Challenge for Cause

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General Principles

Presumption of Impartiality

Jurors are presumed by their oaths to be impartial judges.

However, where the potential bias is clear and obvious, or where it can be shown that there is a 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.

Grounds to Challenge

Section 638 provides both Crown and defence counsel to make a challenge for cause on the basis of several available grounds:

Challenge for cause

638 (1) A prosecutor or an accused is entitled to any number of challenges on the ground that

(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;

(b) a juror is not impartial;

(c) a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect;

(d) a juror is not a Canadian citizen;

(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627 [support for juror with physical disability], is physically unable to perform properly the duties of a juror; or

(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 [language of accused] to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

No other ground

(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1) [challenge for cause – enumerated grounds].

(3) and (4) [Repealed, 1997, c. 18, s. 74]

(5) [Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96]

R.S., 1985, c. C-46, s. 638; R.S., 1985, c. 27 (1st Supp.), s. 132, c. 31 (4th Supp.), s. 96; 1997, c. 18, s. 74; 1998, c. 9, s. 6; 2019, c. 25, s. 271.
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There must be an "evidentiary foundation" for any claim of challenge for cause.

The judge has wide discretion to supervise the challenge. Including when to exclude the jury panel.

There is not a fixed rule that a jury panel should be excluded during a challenge for cause.

Challenge for Bias

Under section 638(1)(b), a party may challenge a juror "for cause", alleging that the juror may not be indifferent. The test is whether there is "a 'realistic potential' that the jury pool may contain people who are not impartial in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused …"

The purpose of challenge for cause is to screen out potential biases in juries.

The fundamental issue on challenges for cause is whether the accused can receive a fair trial pursuant to s. 11(d) of the Charter.

The party challenging cause must establish that:

1. a widespread bias exists in the community; and
2. some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.

There are the "attitudinal" and "behavioural" components to partiality.

There is a presumption that jurors are capable of setting aside their views and biases in favour of impartiality between Crown and the accused and compliance with the trial judge's instructions.

The decision to permit a challenge for cause is discretionary, but when in doubt the judge should "err on the side of permitting challenges".

Challenges will normally be directed at all potential jurors but may be targeted at specific jurors.

Evidence

The basis of challenge can be established by way of expert testimony regarding the bias alleged.

Background Checks of Potential Jurors

The Crown has a limited ability to make police background checks into each prospective juror for the purpose of challenges under s. 638(1)(c). Where it is done so, the results must be disclosed to the defence.

Questioning

The questions should be “relevant, succinct and fair” and avoid invading "the privacy of prospective jurors in an attempt to probe personal feelings, opinions, and beliefs". The questions must remain "within the bounds of a legitimate inquiry into the impartiality of potential jurors".

The ability to challenge opinions is limited. Often the questions are narrow enough only to be answered yes or no.

It is solely the judge who determines the form of the question given the circumstances of the case.

Process

It is not appropriate to group jurors on the basis of race as it violates the requirement of random selection under s. 631.

There are two methods of selecting jurors on a challenge for cause. First, there is the "dynamic triers" method and then there is the "dynamic triers" method of selection.

An accused does not have a right to have a jury including members of a particular race, ethnicity or background.

Procedure

An intention to challenge for cause may require written notice:

Challenge in writing

639 (1) Where a challenge is made on a ground mentioned in section 638 [challenge for cause – grounds], the court may, in its discretion, require the party that challenges to put the challenge in writing.

Form

(2) A challenge may be in Form 41 [forms].

Denial

(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.
R.S., c. C-34, s. 568.
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An intention to a challenge of the array may also require notice:

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) [challenging the jury panel – grounds] 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 [forms].
R.S., 1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s. 130.
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Ordering of Challenges

Order of challenges

635 (1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror for cause, and after that the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration.

Where there are joint trials

(2) Subsection (1) [ordering of challenges for cause] applies where two or more accused are to be tried together, but all of the accused shall exercise the challenges of the defence in turn, in the order in which their names appear in the indictment or in any other order agreed on by them,

(a) in respect of the first juror, before the prosecutor; and

(b) in respect of each of the remaining jurors, either before or after the prosecutor, in accordance with subsection (1) [ordering of challenges for cause].

R.S., 1985, c. C-46, s. 635; R.S., 1985, c. 2 (1st Supp.), s. 2; 1992, c. 41, s. 2; 2019, c. 25, s. 270.
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Determination of Challenge for Cause

Determination of challenge for cause

640 (1) If a challenge is made on a ground mentioned in section 638 [challenge for cause – grounds], the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn.

Exclusion order

(2) On the application of the accused or prosecutor or on the judge’s own motion, the judge 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 judge is of the opinion that the order is necessary to preserve the impartiality of the jurors.

R.S., 1985, c. C-46, s. 640; 2008, c. 18, s. 26; 2011, c. 16, s. 9; 2019, c. 25, s. 272.

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Subjects of Challenge

Race-based Challenge

Challenge for racial bias requires that the applicant "establish that there is widespread bias in the community and that some prospective jurors may not be capable of setting aside their bias." The recognized prejudice against visible minorities is widespread enough that a challenge for cause will be established in most cases.

Given the difficulty of presenting evidence of racial prejudice within a community, a judge may infer it based on evidence of national or provincial wide prejudice.

Variations of race-based challenges have not always been accepted.

There is broad acceptance that where the warranted to engage in a challenge for cause on the basis of race, the following question (from Parks) is permissible:

"Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is ... black... and the deceased is a white man?"

Gang-relation

Where an offence is gang-related and that relation creates a "reasonable risk of bias", jurors may be challenged. Where it is adjunct to racial bias it will more likely be relevant to jury selection.

Other Subjects

Challenge on the basis of national origin has been largely rejected.

There have been a few requests for challenge on the basis of bias towards those suffering from mental illness such as schizophrenia or psychosis.

Challenge for Cause (Prior to September 19, 2019)

• Challenge for Cause (Prior to September 19, 2019)