Selecting Jurors From Panel

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General Principles

A jury panel consists of all persons summoned to attend court for the purpose of being evaluated as a potential member of a jury that will hear a trial.

The process of selecting jurors typically begins with the trial judge canvasing to panel for those with exemptions that would exclude them from participating in the jury trial.

Exemptions

The exemption process has two phases. First, there is the general exemptions wherein the judge considers all requests for exemption based on personal circumstances, including ineligibility based on profession, criminal record, lack of citizenship, or undue hardship. Second, there is the specific exemptions wherein the judge can exempt persons due to personal connection with parties or witnesses in the proceedings.

Procedure

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

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. From the List a jury panel is randomly created.

Selection Judge Not Necessarily Trial Judge

The judge presiding over a trial does not necessarily have to be the same judge who presides over the selection:

Presiding judge

626.1 The judge before whom an accused is tried may be either the judge who presided over matters pertaining to the selection of a jury before the commencement of a trial or another judge of the same court.
2002, c. 13, s. 51.

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Background Check on Jury Members

The Crown may ask police to do a criminal record check on potential jurors. However, any information that the Crown learns must be disclosed to the defence.

Exemptions

General Exemptions

The list of general exemptions are found in the Juries Act. They will typically include:

• those who hold political positions such as members of parliament, provincial legislature or senators.
• justice system participants including judges, lawyer, court staff and police officers.

Specific Exemptions

Persons related to or associated with persons participating in the proceedings, including accused, counsel, judge or witnesses.

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) [manner of placing juror names on cards] 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.
[omitted (2.1) and (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) [manner of placing juror names on cards], 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) [manner of drawing cards] or (3.1) [power to order calling out names on cards] 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) [manner of drawing cards], (3.1) [power to order calling out names on cards] and (4) [power to swear in jury and support persons] until 12 jurors — or 13 or 14 jurors, as the case may be, if the judge makes an order under subsection (2.2) [power to swear more than 12 jurors] — and any alternate jurors are sworn.
[omitted (6)]
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.
[annotation(s) added]

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Section 2 defines "clerk of the court".

Section 631(6) imposes a ban on publication of information that tends to identify jurors.

Excusing Jurors During Selection

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) [manner of drawing cards] or (3.1) [power to order calling out names on cards] 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.
[annotation(s) added]

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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.

A judge may exclude a potential juror on the basis that they are not vaccinated from COVID-19.

Summoning Potential Jurors When Panel is Exhausted

Where the Panel 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 [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] 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) [summoning other jurors when panel exhausted – authority] 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 [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] 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.
[annotation(s) added]

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