Peremptory Challenge (Prior to September 19, 2019)
- Section 269 of Bill C-75 Repealed s. 634 on September 19, 2019 removing pre-emptory challenges
- NOTE: R v Chouhan, 2020 ONCA 40 found that the provisions were not retrospective and only apply to proceeding commenced after the amendment date of September 19, 2019
Peremptory challenges refer to the ability for each party to veto a selected juror without the obligation of giving reasons for it.
The number of challenges will vary on the type of charge before court. Under s. 634(2), the standard number of challenges consist of:
|Number of Peremptory Challenges||Offence(s)||Code|
|20||high treason or first degree murder||s. 634(2)(a)|
|12||offences with a maximum penalty greater than 5 years||s. 634(2)(b)|
|4||all Jury eligible offences with a penalty of 5 years or less||s. 634(2)(c)|
- Abuse of Process
An attempt by the Crown to strategically stand-aside all male jury candidates can be held as valid and not an abuse of process.
- Discretion to Give Additional Preemptions
A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.
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.
The removal of 634 is not strictly procedural and so applies only prospectively.
The right to peremptory challenges remains vested in those cases where, before the date of amendment, the accused is charged with an exclusive jurisdiction offence, a direct indictment has been filed, or where there is an election for trial by judge and jury.
- see also Offences by Penalty
List of Straight Indictable Offences
List of Hybrid Offences
- see R v Pizzacalla (C.A.), 1991 CanLII 7070 (ON CA), per Morden ACJ
- R v Brown (2005), 2005 CanLII 3939 (ON CA), 194 CCC (3d) 76, per Simmons JA
- R v Oliver, 2005 CanLII 3582 (ON CA), per Doherty JA
R v Chouhan, 2020 ONCA 40 (CanLII), per Watt JA
- Chouhan, ibid.
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.
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.
Defence must disclose any information they know that may indicate a juror is partial or ineligible.