Jury Procedure
| This page was last substantively updated or reviewed October 2020. (Rev. # 80804) |
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General Principles
After the jury instructions are given the jury "shall retire" to deliberate on the trial:
- 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.
Empanelling a Jury
- Who shall be the jury
643 (1) The 12, 13 or 14 jurors who are sworn in accordance with this Part [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)] and present at the commencement of the presentation of the evidence on the merits shall be the jury to hear the evidence on the merits.
- Names of jurors
(1.1) The name of each juror, including alternate jurors, who is sworn shall be kept apart until the juror is excused or the jury gives its verdict or is discharged, at which time the name shall be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.
- Same jury may try another issue by consent
(2) The court may try an issue with the same jury in whole or in part that previously tried or was drawn to try another issue, without the jurors being sworn again, but if the prosecutor or the accused objects to any of the jurors or the court excuses any of the jurors, the court shall order those persons to withdraw and shall direct that the required number of cards to make up a full jury be drawn and, subject to the provisions of this Part [Pt. XX – Procedure in Jury Trials and General Provisions (ss. 574 to 672)] relating to challenges, orders to excuse and directions to stand by, the persons whose cards are drawn shall be sworn.
- Sections directory
(3) Failure to comply with the directions of this section or section 631 [procedure for jury cards], 635 [ordering of challenges for cause – general] or 641 [calling persons for jury after pool is depleted] does not affect the validity of a proceeding.
R.S., 1985, c. C-46, s. 643; 1992, c. 41, s. 5; 2001, c. 32, s. 42; 2002, c. 13, s. 58; 2011, c. 16, s. 12.
[annotation(s) added]
Jury Separation During Trial
- Separation of jurors
647 (1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.
- Keeping in charge
(2) Where permission to separate under subsection (1) [jurors may separate until deliberation] cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.
- Non-compliance with subsection (2)
(3) Failure to comply with subsection (2) [when separation not allowed outside communication not permitted] does not affect the validity of the proceedings.
- Empanelling new jury in certain cases
(4) Where the fact that there has been a failure to comply with this section or section 648 [restriction on publication of trial proceedings without jury present and breach offence] is discovered before the verdict of the jury is returned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and
- (a) direct that the accused be tried with a new jury during the same session or sittings of the court; or
- (b) postpone the trial on such terms as justice may require.
- Refreshment and accommodation
(5) The judge shall direct the sheriff to provide the jurors who are sworn with suitable and sufficient refreshment, food and lodging while they are together until they have given their verdict.
R.S., c. C-34, s. 576; 1972, c. 13, s. 48.
[annotation(s) added]
- Sequestration
The judge has discretion to determine when to sequester the jury.[1]
- ↑ Demeter v R, 1977 CanLII 25 (SCC), [1978] 1 SCR 538, per Martland J
Privacy of the Jury
Publication Ban
Section 648 prohibits anyone from publishing, broadcasting, or transmitting any part of a trial that occurs outside of the presence of the jury.[1]
- Restriction on publication
648 (1) After permission to separate is given to members of a jury under subsection 647(1) [jurors may separate until deliberation], no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
- Offence
(2) Every one who fails to comply with subsection (1) [restriction on publication of trial proceedings without jury present] is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 21]
R.S., 1985, c. C-46, s. 648; 2005, c. 32, s. 21.
[annotation(s) added]
- ↑ See also Public and Media Restrictions
Support Persons
Section 649 prohibits any person providing support services to a disabled juror from disclosing any information obtained from the jury while outside of the court.[1]
Jury secrecy does not prevent the admission of fresh evidence including annotations found on transcripts located in the jury room.[2]
- ↑ There is an exception for where the information is sought for the purposes of an investigation into an offence under 139 or where it is disclosed in open court.
- ↑ R v Richard, 2013 MBCA 10 (CanLII), 299 Man R (2d) 1, per Cameron JA
Communication with Jurors
Communications between the jury and the court or counsel must be with the presence of the accused.[1]
It is improper for the trial judge to have "private conversations" with potential jurors during selection that is within the earshot of accused counsel but not accused.[2]
Communication between the jury and all the parties in court should not occur through an intermediary such as a sheriff.[3]
Secrecy of jury deliberations is an essential part of the right to trial by jury under s. 11(f).[4]
- ↑ See s. 650 - requires the accused present during trial
- ↑ R v Kakegamic, 2010 ONCA 903 (CanLII), 265 CCC (3d) 420, per Doherty JA
- ↑ R v Bagadiong, 2013 BCCA 538 (CanLII), per Hall JA - judge asked sheriff to make inquiry of jury to explain their note
- ↑ see R v Pan; R v Sawyer, 2001 SCC 42 (CanLII), [2001] 2 SCR 344, per Arbour J
Jury Note-taking
Where the trial judge permits a jury asks to take notes while reviewing evidence, a caution may be needed reminding the jury that it is not the member with the most detailed notes that should be relied upon but rather each jury member must rely on their own memory.[1]
- ↑ e.g. R v Habib, 2000 CanLII 16824 (ON CA), 147 CCC (3d) 555, at para 5
Deadlocked Jury
Jury Compensation
Jury compensation is typically set out by the provincial Juries Act.[1]
The Court's inherent jurisdiction over the trial process permits the Judge to enhance the statutory amount.[2]
- ↑ e.g. Juries Act, RSO 1990, c J.3
- ↑ R v Huard, 2009 CanLII 15442 (ONSC), 243 CCC (3d) 496, per Thomas J
Deliberation and Verdict
Juries deliberate every day that they are "retired" to make a decision the case.[1] This also permits them to seek the assistance of the court in tasks such as reading back evidence.[2]
While the jury is deliberating they must not separate.[3] An officer of the court must keep charge of the jury while together to ensure they do not communicate with anyone outside of the jury without the judge's consent.[4]
Juries can render a verdict any day of the week. The fact that it is a Sunday or a Holiday does not affect the trial process.[5]
Under s. 670, a judgement will not be stayed or reverse solely for the reason of "any irregularity in the summoning or impaneling of the jury" or the "reason that a person who served on the jury was not returned as a juror by a sheriff or other officer." The section states:
- Formal Defects in Jury Process
- Judgment not to be stayed on certain grounds
670 Judgment shall not be stayed or reversed after verdict on an indictment
- (a) by reason of any irregularity in the summoning or empanelling of the jury; or
- (b) for the reason that a person who served on the jury was not returned as a juror by a sheriff or other officer.
R.S., c. C-34, s. 598.
Under s. 671, a verdict cannot be quashed or impeached only by reason that there was an omission to follow the procedure of "qualification, selection, balloting or distribution of jurors, the preparation of the jurors' book, the selecting of jury lists, or the drafting of panels from the jury lists". The section states:
- Directions respecting jury or jurors directory
671 No omission to observe the directions contained in any Act with respect to the qualification, selection, balloting or distribution of jurors, the preparation of the jurors’ book, the selecting of jury lists or the drafting of panels from the jury lists is a ground for impeaching or quashing a verdict rendered in criminal proceedings.
R.S., c. C-34, s. 599.
A jury is entitled to receive any type of aid that “assists them in dealing with the evidence reasonably, intelligently and expeditiously.” [6]
A jury may take copies of a slideshow presented in closing by counsel where it is useful and reliable.[7]
- ↑
see R v Baillie, 1991 CanLII 5760 (BC CA), 66 CCC (3d) 274, per Taggart JA
s. 654
- ↑
see Baillie, ibid.
- ↑ see s. 647(1) ("The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.")
- ↑ see s. 647(2) ("Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.")
- ↑ see s. 654
- ↑ See R v Bengert, 1980 CanLII 321 (BCCA), [1980] BCJ No 721, per curiam, at para 160 (BCCA)
- ↑
R v Pan, 2014 ONSC 6055 (CanLII), per Boswell J
see also Real Evidence
Inconsistent Verdict
A jury gives an inconsistent verdict when it finds the accused guilty and not guilty for the same conduct.[1]
An inconsistent verdict can be set aside where it is found to be unreasonable.[2]
The Crown may rebut an apparent inconsistency on the grounds of legal error in the instructions. The burden is "heavy" and is on the Crown. The court must be satisfied "to a high degree of certainty" that there was an error and the error:[3]
- had a material bearing on the acquittal;
- was immaterial to the conviction; and
- reconciles the inconsistency by showing that the jury did not find the accused both guilty and not guilty of the same conduct.
If these requirements are established then the verdicts are not actually inconsistent.[4]
- ↑ R v RV, 2021 SCC 10 (CanLII), per Moldaver J (7:2), at para 1
- ↑ RV, ibid., at para 28
- ↑ RV, ibid., at para 33
- ↑ RV, ibid., at para 34
Determined Facts After a Jury Trial
- Information accepted
724 (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.
- Jury
(2) Where the court is composed of a judge and jury, the court
- (a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
- (b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
- Disputed facts
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
- (a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
[omitted (b), (c), (d) and (e)]
R.S., 1985, c. C-46, s. 724; 1995, c. 22, s. 6.
A judge is "bound by the express an implied factual implications of the jury's verdict".[1]
Where the facts are uncertain, the judge is "entitled to make his or her own determination of the facts, so long as that view is consistent with the jury’s verdict".[2]
The judge must not accept any evidence that is only consistent with a verdict that was rejected by the jury.[3]
The primary principles the court must follow to determine facts subsequent to a jury trial:[4]
- The sentencing judge must determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict.
- The sentencing judge is bound by the express and implied factual implications of the jury's verdict, and must accept as proven all facts express or implied that are essential to the jury's verdict.
- The sentencing judge must not accept as fact any evidence consistent only with a verdict rejected by the jury.
- When the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical processes of the jury, but should come to his or her own independent determination of the relevant facts.
- Aggravating facts must be established beyond a reasonable doubt. Other facts must be established on a balance of probabilities.
- The sentencing judge should therefore find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
It is not necessary for the judge to derive a complete theory of the incident from the verdict. He is "required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand”[5]
- ↑
R v Brown, 1991 CanLII 73 (SCC), [1991] 2 SCR 518, per Stevenson J at p. 523 (SCR)
R v KDM, 2017 ONCA 510 (CanLII), per Benotto JA, at para 42
- ↑
KDM, ibid., at para 42
Brown, supra
R v Roncaioli, 2011 ONCA 378 (CanLII), 271 CCC (3d) 385, per Laskin JA
- ↑
R v Ferguson, 2008 SCC 6 (CanLII), [2008] 1 SCR 96, per McLachlin CJ, at para 17
R v Nelson, 2014 ONCA 853 (CanLII), 318 CCC (3d) 476, at paras 55 to 59
KDM, supra, at para 42
- ↑ Based on R v Brisson, 2009 BCSC 1606 (CanLII), BCJ No 2322, per Joyce J, at para 5, summarizing the principles in Ferguson, supra, at paras 17 to 18
- ↑ Ferguson, supra, at paras 15 to 18
Historial Procedural Powers Remain
- Saving powers of court
672 Nothing in this Act alters, abridges or affects any power or authority that a court or judge had immediately before April 1, 1955, or any practice or form that existed immediately before April 1, 1955, with respect to trials by jury, jury process, juries or jurors, except where the power or authority, practice or form is expressly altered by or is inconsistent with this Act.
R.S., c. C-34, s. 600.