Teerhuis-Moar, 2007 MBQB 165 (CanLII)
  3. See Fowler, supra
    and Teerhuis-Moar, supra

Jury Selection Procedure

The selection process is governed by each province's Juries Act in addition to s. 631 to 644 of the Code.[1]

Jury List and Jury Panel
The "jury roll" (or "jury list") is prepared either by the sheriff's office or the regional Court's prothonotary based on persons resident in a certain geographical region.[2] From the List a jury panel is randomly created.[3]

  1. e.g. R v Pan, 2014 ONSC 1393 (CanLII) at para 30
    Jury Act, RSBC 1996, c 242
    Juries Act, SNS 1998, c 16
    Jury Act, RSA 2000, c J-3
    Juries Act, RSO 1990, c J.3
  2. Pan, ibid. at para 30
  3. Pan, ibid. at para 34

Selecting Jurors From the Panel

Names of jurors on cards
631. (1) The name of each juror on a panel of jurors that has been returned, his number on the panel and his address shall be written on a separate card, and all the cards shall, as far as possible, be of equal size.
To be placed in box
(2) The sheriff or other officer who returns the panel shall deliver the cards referred to in subsection (1) to the clerk of the court who shall cause them to be placed together in a box to be provided for the purpose and to be thoroughly shaken together.
(2.1)...
(2.2)...
Cards to be drawn by clerk of court
(3) If the array of jurors is not challenged or the array of jurors is challenged but the judge does not direct a new panel to be returned, the clerk of the court shall, in open court, draw out one after another the cards referred to in subsection (1), call out the number on each card as it is drawn and confirm with the person who responds that he or she is the person whose name appears on the card drawn, until the number of persons who have answered is, in the opinion of the judge, sufficient to provide a full jury and any alternate jurors ordered by the judge after allowing for orders to excuse, challenges and directions to stand by.
Exception
(3.1) The court, or a judge of the court, before which the jury trial is to be held may, if the court or judge is satisfied that it is necessary for the proper administration of justice, order the clerk of the court to call out the name and the number on each card.
Juror and other persons to be sworn
(4) The clerk of the court shall swear each member of the jury, and any alternate jurors, in the order in which his or her card was drawn and shall swear any other person providing technical, personal, interpretative or other support services to a juror with a physical disability.
Drawing additional cards if necessary
(5) If the number of persons who answer under subsection (3) or (3.1) is not sufficient to provide a full jury and the number of alternate jurors ordered by the judge, the clerk of the court shall proceed in accordance with subsections (3), (3.1) and (4) until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection (2.2) — and any alternate jurors are sworn.
Ban on publication, limitation to access or use of information
(6) On application by the prosecutor or on its own motion, the court or judge before which a jury trial is to be held may, if the court or judge is satisfied that such an order is necessary for the proper administration of justice, make an order

(a) directing that the identity of a juror or any information that could disclose their identity shall not be published in any document or broadcast or transmitted in any way; or
(b) limiting access to or the use of that information.

R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.


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Section 2 defines "clerk of the court".

Juries Greater than Twelve

It is generally accepted that only 12 jurors can decide a case. However, more than 12 jurors can hear a case.

631.
...

Alternate jurors
(2.1) If the judge considers it advisable in the interests of justice to have one or two alternate jurors, the judge shall so order before the clerk of the court draws out the cards under subsection (3) or (3.1).
Additional jurors
(2.2) If the judge considers it advisable in the interests of justice, he or she may order that 13 or 14 jurors, instead of 12, be sworn in accordance with this Part before the clerk of the court draws out the cards under subsection (3) or (3.1).
...
R.S., 1985, c. C-46, s. 631; R.S., 1985, c. 27 (1st Supp.), s. 131; 1992, c. 41, s. 1; 1998, c. 9, s. 5; 2001, c. 32, ss. 38, 82; 2002, c. 13, s. 52; 2005, c. 32, s. 20; 2011, c. 16, s. 7.


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Trying of issues of indictment by jury
652.1 (1) After the charge to the jury, the jury shall retire to try the issues of the indictment.
Reduction of number of jurors to 12
(2) However, if there are more than 12 jurors remaining, the judge shall identify the 12 jurors who are to retire to consider the verdict by having the number of each juror written on a card that is of equal size, by causing the cards to be placed together in a box that is to be thoroughly shaken together and by drawing one card if 13 jurors remain or two cards if 14 jurors remain. The judge shall then discharge any juror whose number is drawn.
2011, c. 16, s. 13.


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Peremptory Challenges

Peremptory challenges refers to the ability for each party to veto a selected juror without the obligation of giving reasons for it.

Peremptory challenges
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
...
If 13 or 14 jurors
(2.01) If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.
If alternate jurors
(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.
Supplemental peremptory challenges
(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.
Where there are multiple counts
(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.
Where there are joint trials
(4) Where two or more accused are to be tried together,

(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and
(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.

R.S., 1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s. 54; 2008, c. 18, s. 25; 2011, c. 16, s. 8.


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The number of challenges will vary on the type of charge before court. Under s. 634(2), the standard number of challenges consist of:

  • 20 peremptory challenges for high treason or first degree murder (s. 634(2)(a))
  • 12 peremptory challenges for offences with a maximum penalty greater than 5 years (s. 634(2)(b))[1]
  • 4 peremptory challenges for all other offences (s. 634(2)(c))

An attempt by the Crown to strategically stand-aside all male jury candidates can be held as valid and not an abuse of process.[2]

A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.[3]

The limitation of 12 jurors for a trial on second degree murder does not violate s. 7 of the Charter due to inequality with the number of peremptions available on a first degree murder trial.[4]

  1. see also Offences by Penalty
  2. see R v Pizzacalla (C.A.), 1991 CanLII 7070 (ON CA)
  3. R. v Brown (2005), 2005 CanLII 3939 (ON CA), 194 CCC (3d) 76
  4. R v Oliver, 2005 CanLII 3582 (ON CA)

Jury Vetting by Crown or Defence

Background checks can be done by the police to ensure eligibility under the Criminal Code and provincial jury Acts. If information is found such as a criminal record, it must be disclosed to the defence.[1]

There is a limited ability for the police to give opinion on jury selection that does not need to be disclosed due to the lack of reliability of the opinion and underlying information such as community reputation.[2]

Defence must disclose any information they know that may indicate a juror is partial or ineligible.[3]

  1. R v Yumnu, 2012 SCC 73 (CanLII)
    R v Emms, 2012 SCC 74 (CanLII)
    R v Davey, 2012 SCC 75 (CanLII)
  2. Yumnu, supra
    Emms, supra
    Davey, supra
  3. Yumnu, supra at para 66-67

Excusing Jurors During Selection

See also: Discharging a Juror

Excusing jurors
632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;
(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or
(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

R.S., 1985, c. C-46, s. 632; 1992, c. 41, s. 2; 2001, c. 32, s. 39; 2002, c. 13, s. 53.


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The judge must vet the jury for hardship exemptions before beginning with peremptory challenges or challenges for cause. To do otherwise effectively reduces the number of challenges that each side may have.[1]

  1. R v Douglas, 2002 CanLII 38799 (ON CA)

Challenge for Cause