Peremptory Challenge (Prior to September 19, 2019)

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General Principles

Section 269 of Bill C-75 Repealed s. 634 on September 19, 2019 removing pre-emptory challenges

NOTE: R v Chouhan, 2020 CanLII 75817 (SCC) found that the provisions were retrospective and applies to proceeding commenced before 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.

Peremptory challenges

634 (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638 [challenge for cause – grounds].

Maximum number

(2) Subject to subsections (2.1) to (4) , the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

If 13 or 14 jurors

(2.01) If the judge orders under subsection 631(2.2) [power to swear more than 12 jurors] 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) [select replacement juror after discharge], 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.
[annotation(s) added]

– CCC

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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:

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.

Constitutionality

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.

Retrospectivity

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.

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.